Helmut Haslinger v Owners Corporation SP 56568, Nancy Joffee [2014] NSWCATCD 126

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Helmut Haslinger v Owners Corporation SP 56568, Nancy Joffee [2014] NSWCATCD 126 Hearing dates: 17 December 2013 Decision date: 28 January 2014 Before: G Meadows, Senior Member Decision: The Owners Corporation of Strata Plan 56568 and Nancy Joffee permanently refrain from proposing, moving, calling for votes on or in any way seek to resolve motions in the form of Motions 2 to 5, and Motions 6 and 7 so far as they relate to such motions, as contained in the Notice of an Extraordinary General Meeting to be held on Wednesday 19 June 2013 included with this application as Annexure "A1" Catchwords: Debt, fraud on a minority, recovery action by Owners Corporation Legislation Cited: Strata Schemes Management Act 1996 Category: Principal judgment Parties: Helmut Haslinger (Applicant) File Number(s): SCS 13/32049

reasons for decision

APPLICATION 1This application was filed on 14 June 2013, together with an application for interim orders number SCS 13/32039. Both applications related to allegations by the applicant that the respondents, or more particularly, Ms Nancy Joffee, intended to implement a devious scheme by which she would, at an Extraordinary General Meeting, have passed a number of motions intended to ensure that Mr. Haslinger (and possible another or other owners) would be rendered unfinancial, after which Ms Joffee would be enabled to then seek a special by-law permitting her to undertake substantial construction in relation to her lot, including having the use of certain parts of the common property of the scheme. The impugned motions were as follows, as included in the agenda for an Extraordinary General Meeting held on 19 June 2013: " Motion 2 - THAT the owner of Lot 4 is to reimburse the Owners Corporation for all costs Incurred by the Owners Corporation in relation to the by-law proposed by Lot 4, which Is the subject of current proceedings In the Consumer, Trader and Tenancy Tribunal. These costs Include but are not limited to legal costs, survey costs, valuer costs and managing agents costs. The owner of Lot 4 is to reimburse the Owners Corporation these costs within seven days of demand by the Owners Corporation; falling which the Owners Corporation may recover such amounts as a debt from the owner of Lot 4. Motion 3 - THAT the owner of Lot 4 reimburse the Owners Corporation the amount of $32,402.60 within seven days of the date of the meeting at which this resolution is passed, such amount representing legal and survey costs in relation to the by-law proposed by Lot 4, which is the subject of current proceedings in the Consumer, Trader and Tenancy Tribunal. A copy of the tax invoices making up this amount Is an annexure to the notice of the meeting at which this resolution will be considered, If this amount is not paid within seven days the Owners Corporation May recover the amount as a debt from the owner of Lot 4. See attached Invoice. Motion 4 - THAT the owner of Lot 4 reimburse the Owners Corporation the amount of $72.60 representing the cost of issuing a Notice to Comply, such amount payable within seven days of the date of the meeting at which this resolution Is passed, failing which the Owners Corporation may recover the amount as a debt from the owner of Lot 4. See attached Invoice. Motion 5 - THAT the owner of Lot 3 reimburse the Owners Corporation the amount of $49.50 representing the cost of issuing a Notice. to Comply, such amount payable within seven days of the data of the meeting at which this resolution is passed, failing which the Owners Corporation may recover the amount as a debt from the owner of Lot 3. See attached Invoice. Motion 6 - THAT the managing agent is authorised and instructed to issue letters of demand on the owners of Lots 3 and 4 , as the case may be, demanding any amounts referred to in motions 3, 4 and 5, such a letter to be sent out within seven days of the date of the meeting at which these motions are passed. Motion 7 - THAT the managing agent is authorised and instructed to Issue letters of demand on the owners of Lot 4 demanding any amount referred to in motion 2, such a letter to be sent within seven days of the payment by the Owners Corporation of a tax invoice of costs referred to in motion 2. " 2On 18 June 2013, Adjudicator Vrabac made interim orders that the respondents were not to propose, move or call for votes on those motions at the EGM to be held on 19 June 2013 nor, in effect, to propose move or pass such motions or motions to a similar effect, at any other meeting, nor to hold the EGM on 19 June 2013, until the substantive application (being the current application) is determined or until further order. 3On 21 June 2013, the solicitors for Ms Joffee applied to have the interim orders revoked, on the grounds that they were ultra vires and other grounds. On 04 July 2013 I dismissed the application to revoke the interim orders, but I ordered they be varied to comply in form with the requirements of the Act. 4On 5 September 2013 the then solicitor for the applicant sought an extension of the interim orders for a further 3 months. This application was opposed by the solicitors for Ms Joffee and extensive submissions were exchanged. On 9 October 2013, another Adjudicator, Adjudicator Westgarth, ordered the interim orders were to remain in force for a further period of six months unless revoked, varied or otherwise set aside. Adjudicator Westgarth was also considering this substantive application for an Adjudicator's order, but on 22 October 2013, he ordered this application be transferred to the then Consumer, Trader and Tenancy Tribunal pursuant to s 164 of the Act, on the bases contained within his written reasons published on that date, for determination. 5This decision is that determination.