Owners SP 46528 v Hall [2009] NSWSC 278

New South Wales Supreme Court

CITATION : Owners SP 46528 v Hall [2009] NSWSC 278

HEARING DATE(S) : 01.04.09

JUDGMENT DATE : 17 April 2009

JURISDICTION : Common Law Division

JUDGMENT OF : Kirby J

(1) The Summons by the plaintiff (the Owners' Corporation) is dismissed. (2) The plaintiff should pay the defendant's costs on the Summons, such costs not to include Senior Counsel. DECISION : (3) The defendant's cross appeal against the order of the Local Court refusing costs is upheld in part. (4) In lieu thereof, the Owners' Corporation should pay the defendant's costs of the Local Court proceedings, such costs to be assessed on an indemnity basis from 23 November 2007. (5) The defendant should also have 75% of his costs on the Cross Summons, such costs not to include Senior Counsel. (6) I order that the defendant, Mr Hall, is exempted from the payment of the costs orders made against the Owners' Corporation in paragraphs (2), (4) and (5) above.

CATCHWORDS : CIVIL LAW - appeal against Magistrate's decision - recovery of unpaid levies by Owners' Corportion and legal costs - STATUTORY CONSTRUCTION - operation and effect of s 80D of the Strata Schemes Management Act 1996 and Reg 12C of the Strata Schemes Management Regulation 1997 - effect of non-compliance with s 80D - mandatory or directory provisions - position of unit holders and position of third parties - constitution of Annual General Meeting - failure to comply with notice requirements - whether meeting a nullity - APPEAL - matters about which no ruling made by Magistrate - no appeal in relation to conclusions expressed in obiter - COSTS - general rule - costs follow the event - Magistrate departed from the general rule - interference with discretion of court below - irrelevant considerations - offer of compromise - indemnity costs.