The Owners - Strata Plan No. 61285 v Taylor

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

The Owners – Strata Plan No. 61285 v Taylor [2022] NSWCATCD 48

Hearing dates:

17 May 2022

Date of orders:

19 May 2022

Decision date:

19 May 2022

Jurisdiction:

Consumer and Commercial Division

Before:

M Harrowell, Deputy President

Decision:

1. On or before 27 May 2022 the applicant is to file and serve any further evidence and submission on penalty.

2. On or before 3 June 2022, the respondent is to file and serve any submissions and evidence in reply.

3. The notation and directions in orders 8 and 9 made in these proceedings on 8 December 2021 apply to these directions.

4. The proceedings are listed for further hearing on 8 June 2022 at 1:15pm.

Catchwords:

LAND LAW – Strata title – Civil penalty proceedings – authority to commence proceedings – functions of strata committee – contravention of Tribunal order under Strata Schemes Management Act – availability of collateral challenge to primary order in proceedings for the imposition of a civil penalty

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Strata Schemes Management Act 2015 (NSW)

Cases Cited:

Love v Attorney-General (NSW) [1990] HCA 4; (1990) CLR 307

Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49

Posner v Collector for Inter-State Destitute Persons (Vic) [1946] HCA 50; (1946) 74 CLR 461

R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 373; [1970] HCA 8

Taylor v The Owners SP No 61285 [2021] NSWCATAP 270

Westbury v The Owners – Strata Plan No 64061 [2021] NSWCATEN 3

Texts Cited:

Nil

Category:

Principal judgment

Parties:

The Owners – Strata Plan No. 61285 (Applicant)
Cameron Taylor (Respondent)

Representation:

J McGrath, strata agent (Applicant)
Respondent (Self-represented)

File Number(s):

SC 21/47527

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. These reasons relate to an application by The Owners – Strata Plan No 61285 (applicant) against a lot owner, Mr Taylor (respondent), for the imposition of a civil penalty under s 247A of the Strata Schemes Management Act, 2015 (NSW) (SSMA) (penalty proceedings).

2. In these proceedings the applicant contends that the respondent has failed to comply with an order of the Tribunal made 3 June 2021 (June order) in application SC 21/04852 (original proceedings). The June order was in the following terms:

Order, pursuant to sections 132 and 232 of the Strata Schemes Management Act 2015, the respondent to carry out the work set out in Appendix A which work is to be completed by qualified and licenced contractor(s) with due care and skill by 03 October 2021

3. The work require in Appendix A was as follows:

1 Move the air conditioning unit from its current position on the balcony, being on the second or lower level of the lot, adjacent to the balcony wall (as shown on page 3 of Exhibit C), and reinstate that air conditioning unit it in its former position, adjacent to the door to that…