The Owners - Strata Plan 68523 v Peter Drury

Local Court

New South Wales

Medium Neutral Citation:

The Owners - Strata Plan 68523 v Peter Drury [2011] NSWLC 3

Hearing dates:

2 February 2011

Decision date:

08 February 2011

Jurisdiction:

Civil

Before:

Magistrate Tsavdaridis

Decision:

1. Application by Defendant/Cross-Claimant for leave to vacate hearing date of 2 February 2011 - Refused.

2. Application by Plaintiff/Cross-Defendant for leave to proceed on an ex parte basis - Granted.

3. Defence struck out for want of prosecution.

4. Judgment for the Plaintiff.

5. Cross-Claim dismissed for want of prosecution.

Catchwords:

Claim for payment of strata levies - Application to vacate hearing date - No appearance by Defendant - Medical certificate faxed to Court - Application to proceed ex parte

Legislation Cited:

Strata Schemes Management Act 1996 (NSW)
Civil Procedure Act 2005 (NSW)
Civil Procedure Regulation 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Magjarraj v Asteron Life Limited
[2009] NSWSC 1433
Coshott v The Owners of Strata Plan No. 48892 [2006] NSWSC 308
Coshott v The Owners SP 48892
[2008] NSWSC 854
Owners of Strata Plan 36131 v Dimitriou
[2009] NSWCA 27

Category:

Principal judgment

Parties:

The Owners - Strata Plan 68523 (Plaintiff/Cross-Defendant)
Peter Drury (Defendant/Cross-Claimant)

Representation:

Mr Daniel Radman, Grace Lawyers (Plaintiff/Cross-Defendant)
Defendant unrepresented and not present

File Number(s):

31344 of 2009

Reasons for Decision

1. These proceedings arise from an action commenced by the Owners' Corporation of Strata Plan 68523 seeking from the Defendant payment of unpaid strata levies in respect of Lot 21 (Unit 19, 24 Scott Street, Byron Bay) and Lot 22 (Unit 20, 24 Scott Street, Byron Bay), of which the Defendant is the registered proprietor. As a result of being put to the task of proceeding against the Defendant on a litigated basis, the Plaintiff also claims costs and interest pursuant to specialist provisions dealing with the administration of strata plans contained within the Strata Schemes Management Act 1996 (NSW), as distinct from the usual course of matters in this jurisdiction which ground applications for costs and interest in the Civil Procedure Act 2005 (NSW) and/or the Uniform Civil Procedure Rules 2005 (NSW).

1. The Statement of Claim in this matter was filed on or about 18 June 2009 and, following a lengthy history of timetable and case management directions, the matter was ultimately set down for hearing on 2 February 2011.

Chronology

1. On or about 18 June 2009, the Plaintiff issued a Statement of Claim seeking an amount of $33,297.66 for unpaid levies, interest and costs. Between June 2009 and November 2009, the Plaintiff made several attempts to locate the Defendant in order to effect service of the Statement of Claim on him.

1. On or about 24 November 2009, the Plaintiff filed a Notice of Motion seeking an order that leave be granted to amend the Statement of Claim and that service of the Statement of Claim and Amended Statement of Claim be effected by substituted service on the Defendant's then solicitor.

1. On or about 30 November 2009, the Court made orders granting leave to…