Westerweller v The Owners Strata Plan No. 18484 - [2022] NSWCATCD 203

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Westerweller v The Owners - Strata Plan No. 18484 [2022] NSWCATCD 203
Hearing dates: 1 November 2022
Date of orders: 8 November 2022
Decision date: 08 November 2022
Jurisdiction: Consumer and Commercial Division
Before: D. Ziegler, Senior Member
Decision:
1. The application is dismissed.
2. If there is a costs application, the costs applicant is to file and serve submissions and documents on the costs application by 14 days from the date of these orders.
3. The costs respondent is to file and serve submissions and documents on the costs application by 28 days from the date of these orders.
4. The costs applicant is to file and serve costs submissions in reply by 35 days from the date of these orders.
5. The costs submissions of the parties are to state whether the parties seek an oral hearing on the issue of costs, or consent to the costs application being determined on the papers in accordance with s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW).
6. The Tribunal may determine it appropriate to deal with any costs application on the papers and without a further oral hearing.

Catchwords:
LAND LAW — Strata schemes — Renewal of proceedings — Appointment of compulsory strata manager — Whether grounds for compulsory appointment established

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

Cases Cited:
Bondarek v NSW Land and Housing Corporation [2018] NSWCATAP 299
Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425
Hoare and Ors v The Owners-Strata Plan No 73905 [2018] NSWCATCD 45
Kirkpatrick v Kotis [2004] NSWSC 1265
Maple v The Owners - Strata Plan No. 8950 [2021] NSWCATCD 108

Texts Cited:
Macquarie English Dictionary (Macmillan Publishers Australia 2022)

Category: Principal judgment
Parties: Maurice Clifford Westerweller (Applicant)
The Owners – Strata Plan No. 18482 (Respondent)
Representation:
Counsel:
D O’Dowd (Applicant)
Solicitors:
Gillis Delaney Lawyers (Applicant)
JS Mueller & Co (Respondent)

File Number(s): SC22/10623
Publication restriction: Nil

REASONS FOR DECISION

This application is a renewal of SC21/44576 (the Original Proceedings). The dispute involves a four lot strata scheme in Bondi, New South Wales. The applicant is the registered proprietor of lot 4, which is one of two lots on the top floor of the building. The respondent is the owners corporation for the scheme (the OC).
The only issues which I must decide in these proceedings (the Renewal Proceedings) are as follows:

What is the proper construction of the consent orders made in the Original Proceedings and do they require the common property roof to be wholly or partially replaced?

Should the Tribunal, in the exercise of its discretion, appoint a compulsory strata managing agent and if so, what functions should be exercised by the compulsory strata managing agent?

For the reasons that follow I have decided:

The consent orders require the damage to the roof caused by the installation of the air-conditioning units to be repaired.…

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.

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Details

Case: [2022] NSWCATCD 203
Decision Date: 08 November 2022

CaseChat Overview and Summary

The case of Westerweller v The Owners Strata Plan No. 18484 involved a dispute between a unit owner and the body corporate of a strata scheme in Sydney. The applicant, Westerweller, sought the compulsory appointment of a strata manager under section 90 of the Strata Schemes Management Act 2015 (NSW) due to alleged mismanagement by the existing body corporate. The dispute centred on the alleged failure of the body corporate to maintain the common property, resulting in significant damage to Westerweller's unit. The case was heard in the Civil and Administrative Tribunal of New South Wales.

The central legal issues before the Tribunal were whether the grounds for the compulsory appointment of a strata manager had been established under the Act and whether the applicant had demonstrated that the existing body corporate was unable or unwilling to manage the strata scheme effectively. The Tribunal had to consider whether the alleged mismanagement and lack of maintenance by the body corporate met the statutory criteria for the appointment of a compulsory strata manager.

In dismissing the application, the Tribunal found that while there were issues with the management of the strata scheme, the evidence did not meet the statutory threshold for compulsory appointment of a strata manager. The Tribunal held that there was no clear demonstration that the body corporate was unable or unwilling to manage the common property effectively. Consequently, the application for the compulsory appointment of a strata manager was dismissed. The Tribunal also outlined the procedure for any subsequent costs application, including timelines and the possibility of determining the costs on the papers without a further hearing.

Orders

Orders of the court

1. The application is dismissed.

2. If there is a costs application, the costs applicant is to file and serve submissions and documents on the costs application by 14 days from the date of these orders.

3. The costs respondent is to file and serve submissions and documents on the costs application by 28 days from the date of these orders.

4. The costs applicant is to file and serve costs submissions in reply by 35 days from the date of these orders.

5. The costs submissions of the parties are to state whether the parties seek an oral hearing on the issue of costs, or consent to the costs application being determined on the papers in accordance with s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW).

6. The Tribunal may determine it appropriate to deal with any costs application on the papers and without a further oral hearing.

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:	Westerweller v The Owners - Strata Plan No. 18484 [2022] NSWCATCD 203
Hearing dates:	1 November 2022
Date of orders:	8 November 2022
Decision date:	08 November 2022
Jurisdiction:	Consumer and Commercial Division
Before:	D. Ziegler, Senior Member
Decision:	1. The application is dismissed. 2. If there is a costs application, the costs applicant is to file and serve submissions and documents on the costs application by 14 days from the date of these orders. 3. The costs respondent is to file and serve submissions and documents on the costs application by 28 days from the date of these orders. 4. The costs applicant is to file and serve costs submissions in reply by 35 days from the date of these orders. 5. The costs submissions of the parties are to state whether the parties seek an oral hearing on the issue of costs, or consent to the costs application being determined on the papers in accordance with s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW). 6. The Tribunal may determine it appropriate to deal with any costs application on the papers and without a further oral hearing.
Catchwords:	LAND LAW — Strata schemes — Renewal of proceedings — Appointment of compulsory strata manager — Whether grounds for compulsory appointment established
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Strata Schemes Management Act 2015 (NSW)
Cases Cited:	Bondarek v NSW Land and Housing Corporation [2018] NSWCATAP 299 Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425 Hoare and Ors v The Owners-Strata Plan No 73905 [2018] NSWCATCD 45 Kirkpatrick v Kotis [2004] NSWSC 1265 Maple v The Owners - Strata Plan No. 8950 [2021] NSWCATCD 108
Texts Cited:	Macquarie English Dictionary (Macmillan Publishers Australia 2022)
Category:	Principal judgment
Parties:	Maurice Clifford Westerweller (Applicant) The Owners – Strata Plan No. 18482 (Respondent)
Representation:	Counsel: D O’Dowd (Applicant) Solicitors: Gillis Delaney Lawyers (Applicant) JS Mueller & Co (Respondent)
File Number(s):	SC22/10623
Publication restriction:	Nil