The Owners - Strata Plan No 52098 v Khalil [2014] NSWLC 2

Local Court New South Wales

Medium Neutral Citation: The Owners - Strata Plan No 52098 v Khalil [2014] NSWLC 2 Hearing dates: 21/02/2014 Decision date: 10 March 2014 Jurisdiction: Civil Before: Assessor Olischlager Decision: Verdict for the defendant Catchwords: STRATA TITLES - recovery of unpaid levies - Strata Schemes Management Act 1996 - section 80 expenses Legislation Cited: Strata Schemes Management Act 1996 Legal Profession Act 2004 Cases Cited: Coshott v The Owners of Strata Plan No. 48892 [2006] NSWSC 308 Strata Plan 48892 v Robert Gilbert Coshott [2004] NSWLC 6 The Owners - Strata Plan 36131 v Dimitriou [2009] NSWCA 27; (2009) 74 NSWLR 370 Category: Principal judgment Parties: The Owners - Strata Plan No 52098 (plaintiff) Isis Khalil (defendant) Representation: Ms A Smith (for the plaintiff) Defendant in person File Number(s): 2013/277272

Judgment 1The plaintiff, the Owners of Strata Plan 52098, seeks to recover against the defendant, Ms Khalil, outstanding levies, interests and expenses pursuant to section 80 of the Strata Schemes Management Act 1996. Ms Khalil is the owner Lot 25 within the plaintiff's strata complex at Alfred Street North Neutral Bay. 2The plaintiff commenced these proceedings on 12 September 2013. The statement of claim seeks payment of unpaid levies for the period up to 30 August 2013 together with interest and expenses. An amended statement of claim was filed on 27 November 2012 seeking payment of levies due up until the period of 27 November 2012 together with interest and expenses. 3Section 80 expenses have continued to accrue through the conduct of these proceedings. The total amount of the claim as at the commencement of the hearing on 21 February 2014 was said to be $14,146.96. In order for the claim to remain within the Small Claims Division of the Local Court the plaintiff has abandoned certain aspects of its claim, in particular, the amount of $729.44 which were expenses associated with earlier court proceedings together with the sum of $3,417.52 being expenses accrued above the amount of $10,000. 4Levies have been paid and the dispute is one that relates to the entitlement of the plaintiff to recover section 80 expenses. 5Ms Khalil disputes liability for the claim on the following grounds: (i)that the plaintiff failed to serve levy notices on the correct address during the period of 1 February 2012 and 1 May 2012 including the raising of special levies in this period. (ii)that in April 2012 an agreement was reached between Ms Khalil and Mr Greenaway an employee of the debt recovery agent for the plaintiff whereby Ms Khalil could pay outstanding contributions over three monthly instalments and expenses and interest would be waived. (iii)that her strata account was not overdue and the decision by the plaintiff to commence legal proceedings was unreasonable in the circumstances. 6Before dealing with the substantive issues it is necessary to note the history of litigation between the parties. The plaintiff previously issued proceedings against Ms Khalil in proceedings 2012/185105. Those proceedings were commenced on 8 June 2012. The statement of claim in those proceedings sought payment in the sum of $3,628.94 in respect to levies due between 1 August 2011 to 31 May 2012, together with interest in the sum of $3.97, filing and service fees in the sum of $144.00 and professional costs in the sum of $385.44. The total amount claimed was $4,162.35. 7No defence was filed; no acknowledgement of the claim was filed by Ms Khalil. There is no evidence that the statement of claim was served upon Ms Khalil. Ms Khalil made three payments on 8 June 2012, 12 July 2012 and on 1 August 2012. The plaintiff appropriated those payments towards the amount of the claim. No further steps were taken in the proceedings by the plaintiff to obtain a judgment. The proceedings were dismissed by the Registrar on 28 April 2013 due to inactivity on the claim pursuant to UCPR 12.9. 8I will return to the relevance of these earlier proceedings later in this judgment.