Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Travis v The Owners - Strata Plan No 48216 [2022] NSWCATCD 202 Hearing dates: 02 September 2022 Date of orders: 02 September 2022 Decision date: 02 September 2022 Jurisdiction: Consumer and Commercial Division Before: G Blake AM SC, Senior Member Decision: (1) The proceedings are dismissed. Catchwords: LAND LAW — Strata title — application for interim orders – the principles to be applied – proceedings dismissed Legislation Cited: Strata Schemes Management Act 2015 (NSW), s 231 Cases Cited: MP Water Pty Ltd v Veolia Water Australia Pty Ltd [2021] NSWSC 582 Category: Principal judgment Parties: Stephen Travis (Applicant) The Owners - Strata Plan No 48216 (Respondent) Representation: Applicant (self-represented) File Number(s): SC 22/38341 Publication restriction: Nil REASONS FOR DECISION Overview 1. In these proceedings the applicant, Stephen Travis, who is the principal of a lot owner, seeks relief under the Strata Schemes Management Act 2015 (NSW) (SSM Act) against the respondent, The Owners - Strata Plan No 48216, which is the owners corporation responsible for the administration of strata scheme 48216. 2. The applicant filed a strata and community schemes application on 25 August 2022 and seeks an interim order set out in section 4A of the application: "That for the Extraordinary General Meeting (EGM) to be held on 07-Sep-2022 for the purposes of The Owners Strata Plan 48216 to resolve matters pertaining to the good management of the scheme: 1) The currently contracted strata managing agent for the scheme - Strata HQ - and its director Mr Daniel Dekell be appointed and remain for the full duration of the meeting (including adjournments if any), both the Chairmanship and Secretary of the Owners Corporation (OC); 2) The holding of the position of Chairmanship and Secretary of the OC by the strata managing agent extend for the duration and purposes of this meeting only - for the purposes of this application only; 3) The holding of the positions retains all administrative responsibilities - as designated to the Chairman and Secretary in all relevant sections of the Strata Schemes Management Act - pertaining to aspects of the EGM, specifically but not limited to the issuing of the agenda, notifications, holding of the meeting (by whatever practical means), declaration of voting results, compilation and issuing of minutes, all adjournments, and any other relevant matters." 1. On 29 August 2022, the Tribunal made procedural directions in connection with the interim application including for the provision of evidence by the applicant and the respondent. 2. On 29 August 2022, the Registrar fixed the matter for hearing and gave notice to the parties of a virtual hearing for today. 3. Mr Travis appears for himself and there is no representation for the respondent. 4. At the hearing Mr Travis relied upon the following evidence: 1. the affidavit of Daniel Dekell sworn on 31 August 2022 (which has been marked as exhibit A1); 2. the statement of himself dated 25 August 2022 (which has been marked as exhibit A2); 3. a bundle of documents marked as appendices 1 to 10 inclusive (which has been marked as exhibit A3); 4. an email of 29 August 2022 to lot owners by the applicant (which has been marked as exhibit A4); 5. an email sent by the applicant to the lot owners on 31 August 2022 (which has been marked as exhibit A5). 1. The applicant also relies on written submissions dated 31 August 2022 addressed to the Registrar and made oral submissions. 2. The substance of the applicant's submissions are as follows: 1. firstly, this is a large scheme and there are no longer the required three members to constitute the strata committee; 2. secondly, allegations that unauthorised works have been carried out over the last three years by various lot owners; 3. thirdly, an extraordinary general meeting has been called by Mr Dekell, who is the strata managing agent or at least he is a member of the staff of the strata managing agent, for 7 September 2022 which contains a number of motions which are highly controversial; 1. In response to my question the applicant says he provides an undertaking as to damages. 2. It appears that the orders sought by the applicant are under s 237 of the SSM Act which provides as follows: 237 Orders for appointment of strata managing agent (1) Order appointing or requiring the appointment of strata managing agent to exercise functions of owners corporation The Tribunal may, on its own motion or on application, make an order appointing a person as a strata managing agent or requiring an owners corporation to appoint a person as a strata managing agent— (a) to exercise all the functions of an owners corporation, or (b) to exercise specified functions of an owners corporation, or (c) to exercise all the functions other than specified functions of an owners corporation. (2) Order may confer other functions on strata managing agent The Tribunal may also, when making an order under this section, order that the strata managing agent is to have and may exercise— (a) all the functions of the chairperson, secretary, treasurer or strata committee of the owners corporation, or (b) specified functions of the chairperson, secretary, treasurer or strata committee of the owners corporation, or (c) all the functions of the chairperson, secretary, treasurer or strata committee of the owners corporation other than specified functions. 1. Those subsections deal with the appointment compulsory strata managing agent to exercise functions of the owners corporation and to confer other functions on the strata managing agent. Subsection (3) provides for circumstances in which an order may be made, and para (a) provides such an order may be made where the management of a strata scheme the subject of an application is not functioning or is not functioning satisfactorily. 2. I point out that the orders sought in the application do not clearly engage s 237(1) as to whether all the functions of the owners corporation or specified functions or all the functions other than specified functions are to be undertaken by the strata managing agent. This is a serious deficiency in the application. Rather the orders appear to focus on the compulsory strata managing agent exercising functions of the chairperson and the secretary. 3. I point out that the notice of an extraordinary general meeting which is being convened on 7 September 2022 which contains the controversial motions I referred to and was issued on 10 August 2022, has as one of the items of the agenda to appoint members of the strata committee to ensure that there is a functioning strata committee. 4. Section 231 of the SSM Act provides: 231 Interim orders (1) If an applicant for an order by the Tribunal under this Act requests the making of an interim order and the Tribunal is satisfied on reasonable grounds that urgent considerations justify the making of the order, the Tribunal may— (a) make an interim order in the form of any order that could otherwise be made by the Tribunal, and 1. In my view the principles to be applied under s 231(1) of the SSM Act are those that are applied for the granting of an interlocutory injunction including an interlocutory mandatory injunction under the general law, and I refer to the judgment in MP Water Pty Ltd v Veolia Water Australia Pty Ltd [2021] NSWSC 582 at [56]-[61]. In addition to those requirements, it is also necessary as specified in subs (1) that the Tribunal is satisfied on reasonable grounds that urgent considerations justify the making of the order. 2. The application is deficient in that it fails to seek any order under s 237(1) of the SSM Act, and for that reason alone the proceedings should be dismissed. There is no point making an order under subs (2) because it is premised on the making of an order under subs (1). 3. Even if the application was to be construed as seeking relief under s 237(1), I would not be granting any relief for several reasons: 1. firstly, I am not satisfied that that there are urgent considerations on reasonable grounds that justify the making of the order. It is quite clear that if the owners corporation is dysfunctional it has been dysfunctional for a substantial period of time, and no explanation has been given why such an application was not brought earlier; 2. secondly, even if I was satisfied that there is a serious question to be tried, the balance of convenience does not support the appointment of a compulsory strata managing agent when the whole purpose or a substantial purpose of the extraordinary general meeting is to appoint members of the strata committee to ensure that there is a properly functioning strata committee; 3. thirdly, there would be no point whatsoever in holding an extraordinary general meeting if a strata managing agent was appointed because the strata managing agent would have full powers to control the owners corporation and so to that extent the applications seems quite confused; 4. fourthly, this is not really seeking interim relief but a final order in respect of a particular meeting and so for that reason alone I would not be making an interim order. 1. And so for all those reasons I refuse the application and the proceedings are dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 04 September 2023 - Formatting amendments. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 September 2023