The Owners – Strata Plan No 82306 v Anderson [2017] NSWCATCD 85

The Owners – Strata Plan No 82306 v Anderson [2017] NSWCATCD 85

The Adjudicator's order of 30 June 2016 was duly made under Ch 5 of the 1996 Act, took effect by 7 July 2016, and imposed a real and continuing obligation on Ms Anderson to replace the removed carpet and underlay with a compliant floor finish and provide an acoustic report. Section 30(1) of the Interpretation Act preserved that accrued obligation and the legal proceeding and remedy under s 202 of the 1996 Act despite repeal, and neither Sch 3 to the 2015 Act nor any other provision disclosed a contrary intention. The NCAT Act civil penalty basis failed because the Owners Corporation was not an authorised official under s 75. Ms Anderson knowingly failed to comply with the Adjudicator's...

Jurisdiction
Australia
Judgment Date
31 October 2017
Procedural Posture
Application for Civil Pecuniary Penalty for Contravention of a Strata Schemes Adjudicator's Order / Principal Judgment After Hearing in the Consumer and Commercial Division of the Civil and Administrative Tribunal of New South Wales
Outcome
The Tribunal held that the NCAT Act civil penalty application was not properly commenced but that it had authority under s 202 of the 1996 Act, as preserved by s 30 of the Interpretation Act, to impose a conditional pecuniary penalty for contravention of the Adjudicator's order.
Legal Topics
["enforcement of Strata Schemes Adjudicator's Order" 'effect of Repeal of Strata Schemes Management Act 1996 (nsw)' 'savings and Transitional Provisions' 'interpretation Act 1987 (nsw) S 30' 'pecuniary Penalty Under Strata Schemes Management Act 1996 (nsw) S 202' 'authorised Official Requirement for NCAT Act Civil Penalty Proceedings']
['strata Schemes' 'statutory Construction' 'civil Penalties'] ["enforcement of Strata Schemes Adjudicator's Order" 'effect of Repeal of Strata Schemes Management Act 1996 (nsw)' 'savings and Transitional Provisions' 'interpretation Act 1987 (nsw) S 30' 'pecuniary Penalty Under Strata Schemes Management Act 1996 (nsw) S 202' 'authorised Official Requirement for NCAT Act Civil Penalty Proceedings']

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Procedural Posture

Application for Civil Pecuniary Penalty for Contravention of a Strata Schemes Adjudicator's Order / Principal Judgment After Hearing in the Consumer and Commercial Division of the Civil and Administrative Tribunal of New South Wales

Legal Issues

  1. 1 ["Whether the Tribunal had authority to hear and determine an application made after repeal of the Strata Schemes Management Act 1996 (NSW) for a civil penalty for non-compliance with an adjudicator's order made before repeal." "Whether the Owners Corporation's application for a penalty under ss 72(3), 75 and 77 of the Civil and Administrative Tribunal Act 2013 (NSW) was properly commenced by an authorised official." 'Whether s 30(1) of the Interpretation Act 1987 (NSW) preserved the right to institute proceedings under s 202 of the Strata Schemes Management Act 1996 (NSW) as if that Act had not been repealed.' "Whether Ms Anderson contravened the Adjudicator's order of 30 June 2016 and, if so, whether and in what amount a pecuniary penalty should be imposed."]

Ratio Decidendi

The Adjudicator's order of 30 June 2016 was duly made under Ch 5 of the 1996 Act, took effect by 7 July 2016, and imposed a real and continuing obligation on Ms Anderson to replace the removed carpet and underlay with a compliant floor finish and provide an acoustic report. Section 30(1) of the Interpretation Act preserved that accrued obligation and the legal proceeding and remedy under s 202 of the 1996 Act despite repeal, and neither Sch 3 to the 2015 Act nor any other provision disclosed a contrary intention. The NCAT Act civil penalty basis failed because the Owners Corporation was not an authorised official under s 75. Ms Anderson knowingly failed to comply with the Adjudicator's...

Court Disposition

The Tribunal held that the NCAT Act civil penalty application was not properly commenced but that it had authority under s 202 of the 1996 Act, as preserved by s 30 of the Interpretation Act, to impose a conditional pecuniary penalty for contravention of the Adjudicator's order.

Orders

  • ['Subject to order 2, Prudence Anderson is to pay a pecuniary penalty of $2,500.00 to the Director General of the Department of Fair Trading on or before 15 January 2018.' 'Order 1 ceases to have effect if, on or before 12 January 2018, Prudence Anderson has installed in Lot 2 in Strata Plan No 82306 in place of the...