Velastegui v Chan - [2021] NSWCATCD 98

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Velastegui v Chan [2021] NSWCATCD 98
Hearing dates: 20 August 2021
Date of orders: 06 September 2021 [amended 7 September 2021]
Decision date: 06 September 2021
Jurisdiction: Consumer and Commercial Division
Before: Graham Ellis SC, Senior Member
Decision:
The Notice of Order issued on 6 September 2021 is amended under Section 63 of the Civil and Administrative Tribunal Act 2013, and should read as follows:
1. An order, under ss 237(1)(a) and 237(2)(a) of the Strata Schemes Management Act 2015, appointing Strata Plus Pty Ltd as strata managing agent, from the date of this order up to the commencement of the next Annual General Meeting of the owners corporation, to exercise all the functions of the owners corporation and all the functions of the chairperson, secretary, treasurer and strata committee of the owners corporation in relation to strata scheme number 36811 upon the terms and conditions set out in the Strata Management Agency Agreement provided under cover of its letter dated 16 August 2021.
2. An order, under s 229 of the Strata Schemes Management Act 2015, that a copy of these orders and reasons be provided by the registry to Strata Plus Pty Ltd via email to XXX, marked for the attention of Mr David Ferguson.
3. An order, under s 232(1)(e) of the Strata Schemes Management Act 2015, granting a licence to the owner of Lot 1 to park the vehicle with registration XXX outside the Lot 1 garages.
4. The application is otherwise dismissed.

Catchwords:
LAND LAW - Strata title - Challenges to decisions of strata committee - Appointment of compulsory strata managing agent

Legislation Cited:
Property, Stock and Business Agents Act 2002 (NSW)
Strata Schemes Management Act 1996 (NSW)
Strata Schemes Management Act 2015 (NSW)

Cases Cited:
Bischoff v Sahade [2015] NSWCATAP 135
Hoare v The Owners – Strata Plan No 73905 [2018] NSWCATCD 45
Mitchell v Cullingral Pty Ltd [2012] NSWCA 389
Mortlock v Owners of Strata Plan No 55434 [2006] NSWSC 363

Texts Cited:
Nil

Category: Principal judgment
Parties: Alison Velastegui (Applicant)
Linda Chan (First Respondent)
The Owners – Strata Plan No SP36811(Second Respondent)
Victoria Bautista (Third Respondent)
Jane Chujun Gu (Fourth Respondent)
Representation: Applicant (Self represented)
First Respondent (Self represented)
Third Respondent (Self represented)
Fourth Respondent (Self represented)

File Number(s): SC 21/16147
Publication restriction: Nil

REASONS FOR DECISION

Outline

On 13 April 2021 a lot owner (the applicant) lodged an application seeking:

orders under s 232 of the Strata Schemes Management Act 2015 (the SSMA) in relation to a number of matters,

an order under s 237 of the SSMA for the appointment by the Tribunal of a strata managing agent, and

an order under s 238 of the SSMA for the removal of the first respondent from the strata committee (SC).

The strata plan the subject of these proceedings has four lot owners, each of whom is a party to the proceedings, along with the owners corporation:

The applicant, Ms Velastegui, 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.

Continue reading Velastegui v Chan

Details

AGLC: Velastegui v Chan [2021] NSWCATCD 98
Case: [2021] NSWCATCD 98
Decision Date: 06 September 2021

CaseChat Overview and Summary

In the case of Velastegui v Chan, the applicant sought to challenge a resolution passed at an annual general meeting of the owners corporation. The applicant, who owned unit 3 in the strata scheme, claimed that the resolution approving the payment for certain work was improper. The application was heard by the Civil and Administrative Tribunal, which was required to decide whether the resolution should be set aside and whether an order should be made appointing a strata managing agent. The legal issues included the appropriate circumstances for setting aside a resolution and the grounds for appointing a strata managing agent. The Tribunal held that the applicant had not satisfied the burden of proof to set aside the resolution. The Tribunal also found that the appointment of a strata managing agent was warranted due to the failure of the owners corporation to properly maintain the common property and other breaches of the Strata Schemes Management Act 2015. As a result, the Tribunal made an order appointing Strata Plus Pty Ltd as strata managing agent and granted a parking licence to the owner of Lot 1. The application to set aside the resolution was dismissed.

Orders

Orders of the court

The Notice of Order issued on 6 September 2021 is amended under Section 63 of the Civil and Administrative Tribunal Act 2013, and should read as follows:

1. An order, under ss 237(1)(a) and 237(2)(a) of the Strata Schemes Management Act 2015, appointing Strata Plus Pty Ltd as strata managing agent, from the date of this order up to the commencement of the next Annual General Meeting of the owners corporation, to exercise all the functions of the owners corporation and all the functions of the chairperson, secretary, treasurer and strata committee of the owners corporation in relation to strata scheme number 36811 upon the terms and conditions set out in the Strata Management Agency Agreement provided under cover of its letter dated 16 August 2021.

2. An order, under s 229 of the Strata Schemes Management Act 2015, that a copy of these orders and reasons be provided by the registry to Strata Plus Pty Ltd via email to XXX, marked for the attention of Mr David Ferguson.

