The Owners – Strata Plan No. 61285 v Taylor (No. 3) [2023] NSWCATCD 1

The Owners – Strata Plan No. 61285 v Taylor (No. 3) [2023] NSWCATCD 1

The Tribunal has implied power, either as necessary or as an ancillary order, to direct to whom a civil penalty under s 247A is paid. The payee is not limited to the applicant or State, but discretion must be exercised judicially and not for windfall or retribution; penalty here payable to Commissioner due to lack of evidence of loss or damage to Owners Corporation.

Parties
Applicant: The Owners – Strata Plan No. 61285; First Respondent: Cameron Taylor; Second Respondent/intervenor: The Commissioner of Fair Trading, Department of Finance, Services and Innovation
Jurisdiction
Australia
Judgment Date
13 January 2023
Procedural Posture
Civil Penalty Application (strata Scheme) / Post Penalty Determination; Determination of Recipient of Penalty and Costs
Outcome
Penalty payable to Commissioner; stay dissolved; costs awarded to applicant.
Legal Topics
Civil Penalty, Contravention of Tribunal Order, Award of Costs, Statutory Interpretation, Power to Direct Recipient of Penalty
Land Law Strata Title Administrative Law Civil Penalty Contravention of Tribunal Order Award of Costs Statutory Interpretation Power to Direct Recipient of Penalty

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Parties

The Owners – Strata Plan No. 61285

Applicant

Cameron Taylor

First Respondent

The Commissioner of Fair Trading, Department of Finance, Services and Innovation

Second Respondent/intervenor

Procedural Posture

Civil Penalty Application (strata Scheme) / Post Penalty Determination; Determination of Recipient of Penalty and Costs

Legal Issues

  1. 1 Whether the Tribunal has authority to direct to whom a civil penalty is paid under s 247A of the Strata Schemes Management Act 2015 (NSW)
  2. 2 Whether an order for costs should be made in favour of the applicant

Ratio Decidendi

The Tribunal has implied power, either as necessary or as an ancillary order, to direct to whom a civil penalty under s 247A is paid. The payee is not limited to the applicant or State, but discretion must be exercised judicially and not for windfall or retribution; penalty here payable to Commissioner due to lack of evidence of loss or damage to Owners Corporation.

Court Disposition

Penalty payable to Commissioner; stay dissolved; costs awarded to applicant.

Orders

  • The penalty of $3,850.00, imposed by order 1 made 9 September 2022, is to be paid to The Commissioner of Fair Trading, Department of Finance, Services and Innovation immediately.
  • The stay provided by order 2 made 9 September 2022 is dissolved.