The Owners - Strata Plan No 63517 v Titles Strata Management Pty Ltd

[2025] NSWCATCD 112

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

The Owners – Strata Plan No 63517 v Titles Strata Management Pty Ltd [2025] NSWCATCD 112

Hearing dates:

8 April 2025

Date of orders:

12 August 2025

Decision date:

12 August 2025

Jurisdiction:

Consumer and Commercial Division

Before:

Dr D Goldman, Senior Member

Decision:

(1)   The application is dismissed.

(2)   Each party is to pay the party’s own costs.

(3)   If a party seeks to vary the costs order in 2, the following timetable applies:

(a)   The costs applicant is to file with the Tribunal and serve on the costs respondent all written submissions (no more than 3 A4 pages) and documents relied upon in the costs application within 14 days from the date of this decision.

(b)   The cost respondent is to file with the Tribunal and serve on the costs applicant all written submissions (no more than 3 A4 pages) and documents relied upon by the costs respondent within 28 days from the date of this decision.

(c)   The costs applicant is to file with the Tribunal and serve on the costs respondent all submissions in reply (no more than 2 A4 pages) within 35 days from the date of this decision.

(d)   The costs submissions of the parties are to include whether a party seeks an oral hearing on the issue of costs or consents to the issue of costs being determined on the papers.

(e) Subject to the submissions of the parties and consideration of those submissions, the Tribunal may determine the issue of costs without further oral hearing under s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW).

Catchwords:

LAND LAW — Strata title — Strata managing agent — Effect of s 50 term of appointment expiring — Agent continued to provide services — Reasonableness of fees

CONTRACTS — Formation — Implied contract — Expired strata managing agent agreement

ESTOPPEL — Estoppel by convention — Mutual assumption

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Home Building Act 1989 (NSW)

Strata Schemes Management Act 2015 (NSW)

Cases Cited:

Commonwealth v Verwayen [1990] HCA 39

CSR Limited v Adecco (Australia) Pty Limited [2017] NSWCA 121

Equuscorp v Wilmoth Field Warne (2007) 18 VR 250

Legione v Hateley [1983] HCA 11

Mann v Paterson Constructions Pty Ltd [2019] HCA 2

Mao v Bao [2023] NSWCA 278

Pavey & Matthews Pty Ltd v Paul [1987] HCA 5

Ryan v Moore [2005] 2SCR 53

The August Leonhardt [1985] 2 Lloyd’s Rep. 28

Texts Cited:

Patrick Keane, Estoppel by Conduct and Election (Sweet & Maxwell, 3rd ed. 2023)

JD McKenna, “Estoppel by convention and the sanctity of contract” (University of Queensland, Schemes Management Bill 2015 (Second reading speech, Legislative Assembly 14 October 2015)

Category:

Principal judgment

Parties:

Applicant:
The Owners – Strata Plan No 63517

Respondent:
Titles Strata Management Pty Ltd

Representation:

Counsel:

Applicant
Mr J Anderson

Respondent
Mr J Frankcom (solicitor)

Solicitors:

Respondent
CCA Legal Pty Ltd

File Number(s):

2024/00469106

Publication restriction:

Nil

REASONS FOR DECISION

Background

1. This is an application by an owners corporation, The Owners – Strata Plan No 63517, against a strata managing agent, Titles Strata Management Pty Ltd. They will be referred to as the Owners and the Agent respectively.

2. The parties were granted leave earlier in the case management of these proceedings to be represented. Mr Anderson, of counsel and since 1 July 2024 the chairman of the applicant, appeared for the Owners. The Agent was represented by Mr Frankham, who appeared by audiovisual link from his office in Tasmania after a late application for leave to appear by those means was granted.

3. These proceedings involve a relatively small amount of money although a matter of principle as submitted by the Owners, being some $1,450 in costs withheld by the Agent for payment of its asserted entitlement to management fees. The Owners say that there was no entitlement to those costs, because the agency agreement had expired. As will become apparent, the relevant facts are largely agreed. The outcome of this case turns:

1. first, on the operation of s 50 of the Strata Schemes Management Act 2015 (NSW) (SSMA), and the effect of the mandatory expiry of the term of appointment of a strata managing agent where both parties, in the month after, acted as if the term had not expired; and

2. in the alternative and assuming a finding against the Owners on (1) (and presumably the consequence that the Agent had rights under or by reference to the Agreement), the reasonableness of the fees for the month prior to the resolution of the Owners replacing the Agent.

