The Owners Strata Plan No 4393 v Roberts

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Civil and Administrative Tribunal


New South Wales

  • Amendment notes
Medium Neutral Citation: The Owners - Strata Plan No 4393 v Roberts [2023] NSWCATCD 57
Hearing dates: 29 March 2023, 4 April 2023
Date of orders: 27 July 2023
Decision date: 27 July 2023
Jurisdiction:Consumer and Commercial Division
Before: M Harrowell, Deputy President
K Rosser, Principal Member
Decision:

(1) On a date to be fixed by the Registrar, the proceedings are to be listed for hearing of the following issues (Outstanding Issues):

(a) the issues of contravention identified in these reasons as requiring further submissions;

(b) whether any penalties should be imposed and, if so, how much; and

(c) costs.

(2) The following directions are made in respect of the Outstanding Issues:

(a) On or before 7 August 2023 the applicant is to file and serve any submissions in respect of the Outstanding Issues.

(b) On or before 14 August 2023 the respondents are to file and serve submissions in reply and, in the case of the first respondent, any evidence on the question of what, if any, penalty should be imposed.

Catchwords:

LAND LAW – Strata title – Civil Penalty – contravention of Tribunal order – s 247A Strata Schemes Management Act 2015 – power to impose multiple penalties for continuing contraventions – whether there has been a contravention or contraventions

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Fair Work Act 2009 (Cth)

Competition and Consumer Act 2010 (Cth)

Interpretation Act 1987 (NSW)

Strata Schemes Management Act 1996 (NSW) (repealed)

Strata Schemes Management Act 2015 (NSW)

Strata Schemes Management Amendment (Sustainability Infrastructure) Bill 2020 (NSW)

Cases Cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41

Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46

Australian Building and Construction Commissioner v Hanna [2017] FCCA 1257

Australian Building and Construction Commissioner v Pattinson [2022] HCA 13

Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73

Australian Securities and Investments Commission v Daly (Liability Hearing) [2023] FCA 290

Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; [2015] HCA 46

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on an Case) (2018) 265 FCR 208; [2018] FCAFC 126

Beckwith v The Queen[1976] (1976) 135 CLR 569; HCA 55

Director of Public Prosecutions v Priestley [2013] NSWSC 407

Environment Protection Authority v Waight 125 LGERA 399; [2003] NSWLEC 93

He Kaw Teh v R (1985) 157 CLR 523; [1985] HCA 43

Holloway v McFeeters (1956) 94 CLR 470; [1956] HCA 25

Jones v Dunkel(1959) 101 CLR 298; [1959] HCA 8

Kane's Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381

Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361

LMI v Baulderstone 53 NSWLR 31;

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Details
Case
[2023] NSWCATCD 57
Decision Date

CaseChat Overview and Summary

In the matter of The Owners Strata Plan No 4393 and Roberts, the dispute arose from the alleged contravention of a Tribunal order concerning the management of a strata title in Victoria. The applicants, the owners of the strata plan, sought to enforce compliance with a Tribunal order against the respondents, who were residents of the strata plan. The legal issues before the court were whether there had been a contravention or contraventions of the Tribunal order and, if so, whether penalties should be imposed for those contraventions.

The court considered the statutory provisions under the Strata Schemes Management Act 2015, specifically section 247A, which empowers the court to impose civil penalties for contraventions of orders made by the Tribunal. The court examined the nature and extent of the alleged contraventions and the applicability of the statutory provisions to the circumstances of the case. The court found that there were indeed contraventions of the Tribunal order and that multiple penalties could be imposed for the continuing nature of the contraventions.

The court ordered that the proceedings be listed for a hearing to determine the specific contraventions, the appropriate penalties, and the issue of costs. The applicants were directed to file and serve any submissions on or before 7 August 2023, while the respondents were to file and serve their submissions and any relevant evidence on or before 14 August 2023. The court's decision underscores the importance of enforcing Tribunal orders and the potential consequences for non-compliance in the context of strata title management.

Orders

Orders of the court

(1) On a date to be fixed by the Registrar, the proceedings are to be listed for hearing of the following issues (Outstanding Issues):

(a) the issues of contravention identified in these reasons as requiring further submissions;

(b) whether any penalties should be imposed and, if so, how much; and

(c) costs.

(2) The following directions are made in respect of the Outstanding Issues:

(a) On or before 7 August 2023 the applicant is to file and serve any submissions in respect of the Outstanding Issues.

(b) On or before 14 August 2023 the respondents are to file and serve submissions in reply and, in the case of the first respondent, any evidence on the question of what, if any, penalty should be imposed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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