3. An order, under s 232(1)(e) of the Strata Schemes Management Act 2015, granting a licence to the owner of Lot 1 to park the vehicle with registration XXX outside the Lot 1 garages.

4. The application is otherwise dismissed.

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

Order appointing or requiring the appointment of strata managing agent to exercise functions of owners corporation The Tribunal may, on its own motion or on application, make an order appointing a person as a strata managing agent or requiring an owners corporation to appoint a person as a strata managing agent- Order may confer other functions on strata managing agent Circumstances in which order may be madeThe Tribunal may make an order only if satisfied that- Qualifications of person appointed Terms and conditions of appointment Return of documents and other records Revocation of certain appointments Persons who may make the application does not perform a required function, for example to properly maintain the common property; exercises a power or makes a decision for an improper purpose, for example conferring a benefit upon a particular Lot owner or group of Lot owners in a manner not authorised by the SSMA; fails to exercise a power or make a decision to prevent a contravention by Lot owners and occupiers of their obligations under the SSMA, including the Lot owners and occupiers obligation to comply with the by-laws; and raises levies and takes or defends legal action on behalf of the owners corporation in circumstances where such action is unnecessary or not in the interests of the owners Corporation or the Lot owners as a whole. In the SSMA, s 238 is in the following terms: The Tribunal may, on its own motion or on application by an interested person, make any of the following orders- Without limiting the grounds on which the Tribunal may order the removal from office of a person, the Tribunal may remove a person if it is satisfied that the person has- The Tribunal may, on application, make either or both of the following orders if the Tribunal considers that any amount levied or proposed to be levied by way of contributions is inadequate or excessive or that the manner of payment of contributions is unreasonable- An application for an order may be made by the lessor of a leasehold strata scheme, an owners corporation, an owner or a mortgagee in possession. The decision to pass the resolution at the AGM could have been based on (1) the applicant, who now owns unit 3, obtaining the benefit of that work, or (2) that the applicant, as treasurer, should not have signed the cheques whereby payment was made for that work without proper supporting documents and/or approval due to she and her father both having a personal interest in the work the subject of the payment of that amount of $2,000. The amount cannot be said to be either inadequate of excessive, and the manner of payment is not unreasonable. Noting that s 85 of the SSMA provides for simple interest on unpaid contributions to be payable at the rate of 10% per annum, the addition of $400 for interest cannot be considered unreasonable when seeking reimbursement of an amount that should not have been paid from the second respondent’s funds more than two years prior to that decision. The applicant has not made out a case under s 87 which is the specific provision enabling a variation of this resolution and the Tribunal is not satisfied it should exercise its discretion in favour of making an order under the broad power conferred by s 232. In those circumstances, the applicant, who bears the onus of proof, has not satisfied the Tribunal that the resolution passed on 30 January 2021 should be set aside. As a result, the request for an order to overturn that resolution is rejected.

Medium Neutral Citation:	Velastegui v Chan [2021] NSWCATCD 98
Hearing dates:	20 August 2021
Date of orders:	06 September 2021 [amended 7 September 2021]
Decision date:	06 September 2021
Jurisdiction:	Consumer and Commercial Division
Before:	Graham Ellis SC, Senior Member
Decision:	The Notice of Order issued on 6 September 2021 is amended under Section 63 of the Civil and Administrative Tribunal Act 2013, and should read as follows: 1. An order, under ss 237(1)(a) and 237(2)(a) of the Strata Schemes Management Act 2015, appointing Strata Plus Pty Ltd as strata managing agent, from the date of this order up to the commencement of the next Annual General Meeting of the owners corporation, to exercise all the functions of the owners corporation and all the functions of the chairperson, secretary, treasurer and strata committee of the owners corporation in relation to strata scheme number 36811 upon the terms and conditions set out in the Strata Management Agency Agreement provided under cover of its letter dated 16 August 2021. 2. An order, under s 229 of the Strata Schemes Management Act 2015, that a copy of these orders and reasons be provided by the registry to Strata Plus Pty Ltd via email to XXX, marked for the attention of Mr David Ferguson. 3. An order, under s 232(1)(e) of the Strata Schemes Management Act 2015, granting a licence to the owner of Lot 1 to park the vehicle with registration XXX outside the Lot 1 garages. 4. The application is otherwise dismissed.
Catchwords:	LAND LAW - Strata title - Challenges to decisions of strata committee - Appointment of compulsory strata managing agent
Legislation Cited:	Property, Stock and Business Agents Act 2002 (NSW) Strata Schemes Management Act 1996 (NSW) Strata Schemes Management Act 2015 (NSW)
Cases Cited:	Bischoff v Sahade [2015] NSWCATAP 135 Hoare v The Owners – Strata Plan No 73905 [2018] NSWCATCD 45 Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 Mortlock v Owners of Strata Plan No 55434 [2006] NSWSC 363
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Alison Velastegui (Applicant) Linda Chan (First Respondent) The Owners – Strata Plan No SP36811(Second Respondent) Victoria Bautista (Third Respondent) Jane Chujun Gu (Fourth Respondent)
Representation:	Applicant (Self represented) First Respondent (Self represented) Third Respondent (Self represented) Fourth Respondent (Self represented)
File Number(s):	SC 21/16147
Publication restriction:	Nil