The Owners – Strata Plan No. 61285 v Taylor (No.2) [2022] NSWCATCD 118

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: The Owners – Strata Plan No. 61285 v Taylor (No.2) [2022] NSWCATCD 118 Hearing dates: 08 June 2022 Date of orders: 09 September 2022 [amended 08 November 2022] Decision date: 09 September 2022 Jurisdiction: Consumer and Commercial Division Before: M Harrowell, Deputy President Decision: The Notice of Order issued on 9 September 2022 is amended under s63 of the NSW Civil and Administrative Tribunal Act 2013 and should read as follows: 1. Pursuant to s 247A of the Strata Schemes Management Act 2015 (NSW) the respondent is required to pay a pecuniary penalty of 35 penalty units being an amount of $3850.00. 2. Order 1 is stayed pending determination of the issue of to whom the penalty should be paid (Additional Issue). 3. In connection with the Additional Issue and the question of whether the respondent should be ordered to pay the applicant's costs of these proceedings the following directions are made: a) On or before 12 September 2022 the applicant is to file and serve written submissions in respect of the remaining issues; b) On or before 26 September 2022 the respondent is to file and serve written submissions in reply; c) On or before 3 October 2022 the applicant is to file and serve submissions in response; d) The parties submissions are to include submissions about whether an order should be made dispensing with a further hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 4. The Tribunal directs the Registrar to give a copy of these orders and reasons to the Commissioner of Fair Trading to consider whether the Minister or Commissioner wishes to intervene and make submissions about to whom a civil penalty imposed under s 247A of the Strata Schemes Management Act 2015 should be paid. 5. Any notice of intention to intervene should be filed and served within 21 days of the date of these orders. Catchwords: LAND LAW – Strata title – Civil Penalty – contravention of Tribunal order – s 247A Strata Schemes Management Act 2015 – assessment of penalty – deterrence – relevant considerations – relevance of maximum penalty when assessing appropriate penalty – payment of penalty – whether penalty payable to applicant, the Crown or some other person – power of the Tribunal to direct to whom the penalty is to be paid Legislation Cited: Design and Building Practitioners Act 2020 (NSW) Building Practitioners Regulation 2021 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Evidence Act 1995 (NSW) Fair Work Act 2009 (Cth) Home Building Act 1989 (NSW) Strata Schemes Management Act 1996 (NSW) Strata Schemes Management Act 2015 (NSW) Cases Cited: Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 Forster v Hunter New England Area Health Service [2010] NSWCA 106, Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 The Owners – Strata Plan No. 61285 v Taylor [2022] NSWCATCD 48 The Owners – Strata Plan No 82306 v Anderson [2017] NSWCATCD 85 Westbury v The Owners – Strata Plan No 64061 [2021] NSWCATEN 3 Texts Cited: Nil Category: Principal judgment Parties: The Owners – Strata Plan No. 61285 (Applicant) Cameron Taylor (Respondent) Representation: J McGrath, strata agent (Applicant) Respondent (Self-represented) File Number(s): SC 21/47527