The Owners Strata Plan No. 60919 v Consumer Trader and Tenancy Tribunal - [2009] NSWSC 1158

CITATION: The Owners Strata Plan No. 60919 v Consumer Trader and Tenancy Tribunal & Ors [2009] NSWSC 1158

HEARING DATE(S): 13 October 2009

JUDGMENT DATE :
3 November 2009

JUDGMENT OF: Patten AJ at 1

DECISION: See paragraph 38

LEGISLATION CITED: Recovery of Imposts Act 1963:
Strata Scheme (Freehold Development) Act 1973
Supreme Court Act 1970
Strata Schemes Management Act 1996;
Civil Procedure Act 2005;
Consumer Trader and Tenancy Tribunal Act 2001.

CASES CITED: Baulkham Hills Shire Council v Wrights Roads Pty Ltd [2007] NSWCA 152;
David Securities Pty Ltd v Commonwealth Bank [1991-2] 175 CLR 353:
Bapson Pty Ltd v Pinyeti Pty Ltd and Ors (1990) NSW Title Cases 60,054;
Regis Towers Real Estate Pty Ltd v Fung and Ors (2001) NSW Con R 55-960;
Forster v Jododex Aust Pty Ltd (1972) 127 CLR 421

PARTIES: The Owners Strata Plan No 60919 - Plaintiff
Consumer Trader and Tenancy Tribunal - First Defendant
Mario Di Francesco - Second Defendant
Gina Di Francesco - Third Defendant

FILE NUMBER(S): SC 30006 of 2009

COUNSEL: Mr D Bernie - Plaintiff
Mr P Gray SC with Ms P Koroknay - Second and Third Defendants

SOLICITORS: E H Tebbutt & Sons - Plaintiff
Mr D Le Page - Second and Third Defendants

IN THE SUPREME COURT

OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

Patten AJ

3 November 2009

No: 30006/09

The Owners Strata Plan No: 60919
v
Consumer, Trader and Tenancy Tribunal & Ors

JUDGMENT

1 The summons filed in this matter on 30 January 2009 seeks relief in respect of orders made by an Adjudicator purportedly under s157 or s159 of the Strata Schemes Management Act (the Act) on 9 January 2007. The first defendant, Consumer Trader and Tenancy Tribunal (the Tribunal) filed a submitting appearance and took no part in the hearing. The second and third defendants (Mr and Mrs Di Francesco) appeared by counsel, Mr P W Gray SC and Ms P Koroknay to oppose the relief sought by the Plaintiff. They also brought a cross claim. Mr D Bernie appeared for the Plaintiff.

2 The facts relevant to the summons which are not in dispute may be summarised:

“Promotional levies

The Owners Corporation may determine that lot owners pay amounts in addition to contributions for the general promotion of Italian Forum Complex, as a retail and commercial centre.

The amount to be decided by the Owners Corporation from time to time and paid in accordance with the schedule…

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

AGLC: The Owners Strata Plan No. 60919 v Consumer Trader and Tenancy Tribunal [2009] NSWSC 1158
Case: [2009] NSWSC 1158
Decision Date: 3 November 2009

CaseChat Overview and Summary

The Owners Strata Plan No 60919 sought relief in respect of orders made by an Adjudicator under s157 or s159 of the Strata Schemes Management Act 1996 (the Act) on 9 January 2007. The Adjudicator had ordered that special by-law 18, which allowed the owners corporation to charge lot owners for the promotion of the Italian Forum Complex, be repealed and that the owners corporation pay back any moneys collected under the by-law. The Owners Corporation appealed the decision but subsequently abandoned it. The Adjudicator had no jurisdiction to make the orders he purported to make. Although he could have declared the by-law invalid, he could not order compensation to be paid to lot owners. The Court agreed to hear the matter, despite the Plaintiff having abandoned its appeal to the Tribunal, as it was in the interests of justice to do so. The Court granted the Plaintiff’s relief by quashing the Adjudicator’s orders. The second and third defendants brought a cross-claim seeking, among other things, a declaration that two by-laws were invalid and an order for the return of all money paid under those by-laws. The Court found the by-laws invalid and ordered the return of all money paid under them. The Court also ordered that the costs of the cross-claimants be paid from contributions levied on lot owners other than the cross-claimants. The Court held that the Imposts Act 1963 (NSW) did not apply to the monies sought to be recovered by the cross-claimants.

Orders