4. The Owners relied upon evidence given in the form of an affidavit from Mr Anderson dated 1 March 2025.

5. The Agent relied upon evidence from Veronica Koprivnjak, a full-time strata manager with the Agent for 4 years, in the form of a witness statement dated 2 April 2025.

6. Both witnesses were cross-examined.

Facts

7. On 30 April 2021, the Owners entered into a management agreement with the Agent for a term of 3 years (Agreement). On its face, the fixed term of the Agreement concluded on 30 April 2024.

8. The Owners say that the Agent was required to serve on the Owners a notice of the end of their term of appointment pursuant to s 50(6)(a) of the SSMA, at least 3 months but not more than 6 months before the end of the term of appointment. It is common ground that the Agent did not do so.

9. According to Ms Koprivnjak, the Agent had been strata managing agent for the Owners for over 20 years.

10. At an extraordinary general meeting of the lot owners of the Owners on 4 April 2024, two particular motions were defeated by 4 votes to 2. They were that:

1. the agreement with the Agent not be renewed “when the existing management agreement with that company expires on 30 April 2024”; and

2. an alternate strata managing agent be appointed.

11. Certain works for the Owners took place which were overseen by the Agent, after 30 April 2024 and prior to 27 May 2024. The detail of those works is not relevant beyond noting that the subject matter of the attendances included:

1. a pool non-compliance notice from Council, with records showing 6 May 2024 and 10 May 2024 attendances;

2. emergency roof leaks, ceiling repair and electrician 21 May 2024, including negotiating settlement of a disputed invoice with the electrician; and

3. lift compliance issues on 24 May 2024.

12. At an extraordinary general meeting held on 27 May 2024, the lot owners of the Owners resolved not to renew the appointment of the Agent. A resolution was passed to appoint a new strata managing agent.

13. At 9:28 AM on 28 May 2024, the new agent emailed the Agent attaching a copy of the minutes and requesting handover of the strata records and information to enable the new agent to open a trust account to receive the Owners’ funds. The Agent per Ms Koprivnjak did not become aware of its replacement until she read this email. The new agent wanted to be informed of a date and time by which records would be handed over. There was a follow up email on 5 June 2024.

14. On 7 June 2024, the Agent replied that electronic files including the strata roll and closing financials would be sent by close of business on 8 June 2024.

15. On 20 June 2024, the Owners repeated their request for the transfer of funds advising that the funds were needed urgently to enable payments to be made to contractors. Further emails were also sent by the Owners to the Agent that day. On 21 June 2024, Mr Anderson notified the Agent of the intention of the Owners to commence proceedings for recovery of trust funds in the Equity Division of the Supreme Court of New South Wales should it be necessary.

16. On 21 June 2024, the Agent replied, per Ms Koprivnjak, that funds should be received by the Owners within 48 hours. She wrote that she had informed the Owners at their general meeting that the process could take up to 4 weeks. She also wrote:

“Again, I am shocked with your level of aggression as we have continued to assist your owners despite no longer having an agreement with them.

We have continued to be helpful and professional in answering their emails, issuing out levy notices, assisting with issuing explanatory notes when they did not read their notices and assisting with their requests out of goodwill.” [original emphasis]

17. Emails between the parties and the new agent at that time took issue with the timeframe and whether Ms Koprivnjak was present at the general meeting. The latter was the subject of correction in her statement at paragraph 11 of her statement and cross-examination. I find that Ms Koprivnjak was innocently mistaken in thinking she was present at the meeting of 27 May 2025, her confusion arising from the number of schemes she manages in her portfolio.

18. The Agent provided interim reports for the financial year to 30 June 2024. The Owners take issue with an attendance on 29 May 2024 being an exit plan fee on handover ($400) and eight attendances on 31 May 2024 which are unparticularised, and entered after notice of the termination of the Agreement. Most are under $100 and one attendance is for $100. They total $1,010.10 including GST on the Owners’ arithmetic.

