Jones v The Owners – SP 93087 [2023] NSWCATCD 73

Jones v The Owners – SP 93087 [2023] NSWCATCD 73

A fresh compulsory strata manager appointment was not justified because the evidence did not establish present dysfunction under s 237(3)(a); historical dysfunction had been superseded by the existing period of effective compulsory management by Bright & Duggan. Although the owners corporation remained in breach of its s 106(1) repair and maintenance duty, meaningful and appropriate steps had been and continued to be taken to address the defects, and the owners should be given an opportunity to self-govern. However, an extension of the existing appointment under s 237(7) was warranted until 30 November 2023 because Toplace and JKN Field had recently entered administration, creating an...

Jurisdiction
Australia
Judgment Date
31 July 2023
Procedural Posture
Application Concerning Appointment or Extension of Appointment of a Compulsory Strata Manager Under S 237 of the Strata Schemes Management Act 2015 (nsw) / Principal Judgment
Outcome
Order 1 made on 10 January 2022 in SC 21/46495 was extended to 30 November 2023; the application was otherwise dismissed; costs directions were made.
Legal Topics
['appointment of Compulsory Strata Manager' 'extension of Existing Compulsory Strata Manager Appointment' 'strata Scheme Management Dysfunction' 'owners Corporation Duty to Repair and Maintain Common Property' 'building Defects']
['land Law' 'strata Schemes'] ['appointment of Compulsory Strata Manager' 'extension of Existing Compulsory Strata Manager Appointment' 'strata Scheme Management Dysfunction' 'owners Corporation Duty to Repair and Maintain Common Property' 'building Defects']

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Procedural Posture

Application Concerning Appointment or Extension of Appointment of a Compulsory Strata Manager Under S 237 of the Strata Schemes Management Act 2015 (nsw) / Principal Judgment

Legal Issues

  1. 1 ['Whether the circumstances justified a fresh appointment of a compulsory strata manager for 24 months under s 237(1) of the Strata Schemes Management Act 2015 (NSW).' 'Whether the management of the strata scheme was not functioning or was not functioning satisfactorily for the purposes of s 237(3)(a) of the Strata Schemes Management Act 2015 (NSW).' 'Whether the owners corporation had failed to perform one or more of its duties for the purposes of s 237(3)(c) of the Strata Schemes Management Act 2015 (NSW).' 'Whether the existing compulsory strata manager appointment should be extended under s 237(7) of the Strata Schemes Management Act 2015 (NSW), and if so to what date.']

Ratio Decidendi

A fresh compulsory strata manager appointment was not justified because the evidence did not establish present dysfunction under s 237(3)(a); historical dysfunction had been superseded by the existing period of effective compulsory management by Bright & Duggan. Although the owners corporation remained in breach of its s 106(1) repair and maintenance duty, meaningful and appropriate steps had been and continued to be taken to address the defects, and the owners should be given an opportunity to self-govern. However, an extension of the existing appointment under s 237(7) was warranted until 30 November 2023 because Toplace and JKN Field had recently entered administration, creating an...

Court Disposition

Order 1 made on 10 January 2022 in SC 21/46495 was extended to 30 November 2023; the application was otherwise dismissed; costs directions were made.

Orders

  • ['Order 1 made on 10 January 2022 in SC 21/46495 is extended to 30 November 2023.' 'The application is otherwise dismissed.' 'If a party wishes to make 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.' 'If an...