The Owners Strata Plan No. 84716 v Purcell

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Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: The Owners - Strata Plan No. 84716 v Purcell [2023] NSWCATCD 97
Hearing dates: 30 March 2023; written submissions to 21 April 2023
Date of orders: 30 August 2023
Decision date: 30 August 2023
Jurisdiction:Consumer and Commercial Division
Before: G Sarginson, Senior Member
Decision:

(1) The respondent, Delmont Purcell, is to pay the applicant, The Owners-Strata Plan No 84716, the amount of $1,320 by 14 days from the date of this decision.

(2) Any costs application by the applicant is to be determined in the following manner:

(a) Applicant to file with the Tribunal and serve on the respondent, by person or by post, costs submissions and documents by 14 days from the date of this decision.

(b) Respondent to file with the Tribunal and serve on the applicant, by person or by post, costs submissions and documents by 28 days from the date of this decision.

(c) Applicant to file with the Tribunal and serve on the respondent, by person or by post, costs submissions in reply by 35 days from the date of this decision.

(d) The costs submissions of the parties are to identify whether or not they consent to the issue of costs being determined without a further oral hearing and if not why an oral hearing on the issue of costs is necessary.

(e) Subject to consideration of the costs submissions of the parties the Tribunal may determine the issue of costs on the papers and without a further oral hearing in accordance with s 50 (2) of the Civil and Administrative Tribunal Act 2013.

Catchwords:

LAND LAW---Strata title---Civil penalty---s 147 Strata Schemes Management Act 2015---Service of notices to comply with by-laws---Whether contravention of notices to comply established---Applicable penalty

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Evidence Act 1995 (NSW)

Interpretation Act 1987 (NSW)

Strata Schemes Management Act 2015 (NSW)

Surveillance Devices Act 2007 (NSW)

Cases Cited:

ASIC v McDonald (No 11) [2009] NSWSC 287

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Brown v The Owners-Strata Plan No 82527 [2022] NSWCATAP 328

Di Liristi v Matautia Developments Pty Ltd [2021] NSWCA 328

Forest v Suzanne [2022] NSWCATAP 292

Gregg v R [2020] NSWCCA 245

Mulhearn v Merit Homes Pty Ltd [2015] NSWCATCD 139

Purcell v DPP (NSW) [2021] NSWDC 10

Robinson v Quick Built Systems Pty Ltd [2022] NSWCATAP 192

State of NSW v Hathaway [2010] NSWCA 184

The Owners-Strata Plan No 21367 v Letchford [2021] NSWCATCD 112

The Owners-Strata Plan No 4393 v Roberts [2023] NSWCATCD 57

The Owners-Strata Plan No 61285 v Taylor (No 2) [2022] NSWCATCD 118

TS v R [2022] NSWCCA 222

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

ZDB v The University of Newcastle (No 2) [2017] NSWCATAP 135

Texts Cited:

None cited

Category:Principal judgment
Parties: The Owners-Strata Plan No 84716 (Applicant)
Delmont Purcell (Respondent)
Representation:

Counsel:
None

Solicitors:
Bannermans Lawyers (Applicant)
File Number(s):
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Details
Case
[2023] NSWCATCD 97
Decision Date

CaseChat Overview and Summary

The Owners Strata Plan No. 84716 brought an application against Delmont Purcell, concerning a dispute over the service of notices to comply with by-laws under the Strata Schemes Management Act 2015. The applicant alleged that the respondent had failed to comply with the by-laws and sought a penalty for the contravention. The matter was heard by the Civil and Administrative Tribunal of New South Wales.

The central legal issue before the Tribunal was whether the applicant had successfully established a contravention of the notices to comply with by-laws, and if so, what the appropriate penalty should be under section 147 of the Strata Schemes Management Act 2015. The respondent argued that the notices were not properly served and hence invalid. However, the Tribunal found that the notices were indeed served in accordance with the provisions of the Act and were valid.

After reviewing the evidence, the Tribunal determined that the respondent had contravened the by-laws by failing to comply with the notices. Consequently, the Tribunal ordered the respondent to pay a penalty of $1,320 to the applicant within 14 days from the date of the decision. The Tribunal also outlined the procedure for the determination of costs, stipulating that the issue of costs may be resolved on the papers unless the parties requested a further oral hearing. The Tribunal emphasised that the parties' submissions should indicate whether they consented to the issue of costs being determined without a further hearing and, if not, the reasons for requiring an oral hearing.

Orders

Orders of the court

(1) The respondent, Delmont Purcell, is to pay the applicant, The Owners-Strata Plan No 84716, the amount of $1,320 by 14 days from the date of this decision.

(2) Any costs application by the applicant is to be determined in the following manner:

(a) Applicant to file with the Tribunal and serve on the respondent, by person or by post, costs submissions and documents by 14 days from the date of this decision.

(b) Respondent to file with the Tribunal and serve on the applicant, by person or by post, costs submissions and documents by 28 days from the date of this decision.

(c) Applicant to file with the Tribunal and serve on the respondent, by person or by post, costs submissions in reply by 35 days from the date of this decision.

(d) The costs submissions of the parties are to identify whether or not they consent to the issue of costs being determined without a further oral hearing and if not why an oral hearing on the issue of costs is necessary.

(e) Subject to consideration of the costs submissions of the parties the Tribunal may determine the issue of costs on the papers and without a further oral hearing in accordance with s 50 (2) of the Civil and Administrative Tribunal Act 2013.

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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