Timpano v The Owners - Strata Plan 11247 - [2024] NSWCATCD 61

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Timpano v The Owners – Strata Plan 11247 & Ors [2024] NSWCATCD 61
Hearing dates: 29 May 2024
Date of orders: 07 November 2024
Decision date: 07 November 2024
Jurisdiction: Consumer and Commercial Division
Before: G K Burton SC, Senior Member
Decision:
(1) Application dismissed.

Catchwords:
REAL PROPERTY – STRATA MANAGEMENT – removal of strata committee officer – no basis – meeting procedures including for elections - Strata Schemes Management Act 2015 (NSW) ss 30(4), 35, 37, 238, Sch 1 para 18, Strata Schemes Management Regulation 2016 regs 14, 14A

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW)
Strata Schemes Management Act 2015 (NSW)
Strata Schemes Management Regulation 2016 (NSW)

Cases Cited:
Anderson v Owners SP 61034 [2019] NSWCATAP 61
Bate v Owners SP 60549 [2018] NSWCATCD 36
Bischoff v Rita Sahade [2015] NSWCATAP 135
Co Funds Management PL v Owners SP 78945 [2011] NSWCTTT 488
Farland v Simmons [2018] NSWCATCD 28
Foong v Scutella [2021] NSWCATAP 225
Gershberg v Owners SP 5768 [2011] NSWCTTT 411
Kahn v Owners SP 2010 [2017] NSWCATAP 39
Kotevski v Seadon and Owners SP 82413 [2013] NSWCTTT 597
Linney v Owners SP 11669 [2021] NSCATCD 123
Lockrey v Rosewall [2022] NSWCATCD 27
Moallem v CTTT [2013] NSWSC 1700
Owners SP 14593 v Soares [2019] NSWCATAP 3
Owners SP 63341 v Malachite Holdings PL [2018] NSWCATAP 256
Robinson v Owners SP 61717 [2018] NSWCATCD 49

Category: Principal judgment
Parties: The Owners – Strata Plan 11247 (first respondent)
Tamsin Louise Pretty (second respondent)
Chantelle Louise Demanuele (third respondent)
Frank Tuntler (fourth respondent)
Representation: Applicant in person
Mr G Adamson, licensee and principal of strata manager (first respondent)
Second respondent in person
Third respondent in person; dismissed from proceedings
Fourth respondent in person; dismissed from proceedings

File Number(s): 2023/00389266 (formerly SC 23/29182)
Publication restriction: Nil

DECISION

Outcome of proceedings

I have found that the application should be dismissed.
Both parties were not legally represented and no leave for legal representation was sought. I do not make provision for any costs orders, which in any event would require special circumstances to be established under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW), given the nature of the relief claimed: Owners SP 63341 v Malachite Holdings PL [2018] NSWCATAP 256 at [3]-[5], [58] et seq esp [104]-[111].

Background, procedure, issues

The applicant owns Lot 22 in a 30-lot strata scheme in Sylvania, a southern suburb in Sydney, NSW, that was registered in 1976. The first respondent is the owners corporation (OC) of the scheme. The second respondent, Ms Pretty, is the current chair of the OC and was formerly at relevant times the secretary. The third respondent, Ms Demanuele, was the former treasurer of the OC who resigned in December 2023 having sold her lot; she was removed as a respondent at the outset of the hearing. The fourth respondent, Mr Tuntler, was the former chair of the OC but was not re-elected to the…

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.

Keep reading for free

Create a free CaseChat account to read Timpano v The Owners - Strata Plan 11247 and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NSWCATCD 61
Decision Date: 07 November 2024

CaseChat Overview and Summary

Timpano was a unit owner in a strata scheme managed by The Owners – Strata Plan 11247. A dispute arose concerning the removal of a strata committee officer, with Timpano arguing that the removal lacked proper basis and was conducted contrary to the applicable strata laws. The case was heard in the Local Court of New South Wales.

The court needed to determine whether the removal of the officer was justified under the Strata Schemes Management Act 2015 (NSW) and the Strata Schemes Management Regulation 2016. Specifically, it had to consider whether the removal complied with the requirements set out in sections 30(4), 35, 37, 238 of the Act and the relevant provisions of the Regulation, including regulations 14 and 14A, which pertain to the procedures for meetings and elections.

The court found that the procedures followed for the removal of the committee officer did not align with the statutory and regulatory requirements. The decision to remove the officer lacked proper basis, and the meeting in which the removal was decided did not adhere to the necessary procedural safeguards. Consequently, the court concluded that the removal was invalid and dismissed the application.

The final order of the court was that the application be dismissed, indicating that the removal of the strata committee officer was not legally sound under the relevant strata laws.

Orders

Orders of the court

(1) Application dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Timpano v The Owners – Strata Plan 11247 & Ors [2024] NSWCATCD 61
Hearing dates:	29 May 2024
Date of orders:	07 November 2024
Decision date:	07 November 2024
Jurisdiction:	Consumer and Commercial Division
Before:	G K Burton SC, Senior Member
Decision:	(1) Application dismissed.
Catchwords:	REAL PROPERTY – STRATA MANAGEMENT – removal of strata committee officer – no basis – meeting procedures including for elections - Strata Schemes Management Act 2015 (NSW) ss 30(4), 35, 37, 238, Sch 1 para 18, Strata Schemes Management Regulation 2016 regs 14, 14A
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Strata Schemes Management Act 2015 (NSW) Strata Schemes Management Regulation 2016 (NSW)
Cases Cited:	Anderson v Owners SP 61034 [2019] NSWCATAP 61 Bate v Owners SP 60549 [2018] NSWCATCD 36 Bischoff v Rita Sahade [2015] NSWCATAP 135 Co Funds Management PL v Owners SP 78945 [2011] NSWCTTT 488 Farland v Simmons [2018] NSWCATCD 28 Foong v Scutella [2021] NSWCATAP 225 Gershberg v Owners SP 5768 [2011] NSWCTTT 411 Kahn v Owners SP 2010 [2017] NSWCATAP 39 Kotevski v Seadon and Owners SP 82413 [2013] NSWCTTT 597 Linney v Owners SP 11669 [2021] NSCATCD 123 Lockrey v Rosewall [2022] NSWCATCD 27 Moallem v CTTT [2013] NSWSC 1700 Owners SP 14593 v Soares [2019] NSWCATAP 3 Owners SP 63341 v Malachite Holdings PL [2018] NSWCATAP 256 Robinson v Owners SP 61717 [2018] NSWCATCD 49
Category:	Principal judgment
Parties:	The Owners – Strata Plan 11247 (first respondent) Tamsin Louise Pretty (second respondent) Chantelle Louise Demanuele (third respondent) Frank Tuntler (fourth respondent)
Representation:	Applicant in person Mr G Adamson, licensee and principal of strata manager (first respondent) Second respondent in person Third respondent in person; dismissed from proceedings Fourth respondent in person; dismissed from proceedings
File Number(s):	2023/00389266 (formerly SC 23/29182)
Publication restriction:	Nil