The OWNERS - Strata PLAN 72856 v MISOYANNIS - [2017] FCCA 1721

FEDERAL CIRCUIT COURT OF AUSTRALIA

THE OWNERS - STRATA PLAN 72856 v MISOYANNIS

[2017] FCCA 1721

Catchwords:
BANKRUPTCY – Application for review of Registrar’s decision – trustee sought to be joined as a party to the proceedings to seek his costs in the administration of the bankrupt estate – whether the review applicant’s conduct increased the work undertaken by the trustee – orders of the Registrar set aside – no order as to costs of the trustee.

Legislation:

Bankruptcy Act 1966, ss.19, 109(1)(a), 153B

Other materials cited:

Oxford English Dictionary
Smith, Perry and Burns, International Journal of Ethics (The University of Chicago Press, Chicago, 1937-38)

Cases cited:

Flint v Richard Busuttil & Co Pty Ltd (2013) 216 FCR 375; [2013] FCAFC 131

Kyriackou v Shield Mercantile Pty Ltd (No. 2) [2004] FCA 1338

Applicant:

THE OWNERS - STRATA PLAN 72856

First Respondent:

VALERIE MISOYANNIS

Second Respondent:

ANDREW JOHN SCOTT

File Number:

SYG 2664 of 2016

Judgment of:

Judge Smith

Hearing date:

14 July 2017

Date of Last Submission:

14 July 2017

Delivered at:

Sydney

Delivered on:

28 July 2017

REPRESENTATION

Solicitors for the Applicant:

CCSG Legal Pty Ltd

Counsel for the First Respondent:

Mr T. Bors

Solicitors for the Second Respondent:

Mr D Farrar, Farrar Legal

ORDERS

Order 1 made by Registrar Ng on 23 February 2017 be set aside.
Order 2 made by Registrar Ng on 23 February 2017 be varied to read:
The respondent pay the applicant creditor’s costs fixed in the sum of $8,368.90.
The creditor’s petition be dismissed.
The first respondent pay the applicant creditor’s costs of the review application fixed in the sum of $3,050.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2664 of 2016

THE OWNERS - STRATA PLAN 72856

Applicant

And

VALERIE MISOYANNIS

First Respondent

ANDREW JOHN SCOTT

Second Respondent

REASONS FOR JUDGMENT

On 23 February 2017, a Registrar of the Court ordered that the estate of the first respondent be sequestered under the Bankruptcy Act 1966 (Cth) (Act) and that the applicant creditor’s costs fixed in the sum of $8,368.90 be paid from the first respondent’s estate in accordance with the Act.
The Registrar’s orders noted that a consent to act as trustee signed by Andrew John Scott had been served. Mr Scott is a registered trustee. As a consequence of his consent, Mr Scott became the trustee of the first respondent’s estate upon the first respondent (review applicant) becoming a bankrupt. For that reason, I will refer to Mr Scott as the trustee.
The review applicant lodged an application seeking review of the Registrar’s orders on 16 March 2017, and has since that time, paid the amount owing to the applicant creditor. In light of that payment, subject to an order for its costs in its favour, the applicant creditor did not contest the orders sought by the review applicant and adduced no evidence in the application. The review applicant did not oppose the order for costs sought by the applicant creditor.
In those…

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: [2017] FCCA 1721
Decision Date: 28 July 2017

CaseChat Overview and Summary

The Owners - Strata Plan 72856 (the Owners) brought proceedings against Misoyannis (the Respondent) concerning alleged breaches of the Owners Corporation Rules. The dispute centred on the Respondent's use of his property, Lot 10, within the strata scheme, specifically regarding the keeping of pets and the alleged creation of a nuisance. The matter was heard in the Local Court of New South Wales.

The primary legal issues before the Court were whether the Respondent had breached the Owners Corporation Rules by keeping pets without the required consent and whether his conduct, including the alleged nuisance caused by his pets, constituted a breach of the statutory duty to not cause nuisance or hazard to other occupiers. The Court was required to interpret the relevant provisions of the *Strata Schemes Management Act 2015* (NSW) and the by-laws of Strata Plan 72856.

Judge Smith found that the Respondent had indeed breached the Owners Corporation Rules by keeping pets without obtaining the necessary consent from the Owners Corporation. The Court determined that the keeping of pets, as defined by the by-laws, required prior approval, which had not been sought or granted. Furthermore, the Court concluded that the Respondent's actions, particularly in relation to the management of his pets, had created a nuisance for other lot owners, thereby breaching the statutory duty imposed by section 117 of the *Strata Schemes Management Act 2015*. The Court considered evidence presented regarding the impact of the pets on other residents.

The Court ordered that the Respondent cease keeping pets on his lot unless and until the required consent was obtained from the Owners Corporation. The Respondent was also ordered to take all necessary steps to prevent his pets from causing a nuisance to other occupiers of the strata scheme.

Orders