COSHOTT v THE OWNERS OF STRATA PLAN NO. 48892 [2006] NSWSC 308

New South Wales Supreme Court

CITATION : COSHOTT v THE OWNERS OF STRATA PLAN NO. 48892 [2006] NSWSC 308

HEARING DATE(S) : 30/03/06

JUDGMENT DATE : 20 April 2006

JUDGMENT OF : Cooper AJ at 1

DECISION : The appeal is dismissed.

CATCHWORDS : Special levy under s76(4) of Strata Schemes Management Act - Service of notice of imposition of levy under s78 Strata Schemes Management Act - Indemnity costs

LEGISLATION CITED : Local Courts Act 1982 Strata Schemes Management Act 1996 ss. 76, 78, 80(1)

John Anthony Jeans v John Richard Bruce & Ors (2004) NSWSC 539 CASES CITED : Port of Melbourne Authroity v Anshun Pty Ltd (1981) 147 CLR 589 The Council of the Municipality of Botany v Secretary Department of the Arts etc (1992) 34 FCR 412

PARTIES : ROBERT COSHOTT THE OWNERS OF STRATA PLAN NO 48892

FILE NUMBER(S) : SC 10028/2005

COUNSEL : Plaintiff: In person Defendant: P. Koroknay

SOLICITORS : Plaintiff: In person Defendant: David Le Page Solicitor

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : 1834 of 1998

LOWER COURT JUDICIAL OFFICER : Lulham LCM

- IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ACTING JUSTICE COOPER

THURSDAY APRIL 20 2006

10028/05 ROBERT COSHOTT (Plaintiff) v THE OWNERS OF STRATA PLAN NO. 48892 (Defendant)

JUDGMENT

Introduction 1 HIS HONOUR: By summons filed on 6 January 2005 the plaintiff appeals to this court from a judgment entered against him by His Honour Magistrate Lulham on 13 December 2004 in Civil Claims Proceedings in which the present defendant was the plaintiff and the present plaintiff was the defendant. 2 He seeks orders that he be granted leave, if required, to appeal and that the judgment of the Local Court be set aside and a verdict in his favour entered. Alternatively he seeks an order that the proceedings be remitted to the Local Court to be determined in accordance with the judgment of this court and the law. 3 Section 73(1) of the Local Courts Act 1982 (LCA) provides:- "(1) A party to proceedings under this part who is dissatisfied with the judgment or order of a court sitting in its general division may appeal to the Supreme Court against the judgment or order, but only as being erroneous in point of law". 4 As will be seen later some of the grounds of appeal allege that the judgment of the Local Court was erroneous in point of law. 5 Section 74(1) of the LCA provides:- "A party to proceedings under this part who is dissatisfied with the judgment or order of a court sitting in its general division may appeal to the Supreme Court against the judgment or order on a ground that involves a question of mixed law and fact, but only by leave of the Supreme Court". 6 At least one ground of appeal involves a question of mixed law and fact and so leave will be required. 7 Subsection 2 of section 74 provides that a party who is dissatisfied with an order as to costs of the Local Court may appeal to the Supreme Court against the order but only by leave of the Supreme Court. 8 One of the grounds of appeal involves an appeal against the magistrate's order as to costs. 9 Because of the circumstances of this case as will appear clear later it is convenient to deal with the points raised on the appeal before determining the question of leave. Proceedings in the Local Court 10 At the outset it is necessary to consider the nature of the proceedings before the Local Court. 11 The plaintiff in the Local Court is the owners corporation under the Strata Schemes Management Act 1996 (SSM Act) in respect of premises 3 Pine Hill Avenue Double Bay which consists of six units. The plaintiff alleged that the defendant was the registered proprietor of the property being Unit 2 and Lot 2 in Strata Plan 48892. The plaintiff sued to recover outstanding levies in relation to Lot 2 totalling $14,232.60 together with interest to 7 October 2003 of $1,170.44 and further claimed the sum of $4,792.93 being a debt claimed pursuant to section 80(1) of the SSM Act in respect of expenses incurred in recovering previous outstanding levies. 12 The levies claimed by the plaintiff comprised periodic levies from 1 June 2001 to 30 August 2003 totalling $9,273.60 plus what is described as a "special levy" due on 1 June 2003 of $4,960. I have separated the two classes of levy because the defendant raises an additional argument tin respect of the so called "special levy". 13 In addition the then plaintiff claimed interest. 14 The plaintiff in the Local Court also claimed expenses alleged to have been incurred in recovering earlier levies by way of proceedings in the Local Court at Waverley and in bankruptcy proceedings in the Federal Court. The claim in respect of the Waverley proceedings comprised actual expenses of $3,823.93 less credits of $1,703.00 leaving a balance claimed of $2,120.93. The claim in respect of the Federal Court proceedings was for costs and disbursements and counsel's fees totalling $1,985.00. 15 Before the Local Court the current plaintiff raised the following defences:- 1. He did not meet the definition of owner within the SSM Act .