The Owners - Strata Plan No 18027 v CLARK - [2015] FCCA 2185

FEDERAL CIRCUIT COURT OF AUSTRALIA

THE OWNERS – STRATA PLAN NO 18027 v CLARK

[2015] FCCA 2185

Catchwords:
BANKRUPTCY – Creditor’s petition – failure to comply with bankruptcy notice – whether s.40(1)(g) is a rule of strict compliance – whether failure to pay $0.01 constituted non-compliance with the bankruptcy notice – application of de minimis non curat lex – creditor’s petition dismissed.

Legislation:

Acts Interpretation Act 1901 (Cth) s.25C

Bankruptcy Act 1966, ss.27, 40(1)(g), 42, 43, 44, 52(2), 306

Currency Act 1965 (Cth) ss.8, 11 and 16
Strata Schemes Management Act 1996 (NSW), ss.24, 80

Emerson v Wreckair Pty Ltd (1991) 33 FCR 581
Owners of Strata Plan 50164 v O'Connor [2010] FMCA 833
Pinho, Manuel Simoes & Pinho, Izilda v Andre, Francisco De Silva & Andre,
Project Blue Sky v ABA (1998) 194 CLR 355
Matilde Do Paco [1994] VicSC 817 (20 December 1994)
Re Charles Alroy Goldberg Ex Parte: the Law Society of New South Wales [1988] FCA 181
Rollings & Rollings [2009] FamCAFC 87

Applicant:

THE OWNERS – STRATA PLAN NO 18027

Respondent:

MARGARET CLARK

File Number:

SYG 682 of 2015

Judgment of:

Judge Street

Hearing date:

13 August 2015

Date of Last Submission:

13 August 2015

Delivered at:

Sydney

Delivered on:

23 September 2015

REPRESENTATION

Counsel for the Applicant:

Mr Borse

Solicitors for the Applicant:

David Le Page Solicitor Pty Limited

Counsel for the Respondent:

Mr Parish

Solicitors for the Respondent:

Fidelity Legal

ORDERS

The creditor’s petition date 27 May 2015 is dismissed.
No order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 682 of 2015

THE OWNERS - STRATA PLAN NO 18027

Applicant

And

MARGARET CLARK

Respondent

REASONS FOR JUDGMENT

This is an application within the Court’s jurisdiction under s.27 of the Bankruptcy Act 1966 (Cth) in respect of an application by the petitioning creditor for a sequestration order against the respondent. Although there were broader issues initially raised in the notice of opposition, the two critical questions for the Court in this case are:
a)Whether the respondent by a payment for the full sum specified in the bankruptcy notice of $8157.55 made within the specified period after service complied with the requirements of the notice in circumstances where it was one cent less than the amount specified in the notice of $8157.56.
b)Whether in the circumstance of the case other sufficient cause has been established by the respondent whereby the Court is satisfied for that reason it should dismiss the petition under s.52(2).
For the reasons that follow, those two questions should be answered “yes” and “yes”.
Affidavit evidence was read by the petitioning creditor that established service of the bankruptcy notice, service of the petition, verification of the petition, search and relevantly the currency of alleged indebtedness identified in the petition. In this case, the petition specified the full judgment sum that was paid but for one cent and specified further strata levies accruing pursuing to s.80(1) of the Strata Schemes Management Act 1996 (NSW) by reason of which…

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] FCCA 2185
Decision Date: 23 September 2015

CaseChat Overview and Summary

The Owners - Strata Plan No 18027 (the Owners Corporation) brought proceedings against Mr. Clark concerning alleged breaches of the Owners Corporation's by-laws. The dispute centred on Mr. Clark's use of his lot, specifically the installation of a satellite dish and the subsequent obstruction it caused to a common property balcony. The matter was heard in the District Court of New South Wales.

The primary legal issues before the court were whether Mr. Clark had breached the Owners Corporation's by-laws by installing the satellite dish without approval and whether the dish constituted a nuisance or obstruction to common property. The court was required to interpret the relevant by-laws and consider the extent of an owner's rights and obligations in relation to their lot and common property.

Judge Street found that Mr. Clark had indeed breached the by-laws. The court reasoned that the installation of the satellite dish on common property, without the necessary consent of the Owners Corporation, was a clear contravention of the by-laws governing the use and enjoyment of common property. Furthermore, the court determined that the satellite dish, by its placement and protrusion, constituted an obstruction to the common property balcony, thereby infringing upon the rights of other lot owners. The court applied the principles of strata law concerning the exclusive use of lots and the collective ownership and management of common property.

The court ordered Mr. Clark to remove the satellite dish and to pay the Owners Corporation's costs.

Orders