The Bunker Pty Ltd v The Owners - Strata Plan No. 63731 - [2021] NSWCATCD 66

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: The Bunker Pty Ltd v The Owners – Strata Plan No. 63731 [2021] NSWCATCD 66
Hearing dates: 9, 10 and 11 December 2020
Date of orders: 24 February 2021
Decision date: 24 February 2021
Jurisdiction: Consumer and Commercial Division
Before: Graham Ellis SC, Senior Member
Decision:
1. An order under section 237(2)(b) of the Strata Schemes Management Act 2015 appointing Wellman Strata Management Pty Ltd as strata managing agent, for a period of 2 years from the date of this order, to exercise all the functions of the chairperson, secretary, treasurer and strata committee of the Owners Corporation in relation to any matter relating to:
(a)   lot 148 and/or 167,
(b)    the registered proprietor of either of those lots, or
(c)    any tenant, lessee or licensee or either of those lots
not being a matter that affects all lot owners.
2. An order under section 229 of the Strata Schemes Management Act 2015 that the Second Respondent is provide a copy of these orders to:
(a) any current member of the strata committee, and
(b) any person who becomes a member of the strata committee during the period covered by order 1.
3.   On or before 10 March 2021 any application for costs is to be made by providing written submissions to the Tribunal and the other parties.
4.   On or before 24 March 2021 any response to any such application is to be made by providing written submissions to the Tribunal and the other parties.
5.   Any submissions on costs are to address the question of whether costs can be determined on the papers (ie without the need for a further hearing).

Catchwords:
LAND LAW – Strata title – Appointment of compulsory strata managing agent – Limited to strata committee functions – Matters relating to specific lot owners only

Legislation Cited:
Strata Schemes Management Act 1996 (NSW)
Strata Schemes Management Act 2015 (NSW)

Cases Cited:
Anderson v The Owners – Strata Plan No. 61034 [2019] NSWCATAP 61
Bischoff v Sahade [2015] NSWCATAP 135
Hoare v The Owners – Strata Plan No 73905 [2018] NSWCATCD 45
Mortlock v Owners of Strata Plan No 55434 [2006] NSWSC 363
Siewa Pty Ltd v The Owners Strata Plan 35042 [2006] NSWSC 1157

Texts Cited:
Nil

Category: Principal judgment
Parties: The Bunker Pty Ltd (Applicant)
The Owners - Strata Plan No. 63731(First Respondent)
McCormack’s NSW Pty Ltd trading as McCormack’s Strata Management (Second Respondent)
Representation: Counsel:
R Lovas and Mr F Anwar (Applicant)
T Thomas (First Respondent)
Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
Colin Biggers and Paisley (First Respondent)

File Number(s): SC 20/06562
Publication restriction: Nil

REASONS FOR DECISION

This application was commenced on 10 February 2020 by The Bunker 2017 Pty Ltd (the Bunker). The respondents are The Owners – Strata Plan 63731 (the OC) and McCormack’s NSW Pty Ltd Strata Management (McCormack’s). Originally, orders were sought under sections 72, 148 and 237 of the Strata Schemes Management Act2015 (NSW) (the SSMA)…

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.

Continue reading The Bunker Pty Ltd v The Owners - Strata Plan No. 63731

Details

AGLC: The Bunker Pty Ltd v The Owners - Strata Plan No. 63731 [2021] NSWCATCD 66
Case: [2021] NSWCATCD 66
Decision Date: 24 February 2021

CaseChat Overview and Summary

The Bunker Pty Ltd sought relief against The Owners - Strata Plan No. 63731 in the Civil and Administrative Tribunal of New South Wales. The primary issue was whether the Tribunal had the authority to appoint a compulsory strata managing agent to handle matters concerning specific lots and their owners within a strata scheme, rather than all lot owners. The dispute arose from the management of two specific lots within the strata plan, including issues related to their owners and tenants.

The central legal issue before the Tribunal was whether the statutory provisions of the Strata Schemes Management Act 2015 permitted the appointment of a strata managing agent to exercise the functions of the strata committee for specific lots and their registered proprietors, tenants, lessees, or licensees, without encompassing all lot owners. The Tribunal examined the language and scope of the relevant sections of the Act to determine if such a limited appointment was permissible.

