Westbury v The Owners – Strata Plan No 64061 [2021] NSWCATEN 3

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Westbury v The Owners – Strata Plan No 64061 [2021] NSWCATEN 3 Hearing dates: 5 August 2020 Date of orders: 12 February 2021 Decision date: 12 February 2021 Jurisdiction: Enforcement Before: Armstrong J, President J Boland AM ADCJ, Deputy President M Harrowell, Deputy President Decision: (1) Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), an order is made dispensing with a hearing in relation to the admission of and reliance upon the documents marked Exhibits H and J. (2) The documents marked Exhibits H and J are admitted as evidence in the application. (3) Pursuant to s 77(2) of the Civil and Administrative Tribunal Act 2013 (NSW), the respondent is to pay a pecuniary penalty in the sum of $6,600.00. (4) The respondent is to pay the costs of the applicants, such costs to be as agreed or assessed on an ordinary basis. Catchwords: CIVIL PENALTIES – application for civil pecuniary penalty under s 77 of the Civil and Administrative Tribunal Act 2013 – discretion to impose pecuniary penalty – factors that may be considered when determining whether a pecuniary penalty is to be imposed and amount of the penalty – decision to impose penalty not affected by appointment of managing agent under s 237 of the Strata Schemes Management Act 2015 EVIDENCE – whether to allow further or additional evidence - reopening of case CONSENT ORDERS – satisfaction of Tribunal– exercise of discretion - decline to make consent orders under ss 57 and 77 of the Civil and Administrative Tribunal Act 2013 COSTS – s 60 of the Civil and Administrative Tribunal Act 2013 – special circumstances Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) ss 59, 72, 75, 77 Conveyancing Act 1919 (NSW) s 88K Home Building Act 1989 (NSW) ss 18B, 18F Interpretation Act 1987 (NSW) ss 5, 9 Strata Schemes Management Act 1996 (NSW) (repealed) Strata Schemes Management Act 2015 (NSW) s 237, 56, 57 Corporations Act 2001 (Cth) s 5F Cases Cited: Armee v Brealey [2017] NSWCATAP 14 Australian Competition and Consumer Commission v Multimedia International Services Pty Ltd [2016] FCA 439 Australian Securities and Investments Commission v Commonwealth Bank of Australia [2020] FCA 790 Australian Securities and Investments Commission v Elm Financial Services Pty Ltd (2005) 55 ACSR 411; (2005) NSWSC 1020 Australian Securities and Investments Commission v Rich [2006] NSWSC 826 Barbaro v The Queen (1914) 253 CLR 58 Commissioner for Fair Trading v Edward Lees Imports Pty Ltd (No 2) [2019] NSWCATAP 222 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46 In the matter of Macquarie Investment Management Limited [2016] NSWSC 1184 Director of Public Prosecutions v Khoury [2014] NSWCA 15; 306 ALR 86 Fair Work Ombudsman v Australian Workers' Union [2020] FCA 60 Gaskin v Ollerenshaw [2010] NSWSC 788 Jesseron Holdings Pty Limited v The Middle East Trading Consultants Pty Ltd (No 2) (1994) 122 ALR 717 McLaughlin v Dungowan Manly Pty Limited [2010] NSWSC 89 Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Mesiha v Murrell [2017] NSWCATAP 1 Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543 at [93]; [2007] FCAFC 65 Telstra Corporation Limited v Australian Competition & Consumer Commission [2008] FCA 1436 The Owners – Strata Plan No 82306 v Anderson [2017] NSWCATCD 85 Urban Transit Authority v Nweiser (1982) 28 NSWLR 471 Texts Cited: Nil Category: Principal judgment Parties: Garth Westbury (First Applicant) Margaret Westbury (Second Applicant) The Owners – Strata Plan No 64061 (Respondent) Representation: Counsel: M Bradford (Applicants)