The Owners - Strata Plan No. 1813 v Keevers - [2022] NSWCATCD 104

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: The Owners – Strata Plan No. 1813 v Keevers [2022] NSWCATCD 104
Hearing dates: 28 April 2022
Date of orders: 06 July 2022 [amended 19 July 2022]
Decision date: 06 July 2022
Jurisdiction: Consumer and Commercial Division
Before: Kevin Andronos SC, Senior Member
Decision:
Pursuant to Section 63 of the Civil and Administrative Tribunal Act 2013, reasons published are amended to read as follows:
In matter SC 22/03898
(1) Pursuant to s. 86(1) of the Strata Schemes Management Act 2015 (the SSMA), the Respondent pay to the Applicant the sum of $18,000.00.
(2) Pursuant to ss. 86(1) and 85(1) of the SSMA the Respondent pay to the Applicant interest on the sum outstanding under order 1 at the rate of 10% per annum from 16 September 2021 to the date of payment.
(3) The Respondent pay the costs of the Applicant as assessed or agreed.
In matter SC 21/50064
(1) Pursuant to s. 86(1) of the SSMA, the Respondent pay to the Applicant the sum of $8,944.58.
(2) Pursuant to ss. 86(1) and 85(1) of the SSMA the Respondent pay to the Applicant interest on the sum outstanding under order 1 at the rate of 10 % per annum from 2 November 2021 to the date of payment.
(3) The Respondent pay the costs of the Applicant as assessed or agreed.
In matter SC 21/51320
(1) Pursuant to s. 86(1) of the SSMA, the Respondent pay to the Applicant the sum of $18,000.00.
(2) Pursuant to ss. 86(1) and 85(1) of the SSMA the Respondent pay to the Applicant interest on the sum outstanding under order 1 at the rate of 10% per annum from 16 November 2021 to the date of payment.
(3) The Respondent pay the costs of the Applicant as assessed or agreed.

Catchwords:
LAND LAW – Strata schemes – Recovery of unpaid contributions and interest

Legislation Cited:
Strata Schemes Management Act 2015 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Australian Consumer Law (NSW)
Body Corporate and Community Management Act 1997 (Qld)
Evidence Act 1995 (NSW)
Legal Profession Uniform Law (NSW)

Cases Cited:
Expense Reduction Analysts Group Pty Limited v Armstrong Strategic Management Pty Limited (2013) 250 CLR 303
Aon Risk Management Services v Australian National University (2009) 239 CLR 175
O’Neill v T and I Engines Pty Limited [2015] NSWCATAP 77
Sayhoun v Owners Corporation Strata Plan 75123 [2014] NSWCATAP 112
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594
Dunlop & Anor v Body Corporate for Port Douglas Queenslander CTS 886 & Ors (No 2) [2021] QSC 265
Village Cay Marina v Acland [1998] 2 BCLC 327
Briginshaw v Briginshaw (1938) 60 CLR 336
Louth v Diprose (1992) 175 CLR 621
ACCC v CG Berbatis Holdings [2003] HCA 18, (2003) 214 CLR 51
ASIC v Kobelt [2019] HCA 18, (2019) 267 CLR 1
ACCC v Geowash Pty Limited [2019] FCA 72

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: [2022] NSWCATCD 104
Decision Date: 06 July 2022

CaseChat Overview and Summary

The Owners - Strata Plan No. 1813 sought recovery of unpaid contributions and interest from Keevers in three separate proceedings. The Strata Plan is the body corporate responsible for the administration of a strata scheme in which Keevers owns a unit. The dispute centres on the failure of Keevers to pay contributions to the strata scheme for maintenance and other expenses. The matter was heard in the Civil and Administrative Tribunal of New South Wales.

The primary legal issue was whether the tribunal had the jurisdiction to order the recovery of unpaid contributions and interest under the Strata Schemes Management Act 2015. Additionally, the court had to determine the amount of unpaid contributions and interest owed by Keevers, as well as whether the tribunal could order the payment of costs by Keevers. The tribunal also needed to consider whether the statutory interest rates provided in the Act were applicable.

The tribunal found that it had jurisdiction to order the recovery of unpaid contributions and interest under the Strata Schemes Management Act 2015. The tribunal assessed the amount of unpaid contributions and interest owed by Keevers and found that Keevers had failed to pay the required contributions. The tribunal also determined that the statutory interest rates provided in the Act were applicable. As a result, the tribunal ordered Keevers to pay the unpaid contributions and interest, as well as the costs of the proceeding.

The tribunal ordered Keevers to pay the Applicants the sum of $18,000, $8,944.58, and $18,000 respectively, with interest at the rate of 10% per annum from specified dates to the date of payment, and the costs of the proceeding as assessed or agreed.

