Jetz Luxury Homes Pty Ltd v The Owners - Strata Plan No. 89564 [2021] NSWCATCD 133

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Jetz Luxury Homes Pty Ltd v The Owners - Strata Plan No. 89564 [2021] NSWCATCD 133 Hearing dates: On the papers Date of orders: 5 November 2021 Decision date: 05 November 2021 Jurisdiction: Consumer and Commercial Division Before: G Blake AM SC, Senior Member Decision: (1) The proceedings are dismissed. Catchwords: LAND LAW — Strata title — Owners corporation — Whether the applicant is liable to the respondent for charges relating to unpaid contributions Legislation Cited: Strata Schemes Management Act 2015 (NSW) Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Jetz Luxury Homes Pty Ltd (Applicant) The Owners - Strata Plan No 15599 (Respondent) Representation: A Attard (Applicant) N Stephenson (Strata manager) (Respondent) File Number(s): SC 21/29521 Publication restriction: Nil

REASONS FOR DECISION

Overview 1. In these proceedings the applicant, Jetz Luxury Homes Pty Ltd, who is the owners of lots 1 to 3, seeks relief against the respondent, The Owners - Strata Plan No 89564, which is the owners corporation responsible for the management of the strata scheme related to strata plan no 89564 (SP89564) under the Strata Schemes Management Act 2015 (NSW) (SSM Act) in respect of five amounts totalling $2,551.67 it has been charged by the respondent. 2. I have decided to make an order that the proceedings should be dismissed.

The background 1. SP89564, which was registered on 23 August 2016, is comprised by 11 lots and common property, and is a residential development at Leichhardt. 2. At all relevant times Bright & Duggan Pty Ltd (B&D) has been the strata managing agent of the respondent. 3. The registered by-laws for SP89564 relevantly include the following by-law: "24 Service of Documents on Owner of Lot by Owners Corporation A document may be served on the owner of a lot by electronic means if the person has given the owners corporation an e-mail address for the service of notices and the document is sent to that address." 1. On 1 October 2019, the respondent held its annual general meeting (the 1 October 2019 AGM). The minutes of the 1 October 2019 AGM (the 1 October 2019 AGM minutes) relevantly record that the respondent resolved: 1. contributions are to be payable in regular periodic instalments including payments to the administrative fund and the capital works fund on 1 June 2020 and 1 September 2020 (resolution 7); 2. to authorise the strata managing agent to take various actions for the purpose of collecting levy contributions including to issue arrears notices, to obtain legal advice and/or retain legal representation on its behalf, and to commence court proceedings against any lot owner in relation to all matters arising out of the recovery of levy contributions and the recovery of other debts, including penalties, interest, legal and other costs (resolution 8). 1. On 20 April 2020, B&D issued the following three levy notices addressed to the applicant at 3/283-285 Parramatta Road, Leichhardt claiming a total of $1,737.32 which was due on 1 June 2020 (the 20 April 2020 levy notices): 1. in respect of lot 1 claiming $959.33, being $187.50 and $71.83 for the administrative fund and the capital works fund for the period from 1 June 2020 to 31 August 2020 respectively and $700.00 for "Garage Door" on 1 September 2019; 2. in respect of lot 2 claiming $432.22, being $312.50 and $119.72 for the administrative fund and the capital works fund for the period from 1 June 2020 to 31 August 2020 respectively; 3. in respect of lot 3 claiming $432.22, being $250.00 and $95.77 for the administrative fund and the capital works fund for the period from 1 June 2020 to 31 August 2020 respectively. 1. On 28 October 2020, the respondent, which was represented by Grace Lawyers Pty Ltd (Grace), commenced proceedings 20220/00308228 in the Local Court of New South Wales against the applicant (the Local Court proceedings) by filing a statement of claim in which it claimed a total of $2,38.99 as follows: 1. unpaid contributions for lot 1: $2,134.49; 2. interest on pursuant to s 85 of the SSM Act to 26 October 2020 at a rate of 10% and continuing until judgement: $14.70; 3. court filing fees: $105.00; 4. service fees: $69.00; 5. solicitor's fees: $415.80. 1. On 11 November 2020, the applicant commenced proceedings SC 20/47200 in the Tribunal against the respondent (the SC 20/47200 proceedings) by filing a strata schemes application in which it sought the following orders: "1. A Key be provided to the electrical switch room. 2. A levy of $700 charged to Lot 1, for garage door removed. 3. All fees relating to interest and body corporate costs for charging outstanding levies removed. 4. All fees relating to court costs and solicitors fee removed." 1. On 23 April 2021, the Tribunal in the SC 20/47200 proceedings: 1. made the following orders (the 23 April 2021 orders): "1. On or before 7 May 2021 the respondent is to provide the applicant with a key to the switchboard room. 2. On or before 7 May 2021 the respondent is to remove from the applicant's levy account the charge of $700.00 said to relate to a garage, imposed on 1 September 2020, 3. The applicant may apply to have the matter relisted for further hearing in the event that these orders are not complied with." 1. made the following notation: "THE TRIBUNAL NOTES the removal of the $700 charge may have further implications for the proceedings in the Local Court brought by the respondent against the applicant and in relation to further charges appearing on the applicant's levy account after April 2020." 1. On or shortly after 30 June 2021, the respondent issued the statement in respect of lot 1 to the applicant for the period from 1 September 2019 to 30 June 2021 (the 1 September 2019 to 30 June 2021 lot 1 statement) which includes the following six debit entries: "01/09/19 … Garage Door … 700.00" "20/08/20 … Arrears Notice Fee … 198.00" "25/09/20 … Instruct Solicitor… 198.00" "08/10/20 … Grace#128194 … 60.50" "02/12/20 … Grace#128171 … 1,187.45" "02/12/20 … Grace#128180 … 907.72"