Tan v The Owners Strata Plan No 22014 - [2015] NSWSC 71

Supreme Court

New South Wales

Medium Neutral Citation: Tan v The Owners Strata Plan No 22014 [2015] NSWSC 71
Hearing dates: 24 November 2014
Date of orders: 19 February 2015
Decision date: 19 February 2015
Jurisdiction: Equity Division
Before: Robb J
Decision:
1) The Court will make an order that orders 3 and 4 made by the Court on 26 August 2014 be set aside

2) The parties are to bring in short minutes of order to implement the order proposed in order 1 and the other matters referred to in par 79 of these reasons for judgment

Catchwords: PROCEDURE – civil – judgments and orders – application to set aside consent orders that owners corporation indemnify plaintiff lot owners in proceedings and pay costs of defendants in those proceedings – where second defendant appointed as strata managing agent under Strata Schemes Management Act 1996 (NSW), s 162 with all powers of executive committee of owners corporation – where executive committee resolutions appointing legal representative and instructing it to sign consent orders on behalf of owners corporation invalid because only second defendant as strata managing agent had authority to exercise functions of executive committee – rule in Harvey v Phillips – UCPR, r 36.16(2)(b) – where appearance of owners corporation ineffective at hearing during which consent orders were made because legal representatives for owners corporation had no valid retainer
Legislation Cited: Strata Schemes Management Act 1996 (NSW), ss 32, 80D, 162, 190
Uniform Civil Procedure Rules (NSW), r 36.16(2)(b)
Cases Cited: Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58
AVS Group of Companies v Commissioner of Police [2010] NSWCA 81; (2010) 78 NSWLR 3002
Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235
Owston Nominees No 2 Pty Ltd v Branair Pty Ltd [2003] FCA 629; (2003) 129 FCR 558
Taheri v Vitek [2014] NSWCA 209
Vitek v Taheri [2013] NSWSC 589
Category: Procedural and other rulings
Parties: Mary Jane Magney (applicant)
The Owners – Strata Plan No 22014 (first respondent)
Patrick Tian Keng Tan (second respondent)
Ian Walters (third respondent)
Whelan Property Group (fourth respondent)
Janette Porter (fifth respondent)
Representation:
Counsel: G Sirtes SC/A Avery-Williams (applicant)
N Cotman SC (first, second, third respondents)
D Hand (fifth respondent)
Solicitors: Halls Strata Law (applicant)
Terrett Lawyers (first, second, third respondents)
Daniel Russell (fourth respondent)
Mills Oakley (fifth respondent)

File Number(s): 2014/176516
Publication restriction: None

Judgment

This is an application for an order setting aside a number of orders that I made in these proceedings on 26 August 2014.
The applicant is Ms Mary Jane Magney. Ms Magney is not an original party to these proceedings and was not a party at the time I made the orders on 26 August 2014. She was, on her own application, joined as the fourth defendant by order made on 19 November 2014.
The present application was heard on 24 November 2014. On 19 November 2014, Stevenson J granted certain interlocutory relief to Ms Magney and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWSC 71
Decision Date: 19 February 2015

CaseChat Overview and Summary

The dispute between Tan and The Owners Strata Plan No 22014 involved the latter's obligation to indemnify the former in proceedings against the defendants and to pay the defendants' costs. The matter was heard in the Supreme Court of New South Wales. The plaintiff sought to set aside consent orders that required the owners corporation to indemnify the plaintiff and pay the defendants' costs in proceedings. The owners corporation had appointed a strata managing agent who, according to the Strata Schemes Management Act 1996 (NSW), section 162, had all the powers of the executive committee of the owners corporation. However, the executive committee's resolutions appointing a legal representative and instructing that person to sign the consent orders on behalf of the owners corporation were invalid because only the strata managing agent had the authority to exercise the functions of the executive committee. The court applied the rule in Harvey v Phillips and considered whether the orders should be set aside under UCPR, rule 36.16(2)(b). Additionally, the court considered whether the appearance of the owners corporation was ineffective at the hearing during which the consent orders were made, as the legal representatives for the owners corporation had no valid retainer.

The court examined the authority of the strata managing agent and whether the executive committee's resolutions were valid. It was determined that the strata managing agent had the necessary authority to exercise the functions of the executive committee and that the resolutions appointing the legal representative and instructing them to sign the consent orders were invalid. The court also considered the appearance of the owners corporation at the hearing during which the consent orders were made. It was found that the appearance was ineffective because the legal representatives for the owners corporation had no valid retainer. Based on these findings, the court concluded that the consent orders should be set aside.

The court set aside the consent orders that required the owners corporation to indemnify the plaintiff and pay the defendants' costs in the proceedings. The court held that the strata managing agent had the necessary authority to exercise the functions of the executive committee, and the resolutions appointing the legal representative and instructing them to sign the consent orders were invalid. Additionally, the court found that the appearance of the owners corporation at the hearing during which the consent orders were made was ineffective because the legal representatives for the owners corporation had no valid retainer. The court's decision was based on the application of the rule in Harvey v Phillips and UCPR, rule 36.16(2)(b).

Orders