The Owners - Strata Plan No 70798 v Bakkante Constructions Pty Limited [2013] NSWSC 848

The Owners - Strata Plan No 70798 v Bakkante Constructions Pty Limited [2013] NSWSC 848

The commencement and expansion of proceedings in the CTTT by the executive committee were done without authority of the lot owners in general meeting and in contravention of the requirements of s 80D and Regulation 15 (no resolution and no appropriate cost estimate). Therefore, the proceedings so commenced and expanded are invalid and must be dismissed.

Parties
Plaintiff: The Owners - Strata Plan No 70798; First Defendant: Bakkante Constructions Pty Limited; Second Defendant: William Andrew Zankin
Jurisdiction
Australia
Judgment Date
19 July 2013
Procedural Posture
Hearing of Separate Questions / Judgment on Separate Questions
Outcome
proceedings dismissed, costs to defendants
Legal Topics
Section 80 D Strata Schemes Management Act 1996 (nsw), Regulation 15 Strata Schemes Management Regulation 2005 (nsw), Legal Costs Approval, Commencement of Proceedings by Executive Committee, Authority of Strata Executive Committee
Statutory Construction Strata Law Section 80 D Strata Schemes Management Act 1996 (nsw) Regulation 15 Strata Schemes Management Regulation 2005 (nsw) Legal Costs Approval Commencement of Proceedings by Executive Committee Authority of Strata Executive Committee

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Parties

The Owners - Strata Plan No 70798

Plaintiff

Bakkante Constructions Pty Limited

First Defendant

William Andrew Zankin

Second Defendant

Procedural Posture

Hearing of Separate Questions / Judgment on Separate Questions

Legal Issues

  1. 1 Did the plaintiff comply with the Strata Schemes Act and Regulations in commencing proceedings in the CTTT on 13.2.2009?
  2. 2 Did the plaintiff expand the CTTT proceedings in about May 2009 to include a claim for building defects for the whole of the common property?
  3. 3 Was compliance with section 80D required for that expansion and was it achieved?

Ratio Decidendi

The commencement and expansion of proceedings in the CTTT by the executive committee were done without authority of the lot owners in general meeting and in contravention of the requirements of s 80D and Regulation 15 (no resolution and no appropriate cost estimate). Therefore, the proceedings so commenced and expanded are invalid and must be dismissed.

Court Disposition

proceedings dismissed, costs to defendants

Orders

  • The answers to the separate questions are: (a) No, (b) Yes, (c)(i) Yes, (ii) No, (e) Yes
  • The plaintiff should pay the defendants' costs of the proceedings