Archibald v The Owners – Strata Plan No. 50441 [2023] NSWCATCD 111

Archibald v The Owners – Strata Plan No. 50441 [2023] NSWCATCD 111

The respondent contravened five separate consent orders requiring distinct repair works by failing to complete orders 4A, 4B, 4C, 4D and 4E by 2 December 2021. The applicants were not permitted to re-open their case because the further evidence was available earlier, was not shown to be likely to materially affect the outcome, and admission would prejudice the respondent and delay the proceedings. Prior findings in the s 237 proceedings established that orders 4A, 4B, 4C and 4E were completed by 16 March 2022, but order 4D remained incomplete. Penalties were warranted for deterrence and compliance with strata repair obligations, with lower penalties for orders completed by 16 March 2022...

Jurisdiction
Australia
Judgment Date
18 September 2023
Procedural Posture
Application for Imposition of a Civil Penalty Under S 247 a of the Strata Schemes Management Act 2015 for Contravention of Tribunal Consent Orders / Principal Judgment After Hearing, Including Determination of Application to Re Open and Costs
Outcome
Application for civil penalties granted in part; application to re-open refused; respondent ordered to pay civil penalties to the first applicant and 70% of the first applicant's costs, subject to liberty to seek a different costs order.
Legal Topics
['contravention of Consent Orders' 'strata Common Property Repair Works' 'application to Re Open Case' 'issue Estoppel' 'payment of Civil Penalty' 'special Circumstances Costs']
['strata Schemes' 'civil Penalties' 'administrative Tribunal Procedure' 'costs'] ['contravention of Consent Orders' 'strata Common Property Repair Works' 'application to Re Open Case' 'issue Estoppel' 'payment of Civil Penalty' 'special Circumstances Costs']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Imposition of a Civil Penalty Under S 247 a of the Strata Schemes Management Act 2015 for Contravention of Tribunal Consent Orders / Principal Judgment After Hearing, Including Determination of Application to Re Open and Costs

Legal Issues

  1. 1 ["Whether the applicants should be permitted to rely on Mr Archibald's affidavits dated 11 November 2022 and/or 30 January 2023." 'Whether the orders the subject of the penalty proceedings consisted of one order only or separate orders.' 'Whether the respondent contravened orders 4A, 4B, 4C, 4D and 4E made in SC 20/51793 on 2 June 2021.' 'Whether a penalty should be imposed under s 247A of the Strata Schemes Management Act 2015.' 'What amount of penalty should be imposed and to whom the penalty should be paid.' 'Whether the Tribunal should make a costs order.']

Ratio Decidendi

The respondent contravened five separate consent orders requiring distinct repair works by failing to complete orders 4A, 4B, 4C, 4D and 4E by 2 December 2021. The applicants were not permitted to re-open their case because the further evidence was available earlier, was not shown to be likely to materially affect the outcome, and admission would prejudice the respondent and delay the proceedings. Prior findings in the s 237 proceedings established that orders 4A, 4B, 4C and 4E were completed by 16 March 2022, but order 4D remained incomplete. Penalties were warranted for deterrence and compliance with strata repair obligations, with lower penalties for orders completed by 16 March 2022...

Court Disposition

Application for civil penalties granted in part; application to re-open refused; respondent ordered to pay civil penalties to the first applicant and 70% of the first applicant's costs, subject to liberty to seek a different costs order.

Orders

  • ['Pursuant to s 247A(1) of the Strata Schemes Management Act 2015, the respondent is to pay to the first applicant a civil penalty in the sum of 20 penalty units ($1,100) in respect of contravention of orders 4A, 4B, 4C and 4E made on 2 June 2021 in proceedings SC 20/51793.' 'Pursuant to s 247A(1) of the Strata...