Orders

Orders of the court

Pursuant to Section 63 of the Civil and Administrative Tribunal Act 2013, reasons published are amended to read as follows:

In matter SC 22/03898

(1) Pursuant to s. 86(1) of the Strata Schemes Management Act 2015 (the SSMA), the Respondent pay to the Applicant the sum of $18,000.00.

(2) Pursuant to ss. 86(1) and 85(1) of the SSMA the Respondent pay to the Applicant interest on the sum outstanding under order 1 at the rate of 10% per annum from 16 September 2021 to the date of payment.

(3) The Respondent pay the costs of the Applicant as assessed or agreed.

In matter SC 21/50064

(1) Pursuant to s. 86(1) of the SSMA, the Respondent pay to the Applicant the sum of $8,944.58.

(2) Pursuant to ss. 86(1) and 85(1) of the SSMA the Respondent pay to the Applicant interest on the sum outstanding under order 1 at the rate of 10 % per annum from 2 November 2021 to the date of payment.

(3) The Respondent pay the costs of the Applicant as assessed or agreed.

In matter SC 21/51320

(1) Pursuant to s. 86(1) of the SSMA, the Respondent pay to the Applicant the sum of $18,000.00.

(2) Pursuant to ss. 86(1) and 85(1) of the SSMA the Respondent pay to the Applicant interest on the sum outstanding under order 1 at the rate of 10% per annum from 16 November 2021 to the date of payment.

(3) The Respondent pay the costs of the Applicant as assessed or agreed.

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:	The Owners – Strata Plan No. 1813 v Keevers [2022] NSWCATCD 104
Hearing dates:	28 April 2022
Date of orders:	06 July 2022 [amended 19 July 2022]
Decision date:	06 July 2022
Jurisdiction:	Consumer and Commercial Division
Before:	Kevin Andronos SC, Senior Member
Decision:	Pursuant to Section 63 of the Civil and Administrative Tribunal Act 2013, reasons published are amended to read as follows: In matter SC 22/03898 (1) Pursuant to s. 86(1) of the Strata Schemes Management Act 2015 (the SSMA), the Respondent pay to the Applicant the sum of $18,000.00. (2) Pursuant to ss. 86(1) and 85(1) of the SSMA the Respondent pay to the Applicant interest on the sum outstanding under order 1 at the rate of 10% per annum from 16 September 2021 to the date of payment. (3) The Respondent pay the costs of the Applicant as assessed or agreed. In matter SC 21/50064 (1) Pursuant to s. 86(1) of the SSMA, the Respondent pay to the Applicant the sum of $8,944.58. (2) Pursuant to ss. 86(1) and 85(1) of the SSMA the Respondent pay to the Applicant interest on the sum outstanding under order 1 at the rate of 10 % per annum from 2 November 2021 to the date of payment. (3) The Respondent pay the costs of the Applicant as assessed or agreed. In matter SC 21/51320 (1) Pursuant to s. 86(1) of the SSMA, the Respondent pay to the Applicant the sum of $18,000.00. (2) Pursuant to ss. 86(1) and 85(1) of the SSMA the Respondent pay to the Applicant interest on the sum outstanding under order 1 at the rate of 10% per annum from 16 November 2021 to the date of payment. (3) The Respondent pay the costs of the Applicant as assessed or agreed.
Catchwords:	LAND LAW – Strata schemes – Recovery of unpaid contributions and interest
Legislation Cited:	Strata Schemes Management Act 2015 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Australian Consumer Law (NSW) Body Corporate and Community Management Act 1997 (Qld) Evidence Act 1995 (NSW) Legal Profession Uniform Law (NSW)
Cases Cited:	Expense Reduction Analysts Group Pty Limited v Armstrong Strategic Management Pty Limited (2013) 250 CLR 303 Aon Risk Management Services v Australian National University (2009) 239 CLR 175 O’Neill v T and I Engines Pty Limited [2015] NSWCATAP 77 Sayhoun v Owners Corporation Strata Plan 75123 [2014] NSWCATAP 112 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 Dunlop & Anor v Body Corporate for Port Douglas Queenslander CTS 886 & Ors (No 2) [2021] QSC 265 Village Cay Marina v Acland [1998] 2 BCLC 327 Briginshaw v Briginshaw (1938) 60 CLR 336 Louth v Diprose (1992) 175 CLR 621 ACCC v CG Berbatis Holdings [2003] HCA 18, (2003) 214 CLR 51 ASIC v Kobelt [2019] HCA 18, (2019) 267 CLR 1 ACCC v Geowash Pty Limited [2019] FCA 72