Owners of Strata Plan 63800 v Wolfe & 1 ors [2007] NSWSC 204

New South Wales Supreme Court

CITATION : Owners of Strata Plan 63800 v Wolfe & 1 ors [2007] NSWSC 204

HEARING DATE(S) : 08/03/2007

JUDGMENT DATE : 16 March 2007

JUDGMENT OF : Associate Justice Malpass

DECISION : The Summons is dismissed. The plaintiff is to pay the costs of the Summons.

CATCHWORDS : Dispute between owners corporation and unit owners - unpaid contributions and interest - claim for balance of legal costs of earlier proceedings as "expenses" under s80 - no basis shown justifying disturbance of decision of Magistrate.

LEGISLATION CITED : Local Court (Civil Claims) Rules 1998 Strata Schemes Management Act 1996 (NSW)

CASES CITED : Coshott v The Owners of Strata Plan No. 48892 [2006] NSWSC 308

Owners of Strata Plan 63800 PARTIES : Jane Alice Margaret Wolfe Robert Fontanot

FILE NUMBER(S) : SC 12837/06

COUNSEL : Mr R. A. Parsons (Pl) Mr S. A. Kerr / Ms S. Mirzabegian (Def)

SOLICITORS : Norbert Lipton & Co (Pl) Bartier Perry Solicitors (Def)

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : 9450/05

LOWER COURT JUDICIAL OFFICER : Longley LCM

LOWER COURT DATE OF DECISION : 20/12/2005

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

ASSOCIATE JUSTICE MALPASS

16 MARCH 2007

12837/06 Owners of Strata Plan 63800 v Wolfe & 1 ors

JUDGMENT 1 HIS HONOUR: The plaintiff is the owner corporation managing a strata scheme relating to 73 Union Street, Pyrmont. The defendants were the owners of apartment 5. 2 The plaintiff brought proceedings in the Small Claims Division of the Local Court to recover unpaid contributions, interest and costs. The defendants had earlier brought an application in the Consumer, Trader and Tenancy Tribunal (the Tribunal) challenging the resolution pursuant to which the contributions had been levied. The application to the Tribunal was dismissed on 29 April 2004. The defendants paid the outstanding contributions and interest (under protest). The payment was for contributions in the sum of $5,607 and interest in the sum of $176.66. The proceedings came before an Assessor on 23 August 2004. The defendants withdrew their defence and it was struck out. An order for costs was made in favour of the plaintiff pursuant to Part 31A r12 of the Local Court (Civil Claims) Rules 1998. It was assessed in the sum of $676.60 (a copy of the order made by the Local Court is at p18 of Exhibit EFS 1). 3 On 8 April 2005, the plaintiff demanded payment from the defendants of expenses (being in the sum of $3,526.77). These were claimed pursuant to s80 of the Strata Schemes Management Act 1996 (NSW) (the Act). This sum represented the difference between the award of costs made by the Assessor and the costs actually incurred by the plaintiff in respect of legal services to pursue the claim against the defendants (this has been referred to as "the gap"). 4 Further proceedings were commenced in the Small Claims Division of the Local Court to recover "the gap" (the sum claimed was $3,256.77). The proceedings were defended and transferred to the General Division. They were heard and determined by Longley LCM on 20 December 2005. He found in favour of the defendants. He delivered an ex tempore judgment. He made findings. He expressed the opinion that there was an estoppel.