The Owners – Strata Plan No. 61285 v Taylor [2022] NSWCATCD 48

The Owners – Strata Plan No. 61285 v Taylor [2022] NSWCATCD 48

The strata committee resolution was sufficient authority for the owners corporation to commence the civil penalty proceedings. The June order was made in the exercise of judicial power and could not be collaterally challenged in these penalty proceedings; in any event, there was no admissible evidence that the required works could not lawfully be done. The respondent's concessions and the admitted evidence established, on the balance of probabilities, contraventions of items 1 to 7 inclusive and item 9 of Appendix A to the June order. Reasonable excuse was not relevant to the existence of a contravention under s 247A, though it may be relevant to penalty.

Jurisdiction
Australia
Judgment Date
19 May 2022
Procedural Posture
Application for the Imposition of a Civil Penalty Under S 247 a of the Strata Schemes Management Act 2015 (nsw) / First Stage Determination of Whether Contraventions of the June Order Were Established, With Directions for Further Hearing on Penalty
Outcome
Contraventions of the June order were established; the proceedings were relisted to determine whether a civil penalty should be imposed and, if so, how much.
Legal Topics
['authority to Commence Proceedings' 'functions of Strata Committee' 'contravention of Tribunal Order Under Strata Schemes Management Act 2015 (nsw)' 'collateral Challenge to Primary Order' 'admissibility of Expert Evidence']
['land Law' 'strata Title' 'civil Penalty Proceedings'] ['authority to Commence Proceedings' 'functions of Strata Committee' 'contravention of Tribunal Order Under Strata Schemes Management Act 2015 (nsw)' 'collateral Challenge to Primary Order' 'admissibility of Expert Evidence']

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 the Imposition of a Civil Penalty Under S 247 a of the Strata Schemes Management Act 2015 (nsw) / First Stage Determination of Whether Contraventions of the June Order Were Established, With Directions for Further Hearing on Penalty

Legal Issues

  1. 1 ['Whether the penalty proceedings were properly authorised by the applicant.' 'Whether the June order was susceptible to collateral challenge on the basis that the works required by that order allegedly could not lawfully be done because they would not comply with the Building Code of Australia.' 'Whether a contravention of s 247A of the Strata Schemes Management Act 2015 (NSW) had been established.']

Ratio Decidendi

The strata committee resolution was sufficient authority for the owners corporation to commence the civil penalty proceedings. The June order was made in the exercise of judicial power and could not be collaterally challenged in these penalty proceedings; in any event, there was no admissible evidence that the required works could not lawfully be done. The respondent's concessions and the admitted evidence established, on the balance of probabilities, contraventions of items 1 to 7 inclusive and item 9 of Appendix A to the June order. Reasonable excuse was not relevant to the existence of a contravention under s 247A, though it may be relevant to penalty.

Court Disposition

Contraventions of the June order were established; the proceedings were relisted to determine whether a civil penalty should be imposed and, if so, how much.

Orders

  • ['On or before 27 May 2022 the applicant is to file and serve any further evidence and submission on penalty.' 'On or before 3 June 2022, the respondent is to file and serve any submissions and evidence in reply.' 'The notation and directions in orders 8 and 9 made in these proceedings on 8 December 2021 apply to...