In its reasoning, the Tribunal concluded that the statutory provisions did indeed allow for such a limited appointment of a strata managing agent. The Tribunal found that the Act's language permitted the exercise of the specified functions of the strata committee for particular lots and their associated parties, without extending to all lot owners. This interpretation was based on a textual analysis of the relevant sections and the Tribunal's understanding of the legislative intent behind the Act.

The Tribunal issued orders appointing Wellman Strata Management Pty Ltd as the compulsory strata managing agent for two years, to handle matters relating to specific lots and their registered proprietors, tenants, lessees, or licensees. The Tribunal also ordered that the Second Respondent must provide a copy of these orders to any current or future members of the strata committee. The orders further mandated that any application for costs must be submitted by a specified date, with responses to be filed by an even later date, and that any submissions on costs must address whether the matter could be resolved on the papers without a further hearing.

Orders

Orders of the court

1. An order under section 237(2)(b) of the Strata Schemes Management Act 2015 appointing Wellman Strata Management Pty Ltd as strata managing agent, for a period of 2 years from the date of this order, to exercise all the functions of the chairperson, secretary, treasurer and strata committee of the Owners Corporation in relation to any matter relating to:

(a) lot 148 and/or 167,

(b) the registered proprietor of either of those lots, or

not being a matter that affects all lot owners.

2. An order under section 229 of the Strata Schemes Management Act 2015 that the Second Respondent is provide a copy of these orders to:

(a) any current member of the strata committee, and

(b) any person who becomes a member of the strata committee during the period covered by order 1.

3. On or before 10 March 2021 any application for costs is to be made by providing written submissions to the Tribunal and the other parties.

4. On or before 24 March 2021 any response to any such application is to be made by providing written submissions to the Tribunal and the other parties.

5. Any submissions on costs are to address the question of whether costs can be determined on the papers (ie without the need for a further hearing).

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

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Medium Neutral Citation:	The Bunker Pty Ltd v The Owners – Strata Plan No. 63731 [2021] NSWCATCD 66
Hearing dates:	9, 10 and 11 December 2020
Date of orders:	24 February 2021
Decision date:	24 February 2021
Jurisdiction:	Consumer and Commercial Division
Before:	Graham Ellis SC, Senior Member
Decision:	1. An order under section 237(2)(b) of the Strata Schemes Management Act 2015 appointing Wellman Strata Management Pty Ltd as strata managing agent, for a period of 2 years from the date of this order, to exercise all the functions of the chairperson, secretary, treasurer and strata committee of the Owners Corporation in relation to any matter relating to: (a) lot 148 and/or 167, (b) the registered proprietor of either of those lots, or (c) any tenant, lessee or licensee or either of those lots not being a matter that affects all lot owners. 2. An order under section 229 of the Strata Schemes Management Act 2015 that the Second Respondent is provide a copy of these orders to: (a) any current member of the strata committee, and (b) any person who becomes a member of the strata committee during the period covered by order 1. 3. On or before 10 March 2021 any application for costs is to be made by providing written submissions to the Tribunal and the other parties. 4. On or before 24 March 2021 any response to any such application is to be made by providing written submissions to the Tribunal and the other parties. 5. Any submissions on costs are to address the question of whether costs can be determined on the papers (ie without the need for a further hearing).
Catchwords:	LAND LAW – Strata title – Appointment of compulsory strata managing agent – Limited to strata committee functions – Matters relating to specific lot owners only
Legislation Cited:	Strata Schemes Management Act 1996 (NSW) Strata Schemes Management Act 2015 (NSW)
Cases Cited:	Anderson v The Owners – Strata Plan No. 61034 [2019] NSWCATAP 61 Bischoff v Sahade [2015] NSWCATAP 135 Hoare v The Owners – Strata Plan No 73905 [2018] NSWCATCD 45 Mortlock v Owners of Strata Plan No 55434 [2006] NSWSC 363 Siewa Pty Ltd v The Owners Strata Plan 35042 [2006] NSWSC 1157
Texts Cited:	Nil
Category:	Principal judgment
Parties:	The Bunker Pty Ltd (Applicant) The Owners - Strata Plan No. 63731(First Respondent) McCormack’s NSW Pty Ltd trading as McCormack’s Strata Management (Second Respondent)
Representation:	Counsel: R Lovas and Mr F Anwar (Applicant) T Thomas (First Respondent) Solicitors: Wilshire Webb Staunton Beattie (Applicant) Colin Biggers and Paisley (First Respondent)
File Number(s):	SC 20/06562
Publication restriction:	Nil