Orders sought

19. The Owners seek the following findings and orders.

1. Finding that the management agreement between the parties expired on 30 April 2024 and that the Agent was not entitled to deduct from the Owners' funds fees in respect of management services performed after that date.

2. Finding that during the month of May 2024 the respondent charged the applicant and debited its trust account with fees to which the respondent was not entitled.

3. Order that the respondent pay to the applicant the sum of $1,450 together with interest calculated from 31 May 2024 up until the date of payment.

20. The Agent opposes any order which would seek money paid by it to the Owners.

Jurisdiction

21. The Agent did not dispute the Tribunal’s jurisdiction to determine these proceedings. The Owners did not invoke any particular power of the Tribunal to make the orders and findings sought.

22. The Tribunal does not have power to make findings by way of declaration as such, which seems to be the intention of the first two items of relief sought by the Owners.

23. The Tribunal has broad ranging powers to settle disputes or rectify complaints under s 232 of the SSMA. Notably for the present proceedings, the Tribunal may, on application by an interested person (defined to include an owners corporation in s 226(1)(a)), make an order to settle a complaint or dispute about “an agreement appointing a strata managing agent”: s 232(1)(c). Part 4 Division 1 is headed “Appointment of strata managing agents” and includes s 50 which is of key significance in this case, referenced as required in the termination provision of the Agreement at clause 5.1.

50   Term of appointment of strata managing agents

(1)  The term of appointment (including any additional term under an option to renew) of a strata managing agent for a strata scheme expires (if the term of the appointment does not end earlier or is not ended earlier for any other reason)—

(a)  if the strata managing agent is appointed by the owners corporation at the first annual general meeting, at the end of the period of 12 months following that appointment, or

(b)  in any other case, at the end of the period of 3 years following the appointment.

(2)  A person may be reappointed by the owners corporation by resolution at a general meeting as the strata managing agent for a strata scheme at the end of the person’s term of appointment.

(3)  The appointment of a strata managing agent may be terminated in accordance with the instrument of appointment if authorised by a resolution at a general meeting of the owners corporation.

(4)  The term of appointment of a strata managing agent may be extended by the strata committee for successive periods of up to 3 months after it would otherwise expire (but not for any period that would extend beyond the date of the next annual general meeting of the owners corporation) pending a decision as to the reappointment of the strata managing agent.

(5)  However, if a strata committee has extended a term of appointment of a strata managing agent under this section, the strata committee must give the strata managing agent at least 1 month’s notice of a decision not to reappoint the strata managing agent or not to further extend the appointment.

(6)  A strata managing agent must give the owners corporation written notice of the end of a term of appointment—

(a)  at least 3 months, but not more than 6 months, before the end of the term of appointment, and

(b)  at least 1 month before the end of each extension of a term permitted by this section.

(7)  An instrument of appointment of a strata managing agent for a period of 3 years (as referred to in subsection (1) (b)) is taken to include an option for the agent to extend the term of the appointment for a maximum period of 3 months after the end of the term of 3 years, if the owners corporation decides not to reappoint the agent and does not extend the term of appointment under subsection (4). The agent must give the owners corporation written notice of the exercise of the option.

(8)  A strata managing agent is not entitled to exercise an option under subsection (7) if the owners corporation gives the agent written notice that the agent will not be reappointed at least 3 months before the end of the term.

(9)  In this section, a reference to the appointment of a strata managing agent includes a reference to the reappointment of a strata managing agent.

24. The Tribunal has power under s 72 of the SSMA, on application by an owners corporation, to make a number of different orders, including an order requiring the payment of compensation to a party to a strata managing agent agreement or that a party take or not take any action under the agreement.

