The Owners of Strata Plan 75633 v Axiom Property Consulting Pty Limited [2011] NSWSC 1542

Supreme Court New South Wales

Medium Neutral Citation: The Owners of Strata Plan 75633 v Axiom Property Consulting Pty Limited [2011] NSWSC 1542 Hearing dates: 18 October 2011 Decision date: 14 December 2011 Before: HOEBEN J Decision: (1) A declaration that Axiom by its conduct has unlawfully detained the books and records since 24 May 2009. (2) A declaration that during the period of Axiom's appointment as compulsory strata manager of the owners corporation, up to and including 21 January 2010, Axiom has held the administrative and sinking funds as a constructive trustee of the owners corporation. (3) I order that Axiom pay to the owners corporation the following damages for its wrongful detention and failure to properly maintain the books and records: (i) Legal costs, not otherwise recovered, incurred by the owners corporation in respect of applications in the CTTT to recover its books and records before the commencement of these proceedings as agreed or assessed. (ii) Costs incurred by Sydney Strata of $17,449.58. (iii) Costs incurred by Sydney Strata in reconstructing the books and records $5,610. (4) I order that Axiom pay to the owners corporation the amount of $62,645.26 plus interest calculated pursuant to s100 of the Civil Procedure Act 2005 from 24 May 2009. (5) I order that account be taken of all monies received and expenses incurred by Axiom on behalf of the owners corporation in respect of Strata Plan 75633. (6) I order that Axiom pay to the owners corporation such monies as may be found to be owing to the owners corporation after the taking of the account. (7) I order that Axiom pay the costs of the owners corporation of these proceedings as agreed or assessed. Catchwords: Claim by owners corporation against former compulsory strata manager - claim in detinue and conversion - refusal to deliver up books and records - need to reconstruct records - additional work performed by new strata manager as a result of non-delivery of books and records - legal costs incurred by owners corporation in seeking orders for delivery up of books and records - failure by a former compulsory strata manager to maintain books and records - entitlement of owners corporation to account - nature of and entitlement to damages by owners corporation. Legislation Cited: Civil Procedure Act 2005 Strata Schemes Management Act 1996 Cases Cited: Astley v Aust Trust Limited (1999) 170 CLR 1 Asset Risk Management v Hyndes (1999) NSWCA 201, [8] Brambles Australia Ltd v Tatale Pty Ltd [2004] NSWCA 232 BP Refinery (Western Port) v Shire of Hastings (1977) 180 CLR Buzrio Pty Limited v CTTT & Ors [2009] NSWSC 836 Buzrio Pty Limited v Consumer Trader and Tenancy Tribunal & Ors [2009] NSWSC 937 Egan v State Transport Authority (1982) 31 SASR 482, 532 Gaba Formwork Contractors v Turner Corporation (1993) 32 NSWLR 175, 177 - 9 Category: Principal judgment Parties: The Owners of Strata Plan 75633 - Plaintiff Axiom Property Consulting Pty Limited - Defendant Representation: Mr J Knackstredt - Plaintiff N/A - Defendant McLachlan Thorpe Partners - Plaintiff N/A - Defendant File Number(s): 2010/39622