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
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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).
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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
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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…
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- Case
- [2022] NSWCATCD 48
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the tribunal was whether the Owners had the authority to commence civil penalty proceedings against Taylor. Another issue was whether the contravention of the primary order could be challenged collaterally in the penalty proceedings. The tribunal considered the statutory framework governing strata title and civil penalty proceedings, including the authority of the strata committee to initiate such proceedings and the implications of a contravention of a QCAT order.
The tribunal found that the Owners had the requisite authority to commence the civil penalty proceedings, as the contraventions of the Act and the primary order were sufficient to warrant such action. The tribunal also held that a collateral challenge to the primary order was not available in the context of these penalty proceedings. Consequently, the tribunal ordered that the proceedings would continue, with specific timelines set for the exchange of evidence and submissions on penalty.
The final orders required the applicant to file and serve any further evidence and submissions on penalty by a specified date. The respondent was similarly directed to file and serve any submissions and evidence in reply by another specified date. The proceedings were listed for further hearing on a designated date and time.
Orders
Orders of the court
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.
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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