25. There is no time limit for the Owners to bring a claim under these sections. Unless specifically included in a section of the SSMA, there is a time limit of 28 days to bring the application: rule 23 Civil and Administrative Tribunal Rules 2014 (NSW). The general time limit of 28 days commences to run from the date of the contravention or the date the dispute arose. The contravention alleged by the Owners included the payment from the Owners’ funds of fees charged after the Agreement had expired, the deduction of those funds from a trust account, and the failure to account. Because an action in relation to a failure to comply with s 50 of the SSMA contains no express time limit for bringing a claim, the time limit of 28 days within which to bring a claim may arguably commence every day there is a breach. Effectively this may mean there is no enforceable time restriction for so long as the Agent has not accounted or returned the fees to the Owners. The Agent in any event did not raise a limitation defence and it is considered no further.

Consideration

26. The Owners’ position was stated in a submission filed 18 March 2025, at the hearing, and in a supplementary submission filed 22 April 2025.

27. The Agent’s position was stated in a submission dated 1 April 2025 lodged with the Tribunal, another entitled “Respondent’s Supplementary Submissions” handed up at the hearing, and a further written submission entitled “Respondents Further Submissions” [sic] filed 11 April 2025.

28. All arguments have been considered and are discussed below where relevant.

Expiry of the term of appointment

Owners’ position

29. As mentioned, the Owners make their claim on two alternate bases. The first basis is that the Agreement between the parties had expired and had not been extended.

30. The Owners note that under s 50 of the SSMA, a strata managing agent can be appointed for a maximum term of 3 years, without requiring compliance with further statutory steps. The term may be extended for a term of up to 3 months in certain circumstances, all of which require notice to be given. Section 50(6) expresses that the strata managing agent “must” give an owners corporation written notice of the impending expiry of the agreement. That did not occur in the present case.

31. The Owners submit that there is a “self-evident” policy underlying these requirements. As explained in the second reading speech upon introduction of the bill (Second reading Speech Strata Schemes Management Bill 2015, Legislative Assembly 14 October 2015), and helpfully extracted by the Owners, it was intended to:

"lift standards, to improve accountability and to address conflicts of interest within the sector…

…

The three-month notice period will give owners corporations sufficient time to call a meeting to decide whether to renew the contract, or to appoint a new agent. In the event that does not occur, the seven-day notice requirement will ensure that owners corporations are aware of the imminent expiration of the rollover period and can take any necessary action. This will help owners corporations to be aware of their responsibilities leading up to the end of a strata managing agent's contract and that they need to act. It is important that an agreement not continue in rollover indefinitely because it provides no certainty for either the owners corporation or their managing agent.” [Owners’ emphasis]

32. The Owners’ supplementary submission filed 22 April 2025 proceeds on the assumption that a quantum meruit or an estoppel argument does not meet with any reported case its counsel was able to file which would enable a defendant or respondent “either to resist a claim for moneys unlawfully deducted from an account held in trust for the plaintiff/applicant, or at all”. The Owners consider that the Agent “seems to rely on the fact that a motion not to renew the management contract was defeated at an extraordinary general meeting on 4 April 2024” without evidencing the Agent ever became aware of the meeting before it received the email from the Owners advising of the non-renewal of the Agreement. The Owners have also proceeded on the assumption that “the [Owners] did nothing to encourage the [Agent] to assume that the contract would be renewed”.

Agent’s position

33. The Agent submits that the circumstances surrounding the statutory expiry of the term of the Agreement, yet the continued instructions given by the Owners to the Agent and work performed by the Agent, gave rise to “an implied agreement on the same terms as the expired agreement”; or “a claim for quantum meruit for the same amount as claimed under the 30 May 2024 invoice”.

34. The quantum meruit claim is based the principle of restitution discussed in Pavey & Matthews Pty Ltd v Paul [1987] HCA 5. There, Deane J at [14] described it as:

“a unifying legal concept which explains why the law recognizes, in a variety of distinct categories of case, an obligation on the part of a defendant to make fair and just restitution for a benefit derived at the expense of a plaintiff…”

35. That case and this quote speak of a defendant making restitution. The Agent is in the position of a defendant (as the respondent in the present proceeding). The Agent is not in fact seeking restitution. It has already exercised its rights (rightly in the Agent’s view and wrongly in the Owners’ view), and it has received consideration for that work. The Agent’s “Supplementary Submissions” are prefaced “[f]or the purposes of these submissions [the Agent] will be described as being in the position of the plaintiff and [the Owners] as the defendant”. That can create issues for engaging the doctrines giving rise to restitution, on the authorities provided. To attempt to address the problems of the approach alerted to the Agent at the hearing, the Agent’s subsequent document headed “Respondents Further Submissions” [sic] is just over one page long and lists over 10 cases without guidance as to how each might advance the Agent’s argument. To the extent an argument can be discerned, the Agent does not establish that quantum meruit can be used by a respondent or defendant to defend itself against a claim, as opposed to filing a cross-claim which has not occurred here.

