Lu v Community Association DP 270682 [2022] NSWCATAP 241

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lu v Community Association DP 270682 [2022] NSWCATAP 241 Hearing dates: 26 May 2022 Date of orders: 21 July 2022 Decision date: 21 July 2022 Jurisdiction: Appeal Panel Before: S Thode, Senior Member A Boxall, Senior Member Decision: 1. Appeal dismissed. Catchwords: APPEALS - COMMUNITY ASSOCIATION – appointment of compulsory manager – no issue of principle – appeal dismissed Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Regulation 2013 Community Land Management Act 1989 Community Land Management Regulation 2021 Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Guitang Lu (Appellant) Community Association DP 27062 (Respondent) Representation: Solicitors: Appellant (Self-represented) JS Mueller & Co (Respondent) File Number(s): 2022/00081736 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: 2022 NSWCATCD [*] Date of Decision: 01 March 2022 Before: G Ellis SC, Senior Member File Number(s): SC 21/32569

REASONS FOR DECISION

Background 1. In an application filed 27 July 2021 the appellant sought an order for the appointment of a compulsory manager pursuant to section 85 of the Community Land Management Act 1989 (the Act). It was the appellant's submission that the management structure of the respondent's scheme is not functioning, or not functioning satisfactorily, in that the respondent has demonstrated continuing and systemic breaches of the Act, the Regulations and the Community Management Statement. 2. The applicant is a lot owner in Community Association DP 270682 which is located at Norwest and has a total of 26 lots. After the first annual general meeting was held on 29 October 2012 a new managing agent was appointed. To that managing agent was delegated the powers of the Owners Association but not the powers of the Executive Committee or its officers. 3. On 16 December 2020 the applicant was elected to the executive committee. Just under 3 months later, on 11 March 2021, a resolution was passed to remove him from the executive committee. 4. At a meeting held on 3 February 2022 it was resolved to terminate the agreement with the former managing agent and a new managing agent was appointed. The former managing agent terminated the managing agency agreement with the respondent in the hope it would appease the appellant, resolve any friction between the appellant and other lot owners, and finalise any proceedings before Tribunal. 5. Regardless, the applicant commenced proceedings seeking an order that Universe Strata Services Pty Ltd be appointed to act as compulsory managing agent for the community association for a period of 12 months commencing from the date of orders. 6. The appellant alleged: 1. that the management structure of the respondent's scheme is not functioning or is functioning unsatisfactorily; and 2. that the respondent's scheme has demonstrated "continuing and systematic breaches" of the Act, the Regulations and the community management statement. 1. In his lengthy attachment to the original application the appellant alleged various breaches of the Act, in particular: 1. the failure by the [former] agent to give meeting minutes and resolutions to all owners; 2. the failure of the executive committee at its first meeting after being appointed to appoint proper officers; 3. the respondent recklessly committing continuing and systemic breaches of section 34 of the Act by not appointing officers in a timely fashion or at all; and 4. the unlawful appointment of officers of the executive committee; 5. the respondent's failure to follow certain by-laws; and 6. other voting irregularities. 1. The applicant summarised his case as follows: "with the above circumstances supported by evidence it is a reasonable conclusion that the management structure of the respondent's community scheme is not functioning satisfactorily, and it may be an appropriate solution for the Tribunal to order the appointment of a managing agent for the community scheme which is seeing conflicts in such nature as in the case of Falvey v Community Association DP 270469 (Strata and Community Schemes) NSWCTTT 410 (15 August 2013). (See p38 of the appellant's bundle dated 2 May 2022)." 1. Critically all the breaches complained of by the appellant pre-date the appointment of the new managing agent (see applicant's attachment to the Community Schemes Application Form dated 30 July 2021 outlining 11 breaches dating from 2018 to 2021). 2. The matter was listed for hearing on 21 February 2022. The appellant was self-represented and the respondent was legally represented by Mr W van Ede of JS Mueller & Co. 3. The critical findings are contained at page 22 of the decision from paragraph 73 and following. Among other things the member concluded that: [73] It is not necessary to consider the breaches alleged by the applicant since, even assuming they are each established, the appropriate action would be to appoint a new managing agent which has already occurred. Put another way since functions were delegated by the respondent to its managing agent, the alleged breaches reflected against the managing agent rather than the respondent. As the managing agent has recently been replaced by the respondent it would be a curious exercise of discretion to replace that recently appointed managing agent as that agent was not involved in any of the alleged breaches. … [75] Having considered both parties' written and oral evidence as well is the written and oral submissions, the tribunal finds that there was no racist conduct towards the applicant noting that a majority of the lot owners (i.e., members of the Association) are of Asian descent as is the wife of Mr Smith. While it is clear the applicant perceives there is racist conduct towards him by others the Tribunal is comfortably satisfied that is because the applicant does not perceive the impact of his conduct on others … [76] As a solicitor the applicant must be aware of the need to put his case to the witnesses for the other party. In many respects that was not done. Further, to the extent that the evidence of Mr Smith and Ms Riley conflict with that of the applicant, their evidence is preferred to his. In contrast to the direct, responsive answers of those two witnesses, the applicant was a pugnacious witness who gave non-responsive answers which were consistent with the suggestion that he is a person who is fixated on getting his own way. … [82] The Tribunal is not satisfied that the conduct of the applicant provides an adequate basis for an appointment that would deprive all other lot owners of their democratic rights.