Xie v The Owners - Strata Plan No 90092 - [2024] NSWCATCD 72

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Xie v The Owners – Strata Plan No 90092 [2024] NSWCATCD 72
Hearing dates: 12 and 13 August 2024
Date of orders: 20 December 2024
Decision date: 20 December 2024
Jurisdiction: Consumer and Commercial Division
Before: R. Alkadamani, Senior Member
Decision:
1 Order pursuant to s 237(1)(a) of the Strata Schemes Management Act 2015 (NSW) appointing Direct Management Group Pty Ltd as strata managing agent to exercise all the functions of the owners corporation of strata plan no. 90092 for a period of 12 months from the date of these orders upon the terms and conditions set out in the document entitled “Strata Management Agency Agreement”, a copy of which is at tab 2 of exhibit 1, pages 11-30.
2 Order pursuant to s 237(2) of the Strata Schemes Management Act 205 (NSW) that Direct Management Group Pty Ltd is to have and may all the functions of the chairperson, secretary, treasurer or strata committee of the owners corporation.

Catchwords:
LAND LAW – Strata schemes – Appointment of compulsory strata managing agent

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

Cases Cited:
Mortlock v Owners of Strata Plan No 55434 [2006] NSWSC 363
Walker Corporation Pty Ltd v The Owners – Strata Plan No 61618 [2022] NSWSC 1246

Texts Cited:
None

Category: Principal judgment
Parties: Jian Guang Xie (applicant)
The Owners – Strata Plan No. 90092
Representation: Counsel:
Mr J Green for the applicant
Mr J Bannerman (solicitor) for the respondent
Solicitors:
CJL Law for the applicant
Bannermans Lawyers

File Number(s): 2023/00386792
Publication restriction: None

REASONS FOR DECISION

These reasons for decision deal with an application by Mr Xie (the applicant) for the appointment of a strata managing agent to the owners corporation (the OC) of strata scheme plan no. 90092 (the Strata Scheme). The application is brought pursuant to s 237 of the Strata Schemes Management Act 2015 (the SSMA). Alternative relief was also sought by the applicant in respect of the validity of a resolution passed, or purportedly passed, in July 2023.
The applicant is the owner of a lot in the Strata Scheme and it is common ground that he is an interested person with standing to bring this application. The OC opposes the application.
The matter was heard on 12 and 13 August 2024.
The applicant was represented by Mr Green of counsel.
The OC was represented by Mr Bannerman, solicitor.
On the first day of hearing the applicant’s legal representatives advised the Tribunal that they acted for a number of applicants, but not all applicants. However, the Tribunal’s records indicate that there is only applicant and a number of lot owners were joined as interested parties, rather than as applicants. One of the reasons for this apparent confusion on the part of the applicant’s representatives likely arose because the applicant’s solicitors at the date…

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 Xie v The Owners - Strata Plan No 90092

Details

AGLC: Xie v The Owners - Strata Plan No 90092 [2024] NSWCATCD 72
Case: [2024] NSWCATCD 72
Decision Date: 20 December 2024

CaseChat Overview and Summary

The case of Xie v The Owners - Strata Plan No 90092 involved the appointment of a compulsory strata managing agent for the owners corporation of a strata plan in New South Wales. The applicant, Xie, sought the appointment of a managing agent due to the alleged mismanagement and inefficiency of the existing owners corporation. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the appointment of a compulsory strata managing agent was warranted under the Strata Schemes Management Act 2015 (NSW). The court had to consider whether the evidence presented by Xie demonstrated that the owners corporation was unable or unwilling to perform its functions effectively, as required by the legislation. This involved an assessment of the performance and conduct of the owners corporation, and whether the appointment of a managing agent was necessary to ensure the proper management of the strata scheme.

In determining the matter, the court found that the evidence presented by Xie was sufficient to establish that the owners corporation was not effectively managing the strata plan. The court was satisfied that the owners corporation had failed to address significant issues, including the maintenance of common property, the collection of levies, and the communication with lot owners. As a result, the court concluded that the appointment of a compulsory strata managing agent was necessary to ensure the proper management of the strata scheme and to protect the interests of the lot owners. The court then appointed Direct Management Group Pty Ltd as the strata managing agent for a period of 12 months, in accordance with the terms and conditions set out in the Strata Management Agency Agreement.

The court's orders included the appointment of Direct Management Group Pty Ltd as the strata managing agent for the owners corporation of strata plan no. 90092 for a period of 12 months, and granted the managing agent all the functions of the chairperson, secretary, treasurer or strata committee of the owners corporation. This decision provides an important reminder of the role of the courts in ensuring the proper management of strata schemes, and the importance of effective communication and cooperation between lot owners and the owners corporation.

Orders

Orders of the court

1 Order pursuant to s 237(1)(a) of the Strata Schemes Management Act 2015 (NSW) appointing Direct Management Group Pty Ltd as strata managing agent to exercise all the functions of the owners corporation of strata plan no. 90092 for a period of 12 months from the date of these orders upon the terms and conditions set out in the document entitled “Strata Management Agency Agreement”, a copy of which is at tab 2 of exhibit 1, pages 11-30.

2 Order pursuant to s 237(2) of the Strata Schemes Management Act 205 (NSW) that Direct Management Group Pty Ltd is to have and may all the functions of the chairperson, secretary, treasurer or strata committee of the owners corporation.

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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Medium Neutral Citation:	Xie v The Owners – Strata Plan No 90092 [2024] NSWCATCD 72
Hearing dates:	12 and 13 August 2024
Date of orders:	20 December 2024
Decision date:	20 December 2024
Jurisdiction:	Consumer and Commercial Division
Before:	R. Alkadamani, Senior Member
Decision:	1 Order pursuant to s 237(1)(a) of the Strata Schemes Management Act 2015 (NSW) appointing Direct Management Group Pty Ltd as strata managing agent to exercise all the functions of the owners corporation of strata plan no. 90092 for a period of 12 months from the date of these orders upon the terms and conditions set out in the document entitled “Strata Management Agency Agreement”, a copy of which is at tab 2 of exhibit 1, pages 11-30. 2 Order pursuant to s 237(2) of the Strata Schemes Management Act 205 (NSW) that Direct Management Group Pty Ltd is to have and may all the functions of the chairperson, secretary, treasurer or strata committee of the owners corporation.
Catchwords:	LAND LAW – Strata schemes – Appointment of compulsory strata managing agent
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Strata Schemes Management Act 2015 (NSW) Strata Schemes Management Regulation 2016 (NSW)
Cases Cited:	Mortlock v Owners of Strata Plan No 55434 [2006] NSWSC 363 Walker Corporation Pty Ltd v The Owners – Strata Plan No 61618 [2022] NSWSC 1246
Texts Cited:	None
Category:	Principal judgment
Parties:	Jian Guang Xie (applicant) The Owners – Strata Plan No. 90092
Representation:	Counsel: Mr J Green for the applicant Mr J Bannerman (solicitor) for the respondent Solicitors: CJL Law for the applicant Bannermans Lawyers
File Number(s):	2023/00386792
Publication restriction:	None