35. Furthermore, equitable set-off has not been raised as a defence, which might seek to rely upon the work performed by the Agent and other facts relevant to quantum meruit to “impeach” and therefore diminish the entitlement of the Owners to the funds claimed from the Agent: see, for example, the summary of the principles in Mao v Bao [2023] NSWCA 278, by Ward ACJ at [54]-[67]. Argument did not proceed on this basis between the parties.

Findings

37. The Agreement, although it expired on 30 April 2024, was not treated as being at an end by either party until the end of May and after attendances by the Agent in the ordinary course of its business with the Owners: see [11].

38. By virtue of the two resolutions about strata managing agents voted upon at the general meeting held on 4 April 2024, there can be no doubt that the directing mind and will of the Owners, by a quorum of its members, was aware of the impending statutory expiry of the Agreement: see [10].

39. Whilst no direct evidence of communications between the Owners or lot owners and occupants of the units in the Owners’ strata scheme is in evidence, it was not contested that, on Ms Koprivnjak’s evidence, “[t]he work was done on the instructions from the members of the Owners Corporation and the historic working dynamic” and work continued to be performed by the Agent as if there had been no change to the Agreement (although the quantum is disputed by the Owners).

40. The evidence supports the finding, and the finding is made, that the Owners continued to enjoy the services continued by the Agent in the ordinary course of the business relationship up until actual notification from the Owners to the Agent of the termination of the Agreement, which was delivered after the general meeting resolution on 27 May 2024.

41. Section 49(1) of the SSMA provides that “An owners corporation for a strata scheme may appoint a person who is the holder of a strata managing agent’s licence … to be the strata managing agent of the scheme.”

42. Section 49(2) of the SSMA provides that such an “appointment is to be made by instrument in writing authorised by a resolution at a general meeting of the owners corporation.” So far as the arrangement between the parties during May 2024 was concerned, those requirements were obviously not complied with. Work was however performed by the Agent pursuant to the terms of the Agreement, which for reasons to be discussed, are to be implied into the continuing albeit short lived May 2024 relationship (May Agreement). The conduct of the parties was such that a reasonable bystander would consider there was a continuity of conduct and expectation between the parties evidencing a continuing relationship of service and reward. The irregularities surrounding the entry into the May Agreement seem more akin to internal governance failures on the part of both contracting parties. These failures do not affect the enforceability of the May Agreement based upon the ostensible authority of both parties to continue their relationship in a legally binding way. On the evidence, neither party had actual notice of the irregularity surrounding entry in the May 2024 agreement.

43. Section 50 of the SSMA specifies formalities surrounding the term of the appointment of a strata managing agent, including reappointment, termination, extensions and notice. It does not specify the consequences of non-compliance, by means, for example, of creating a penalty for non-compliance or a prohibition on recovery if there has been a departure from the formal requirements. By analogy and for example, s 10 of the Home Building Act 1989 (NSW) renders unenforceable by a builder a contract in breach of ss 7 or 7E because it or a variation is not in writing, including in respect of damages or any other remedy. Yet the law recognises the rights of a builder to claim under general law in restitution, despite a breach of statutory requirements: see, for example, Mann v Paterson Constructions Pty Ltd [2019] HCA 2 (in respect of the Victorian home building statute). The absence of a statutory consequence for the breach of s 50 of the SSMA speaks even more strongly in favour of the general law continuing to apply alongside strata managing agent agreements.

44. No mischief identified in the Second Reading Speech concerning s 50 of the SSMA arises in the present case which would suggest the enforcement of the Agreement in its May 2024 form would be unfair, or that the purpose of s 50 would be subverted. That is:

1. There was no evidence from the Owners that the Agent:

1. was performing below standards;

2. had not been accountable prior to the month of May after the Agreement had expired under s 50;

3. had conflicts of interest.

