The Owners Strata Plan No. 60919 v Consumer Trader and Tenancy Tribunal & Ors [2009] NSWSC 1158

The Owners Strata Plan No. 60919 v Consumer Trader and Tenancy Tribunal & Ors [2009] NSWSC 1158

The Adjudicator's orders were quashed because, although by-law 18 was beyond the owners corporation's power and invalid, the Adjudicator purported to act under s157, which did not authorise retrospective repeal of an invalid by-law or repayment orders for this by-law. By-law 18 and by-law 11 were invalid because they imposed promotional levies outside the by-law making powers in the Strata Schemes Management Act 1996 and inconsistently with the statutory contribution regime, including s78(2). The payments made under those void by-laws were recoverable in restitution with interest, and the Recovery of Imposts Act 1963 did not bar recovery because the payments were not public imposts made...

Jurisdiction
Australia
Judgment Date
03 November 2009
Procedural Posture
Administrative Law Judicial Review and Cross Claim Concerning Strata Scheme by Laws and Promotional Levies / Summons Seeking Relief From Adjudicator's Orders; Cross Claim for Declarations, Restitution, Interest, Account Corrections and Costs
Outcome
Adjudicator's orders quashed; summons otherwise dismissed; cross claim substantially allowed with declarations of invalidity, verdict, interest, account correction, notification to Registrar General, costs and s229(2) contribution order.
Legal Topics
['jurisdiction of Strata Schemes Adjudicator' 'validity of Strata by Laws' 'promotional Levies' 'ultra Vires by Laws' 'recovery of Mistaken Payments' 'recovery of Imposts Act Limitation' 'declaratory Relief' 'costs and Contribution Orders']
['administrative Law' 'strata Schemes' 'restitution' 'civil Procedure'] ['jurisdiction of Strata Schemes Adjudicator' 'validity of Strata by Laws' 'promotional Levies' 'ultra Vires by Laws' 'recovery of Mistaken Payments' 'recovery of Imposts Act Limitation' 'declaratory Relief' 'costs and Contribution Orders']

Case Brief

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Procedural Posture

Administrative Law Judicial Review and Cross Claim Concerning Strata Scheme by Laws and Promotional Levies / Summons Seeking Relief From Adjudicator's Orders; Cross Claim for Declarations, Restitution, Interest, Account Corrections and Costs

Legal Issues

  1. 1 ['Whether the Adjudicator had jurisdiction under s157 of the Strata Schemes Management Act 1996 to repeal special by-law 18 ab initio and order repayment of money paid under it.' 'Whether special by-law 18 was invalid because the owners corporation lacked power to make it and because it was inconsistent with the Strata Schemes Management Act 1996.' 'Whether by-law 11 was invalid for the same reasons as special by-law 18.' 'Whether Mr and Mrs Di Francesco were entitled to restitution of promotional levies and interest paid under invalid by-laws.' 'Whether the Recovery of Imposts Act 1963 barred recovery of the payments.' 'Whether payments, interest and costs should be paid from contributions levied only on lot owners other than lot 8 under s229(2) of the Strata Schemes Management Act 1996.']

Ratio Decidendi

The Adjudicator's orders were quashed because, although by-law 18 was beyond the owners corporation's power and invalid, the Adjudicator purported to act under s157, which did not authorise retrospective repeal of an invalid by-law or repayment orders for this by-law. By-law 18 and by-law 11 were invalid because they imposed promotional levies outside the by-law making powers in the Strata Schemes Management Act 1996 and inconsistently with the statutory contribution regime, including s78(2). The payments made under those void by-laws were recoverable in restitution with interest, and the Recovery of Imposts Act 1963 did not bar recovery because the payments were not public imposts made...

Court Disposition

Adjudicator's orders quashed; summons otherwise dismissed; cross claim substantially allowed with declarations of invalidity, verdict, interest, account correction, notification to Registrar General, costs and s229(2) contribution order.

Orders

  • ['The orders of the Adjudicator made on 9 January 2007 are quashed.' 'Otherwise the summons is dismissed.' 'Special by-law 18 is declared invalid, with the declaration to operate from 19 December 2003.' 'By-law 11 is declared invalid, with the declaration to operate from the date of registration of Strata Plan...