Owners of Strata Plan 36131 v Dimitriou [2009] NSWCA 27

Owners of Strata Plan 36131 v Dimitriou [2009] NSWCA 27

Section 80 of the Strata Schemes Management Act 1996 permits an owners corporation to recover as a debt expenses, including legal costs and disbursements, reasonably incurred in recovering unpaid contributions and interest, but only to the extent such costs are reasonable in amount and incurred in the recovery, and must be claimed in the same proceedings as the contributions themselves.

Parties
Claimant/appellant: Owners of Strata Plan 36131; Opponent/respondent: Georgina Dimitriou
Jurisdiction
Australia
Judgment Date
25 February 2009
Procedural Posture
Appeal / Judgment on Application for Leave to Appeal and on the Substantive Appeal From a Supreme Court Decision Setting Aside a Local Court Judgment
Outcome
Leave to appeal granted; appeal allowed; orders of Malpass AsJ set aside and Ms Dimitriou's summons dismissed with costs. Ms Dimitriou to pay Owners Corporation's costs of the application and appeal, subject to certificate under Suitors' Fund Act 1951 if eligible.
Legal Topics
Strata Titles, Legal Costs, Statutory Debt Recovery, Interpretation of Statutes
Real Property Civil Procedure Strata Titles Legal Costs Statutory Debt Recovery Interpretation of Statutes

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Parties

Owners of Strata Plan 36131

Claimant/appellant

Georgina Dimitriou

Opponent/respondent

Procedural Posture

Appeal / Judgment on Application for Leave to Appeal and on the Substantive Appeal From a Supreme Court Decision Setting Aside a Local Court Judgment

Legal Issues

  1. 1 Whether 'expenses' in s 80 Strata Schemes Management Act 1996 includes legal costs and disbursements
  2. 2 What limitations exist regarding legal costs claimable under s 80
  3. 3 Whether legal costs must be claimed in the same proceedings as contributions

Ratio Decidendi

Section 80 of the Strata Schemes Management Act 1996 permits an owners corporation to recover as a debt expenses, including legal costs and disbursements, reasonably incurred in recovering unpaid contributions and interest, but only to the extent such costs are reasonable in amount and incurred in the recovery, and must be claimed in the same proceedings as the contributions themselves.

Court Disposition

Leave to appeal granted; appeal allowed; orders of Malpass AsJ set aside and Ms Dimitriou's summons dismissed with costs. Ms Dimitriou to pay Owners Corporation's costs of the application and appeal, subject to certificate under Suitors' Fund Act 1951 if eligible.

Orders

  • Leave to appeal granted, notice of appeal to be filed within fourteen days.
  • Appeal allowed.