2. Despite the Agent not giving notice of the end of the Agreement between 6 and 3 months of its expiry:

1. the Owners held a general meeting nearly 4 weeks prior to the expiry of the Agreement;

2. the lot owners of the Owners were self-evidently aware of their ability to change strata managing agents by virtue of the 4 April 2024 motion; and

3. the Agreement was not going to “continue in rollover indefinitely”.

45. Consistent with the conclusion that non-compliance with the formalities of s 50 of the SSMA does not preclude rights and obligations otherwise arising under the general law, the question turns to what relevant general law might respond given the limitations of a quantum meruit without a cross-claim by the Agent. The Agent’s submission that “an implied agreement on the same terms as the expired agreement” continued after the statutory expiry of the Agreement is an argument the Tribunal finds persuasive subject to clarifying some nuances, for the reasons which follow.

46. In CSR Limited v Adecco (Australia) Pty Limited [2017] NSWCA 121, McColl JA discussed the elements required to establish an implied contract following the expiry of an express fixed term (internal references omitted).

[120] As is apparent from the authorities to which I have referred, and as both parties accepted, the question whether an implied contract following upon the expiry of an express fixed term contract may be inferred turns on an objective inquiry. … [T]he ultimate issue is whether a reasonable bystander would regard the conduct of the parties, including their silence, as signalling to the other party that their relationship continued on the terms of the expired contract. What was “required [was] conduct by the parties as if the contract remained on foot”. Whether the inference will be drawn is “an evidentiary or factual question.”

…

[122] I do not accept … there must be evidence of exactitude in performing the expired contact in the post-expiry conduct of the parties. … Each case will turn on its own facts.

…

[125] What [the plaintiff] had to establish was that the parties continued to act as though the Agreement still bound them after the term expired. In such a case the Court may infer that the parties have agreed to renew the express contract for another term or the Court may infer an implied contract drawing on some of the terms of the earlier contract, but omitting others. As the Supreme Court of Arkansas held in Steed v Busby, “[w]hen an agreement expires by its own terms, if without more the parties continue to perform as before, an implication arises that they have mutually assented to a new contract containing the same provisions as the old...”.

47. I am satisfied from Ms Koprivnjak’s evidence summarised in [11] that a reasonable bystander would regard the conduct of the Owners and the Agent, including the Owners’ silence on the issue in particular, as signalling the continuation of the relationship. This was “conduct by the parties as if the contract remained on foot”, being conduct which signalled that “their relationship continued on the terms of the expired contract” within the meaning of the CSR Case. There is no evidence before the Tribunal of the particular conduct of the Owners beyond their silence and the evidence of Ms Koprivnjak of the work performed by the Agent. The Owners did not submit any contradictory evidence. There is enough to find, and the Tribunal so finds, that the parties gave the outward appearance of an intention to continue with the Agreement on the same material terms during the month of May, until the resolution appointing the new agent and the Owners advising the Agent that its appointment was not being renewed.

48. A consistent outcome for present purposes would also be delivered by operation of the doctrine of estoppel by convention, which can apply when there are common assumptions of fact and law. The principle provides the Agent with a valid defence to the Owners’ claim that there was no relevant agreement entitling the Agent to the fees charged. A reasonable bystander would consider that the Owners’ conduct in instructing the Agent and allowing the Agent to continue to perform services under the Agreement, or the Owners’ silence in the face of the Agent’s performance, led the Agent to believe there was an agreement on foot by which it would be compensated for its time expended. Estoppel can arise out of silence impliedly: Ryan v Moore [2005] 2SCR 53 at [59] cited in JD McKenna, “Estoppel by convention and the sanctity of contract” (University of Queensland, As observed in The August Leonhardt [1985] 2 Lloyd’s Rep. 28 at 34-5, cited in Patrick Keane, Estoppel by Conduct and Election (Sweet & Maxwell, 3^rd ed. 2023) at [8-012]:

“There cannot be any estoppel unless the alleged representor has said or done something, or failed to do something, with the result that – across the line between the parties – his action or inaction has produced some belief or expectation in the mind of the alleged representee.”

