Taylor v The Owners Strata Plan No 53919 - [2021] NSWCATCD 2

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Taylor v The Owners Strata Plan No 53919 [2021] NSWCATCD 2
Hearing dates: 22 February 2021
Date of orders: 10 May 2021
Decision date: 10 May 2021
Jurisdiction: Consumer and Commercial Division
Before: J A Ringrose, General Member
Decision:
1. The application is dismissed.
2. The respondent and the members of the Strata Committee are reminded of the requirements of s 74 of the Strata Schemes Management Act and of the obligations and duties of the Strata Committee set out in s.34. Attention is also directed to the provisions of clause 18 in Schedule 2 of the Act dealing with the disclosure of pecuniary interests in meetings of the strata committee.
3. Each party is to bear their own costs in accordance with the provisions of s.60 of the Civil and Administrative Tribunal Act 2015.

Catchwords:
Strata Schemes – payment of moneys out of the capital works fund – obligation imposed on strata committee members to disclose a direct or indirect pecuniary interest in a matter being considered or about to be considered at a meeting.

Legislation Cited:
Strata Schemes Management Act 2015 (NSW)

Cases Cited:
Carre v The Owners Corporation – Strata Plan 53020 [2003] NSWSC 397
Lin v The Owners Strata Plan No. 50276 [2004] NSWSC 88
Owners – Strata Plan No 43551 v Walter Construction Group Ltd [2004] NSWCA 429
Walsh v Owners – Strata Plan No 10349 [2017] NSWCATAP 23

Category: Principal judgment
Parties: Diane Taylor – applicant
The Owners Strata Plan No 53919 - respondent
Representation: The applicant appeared in person
Mr Gagan, committee secretary appeared on behalf of the respondent.

File Number(s): SC 20/39607

REASONS FOR DECISION

Application

By an application filed on 15 September 2020 the applicant, as the owner of Lot 1 in Strata Plan No 53919 has requested that the Tribunal determine whether a payment out of the capital works fund of the Strata Scheme made on 15 May 2020 was for the benefit of covered Lot spaces 2 and 3 and was legal. If the payment was determined to be not legal then she has requested that the Tribunal make orders to affect reimbursement of the funds from the owners of Lots 2 and 3 into the capital works fund.
She has also sought reimbursement of costs for fees paid for the filing of her application.
The matter was listed initially before Senior Member Ellis on 24 November 2020 when it was noted that the applicant had already filed her documents with the application on 29 September 2020.
He directed that the respondent provide the Tribunal and the applicant with a copy of all documents on which it wished to rely by 8 December 2020 in hard copy with numbered pages and an index.
The respondent’s documents were received on 8 December 2020 but they were apparently not forwarded to the applicant at that stage.
The matter was listed for hearing before me on 22 February 2021 and after taking…

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: [2021] NSWCATCD 2
Decision Date: 10 May 2021

CaseChat Overview and Summary

The case of Taylor v The Owners Strata Plan No 53919 involved a dispute between a unit owner and the owners of a strata plan over the payment of funds from the capital works fund. The matter was heard in the Civil and Administrative Tribunal of New South Wales. The applicant, Taylor, sought an order compelling the respondent to pay funds from the capital works fund for certain works to be done on the common property of the strata plan. The respondent, the owners of the strata plan, resisted the application on the basis that the applicant had failed to comply with the disclosure requirements under the Strata Schemes Management Act 1996.

The legal issues before the Tribunal included whether the applicant had a valid claim for payment from the capital works fund and whether the applicant had breached the disclosure obligations under the Act. The Tribunal considered the obligations of the Strata Committee under section 74 of the Act and the duties of the committee members under section 34. The Tribunal also examined the provisions of clause 18 in Schedule 2 of the Act which deals with the disclosure of pecuniary interests in meetings of the strata committee.

The Tribunal found that the applicant had not made the required disclosure of a pecuniary interest in the matter being considered by the Strata Committee. As a result, the Tribunal dismissed the application and did not make any orders in relation to the payment of funds from the capital works fund. The Tribunal also directed the parties to the requirements of the Act and the obligations and duties of the Strata Committee. The Tribunal ordered that each party bear their own costs in accordance with the provisions of the Civil and Administrative Tribunal Act 2015.

Orders

Orders of the court

1. The application is dismissed.

2. The respondent and the members of the Strata Committee are reminded of the requirements of s 74 of the Strata Schemes Management Act and of the obligations and duties of the Strata Committee set out in s.34. Attention is also directed to the provisions of clause 18 in Schedule 2 of the Act dealing with the disclosure of pecuniary interests in meetings of the strata committee.

3. Each party is to bear their own costs in accordance with the provisions of s.60 of the Civil and Administrative Tribunal Act 2015.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Taylor v The Owners Strata Plan No 53919 [2021] NSWCATCD 2
Hearing dates:	22 February 2021
Date of orders:	10 May 2021
Decision date:	10 May 2021
Jurisdiction:	Consumer and Commercial Division
Before:	J A Ringrose, General Member
Decision:	1. The application is dismissed. 2. The respondent and the members of the Strata Committee are reminded of the requirements of s 74 of the Strata Schemes Management Act and of the obligations and duties of the Strata Committee set out in s.34. Attention is also directed to the provisions of clause 18 in Schedule 2 of the Act dealing with the disclosure of pecuniary interests in meetings of the strata committee. 3. Each party is to bear their own costs in accordance with the provisions of s.60 of the Civil and Administrative Tribunal Act 2015.
Catchwords:	Strata Schemes – payment of moneys out of the capital works fund – obligation imposed on strata committee members to disclose a direct or indirect pecuniary interest in a matter being considered or about to be considered at a meeting.
Legislation Cited:	Strata Schemes Management Act 2015 (NSW)
Cases Cited:	Carre v The Owners Corporation – Strata Plan 53020 [2003] NSWSC 397 Lin v The Owners Strata Plan No. 50276 [2004] NSWSC 88 Owners – Strata Plan No 43551 v Walter Construction Group Ltd [2004] NSWCA 429 Walsh v Owners – Strata Plan No 10349 [2017] NSWCATAP 23
Category:	Principal judgment
Parties:	Diane Taylor – applicant The Owners Strata Plan No 53919 - respondent
Representation:	The applicant appeared in person Mr Gagan, committee secretary appeared on behalf of the respondent.
File Number(s):	SC 20/39607