49. The Owners suggest that s 50 and related provisions of the SSMA have the effect that the Agent cannot collect fees because a process has not been followed. Estoppel by convention can however apply where a primary contract is found to be void. Estoppel by convention has applied where a solicitor’s fee agreement has been held to be void, based on the subsequent conduct of the parties except to the extent the statute excluded the operation of estoppel: Equuscorp v Wilmoth Field Warne (2007) 18 VR 250. I have found above at [43] and [44] that that no such exclusion could be read into the SSMA.

50. Having found that the Agreement and its May 2024 form entitle the Agent to the fees it collected, attention now turns to the second of the remedies sought by the Owners, namely that the fees charged by the Agent in the amount of $1,450 were not charged in accordance with the Agreement and they should be returned to the Owners.

Quantum

51. Given the conclusion of the Tribunal that the Agreement was effectively extended by implication, the Owners’ argument in the alternative needs to be considered. The Owners submit that the fees charged on its arithmetic – $1,450 for the month – were excessive.

52. The Owners contend that there are inadequate particulars of the attendances referred to in [18]. They say the charges are excessive and “most of the documents tendered by the respondent relate to ‘repairs and maintenance up to $5000’ which is an ‘Agreed Service’ and is included in the ‘agreed services fee’”. The Owners have not however listed the particular services provided by third party contractors into categories by reference to their nature and cost. It does not necessarily follow that the compliance certificate in respect of the lift is of an ordinary recurring nature as submitted by the Owners, thus precluding the Agent from charging an associated attendance. It is not the role of the Tribunal to conduct an audit to test such generalised submissions of the Owners about items claimed by the Agent (putting aside the relatively minor amounts the subject of the Owners’ objections).

53. The Agent submits that these charges should be regarded as reasonable having regard to previous charges under the Agreement over the past 3 years, the rates generally charged by other strata managing agents in the Sydney area, and the absence of any prior issues around the reasonableness of the rates being raised by the Owners with the Agent.

54. In answer to the Owners’ concerns about the attendances charged on 31 May 2024 (at [18]), the Agent satisfactorily explained that the 6 May to 24 May 2024 attendances were billed on 31 May 2024 as a matter of administrative convenience. Nothing can turn on that.

55. Having reviewed the supporting documents including the ten documents summarised in a table prepared by the Owners, considered the nature of the work performed, the charges rendered and the time attendances, and in doing so referred to the pricing contained in the Agreement, I am not persuaded on the balance of probabilities there has been a breach of the Agreement as manifested in the May Agreement.

56. No lesser amount has been conceded by the Owners

57. For the reasons above, the Owners’ claim that the Agent is not entitled to charge fees for the work performed and should repay $1,450 for the period in question fails.

Conclusion

58. The Owners’ claims fail and the application is dismissed.

59. Under s 60(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), “Each party to proceedings in the Tribunal is to pay the party’s own costs”. Accordingly, the Tribunal will make that order.

60. Section 60(2) of the NCAT Act relaxes that default position by providing that “The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs”. If a party wishes to seek a variation of the costs order made in these proceedings, the following timetable applies.

1. The costs applicant is to file with the Tribunal and serve on the costs respondent all written submissions (no more than 3 A4 pages) and documents relied upon in the costs application within 14 days from the date of this decision.

2. The cost respondent is to file with the Tribunal and serve on the costs applicant all written submissions (no more than 3 A4 pages) and documents relied upon by the costs respondent within 28 days from the date of this decision.

3. The costs applicant is to file with the Tribunal and serve on the costs respondent all submissions in reply (no more than 2 A4 pages) within 35 days from the date of this decision.

4. The costs submissions of the parties are to include whether a party seeks an oral hearing on the issue of costs or consents to the issue of costs being determined on the papers.

5. Subject to the submissions of the parties and consideration of those submissions, the Tribunal may determine the issue of costs without further oral hearing under s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW).

6. All costs submissions and documents must be filed with the Tribunal in hard copy.

61. The Tribunal so orders.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 22 October 2025