Pamela Williamson v Owners Corporation Strata Plan 7348 [2015] NSWCATCD 65

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Pamela Williamson v Owners Corporation Strata Plan 7348 [2015] NSWCATCD 65 Hearing dates: 7 April 2015 Decision date: 06 May 2015 Jurisdiction: Consumer and Commercial Division Before: Geoffrey Meadows Senior Member Decision: 1. The election of the executive committee of Owners Corporation SP 7348 held at the Annual General Meeting on 25 June 2014 was invalid as a result of breaches of the SSM Act. 2. The appeal is otherwise dismissed Catchwords: Strata and Community Schemes - appeal from Adjudicator's order - order invalidating annual general meeting resolution - non-compliance with SSMA at AGM - s 153(2) discretion - whether there is a discretion in the circumstances Legislation Cited: Civil and Administrative Tribunal Act 2013 Strata and Community Schemes Act 1996 Category: Principal judgment Parties: Pamela Williamson (applicant); Owners Corporation Strata Plan 7348 (respondent) Representation: Solicitors:Sam Ingui, Solicitor—Applicants; Respondent represented by Ms Taouk (Strata Manager), Ms Tchouk and Ms Feeder File Number(s): SCS 15/04430 Publication restriction: Nil

REASONS FOR DECISION

Background 1. On 3 October 2014 the Ms Pamela Williamson (the Appellant) filed an application for an Adjudicator's order seeing three orders pursuant to s 38 of the Strata Schemes Management Act 1996 (the SSM Act): (1) Inference [sic] with use + enjoyment of common property; (2) Not holding meeting in accordance with the Act; (3) Failure to perform repairs with prior notice + consent. 1. Attached to the application was a 5-page document headed "Statement of Pamela Mary Williamson". At paragraph 2 of that document the Appellant sought additional orders: "Section 153 - to invalidate the appointment of office bearers to the Executive Committee (EC) following the Annual General Meeting in June 2014 (2014 AGM); Section 154 - to invalidate the actions of the owners at the 2014 AGM in denying the Applicant an opportunity to nominate herself onto the EC or as an office bearer; Section 156(1) - An order for the EC to provide information relating to the garden hose and padlocks in their possession, having been purchased by MS Daphne Feeder and reimbursed by the Owners corporation. I also seek a further order that the EC cease exclusive possession of all common property including the garden hose and padlocks." 1. A large bundle of documents was also attached to the application. In accordance with the usual (and mandatory) protocol, written submissions were sought from interested parties. The Owners Corporation provided a large bundle of documents attached to written submissions and two further written submissions on behalf of the Appellant were also provided. 2. On 2 January 2015 Adjudicator Simon Hennings dismissed the application for the reasons attached to the decision. In view of the submissions made by the appellant, it will be helpful in the discussion below to extract a portion of Adjudicator Hennings' reasons. At paragraphs 13 and 14 the Adjudicator wrote: "13 In this matter, I accept the respondent's submission that the majority of the Owners Corporation is content with only 2 people being on the Executive Committee and the majority at the meeting would still have elected Ms Daphne Freeder and Ms Nancy Tchou, even if the applicant had stood for election. I accept the Owners Corporation's submission that the failure to comply with the provisions of this Act did not adversely affect any person, and that compliance with the provisions of the Act would not have affected the result of the election. The applicant has failed to provide sufficient evidence to persuade me otherwise. I am not persuaded to make the order sought. "14 Additionally, the application pursuant to Section 154 of the Strata Schemes Management Act 1996 is dismissed as it is out of time. The Annual General Meeting was held on 25 June 2014. This application was lodged on 3 October 2014. Section 154(2) states that an application for an order under this section may not be made after 28 days after the date of the meeting at which the resolution was passed. The application is well out of time and dismissed. 1. On 20 January 2015 the Appellant filed this appeal application. Attached to that application was a letter from "Sam Ingui – Solicitor" which inter alia stated the following: "In view of the material that has already been filed before the Tribunal for Adjudicator Orders in file SCS 14/50061, I request that that material be consolidated into this matter to avoid it having to be refiled. In addition to appealing the decision of Adjudicator Hennings dated 2 January 2015 my client seeks orders for the enforcement of Executive committee (EC) obligations in Schedule 3 of the Strata Schemes Management Act 1996 (Act) in particular in relation to the breaches and failures of the EC to comply with the provisions of Party 2 clauses 6(1), 6(2), 693), 12, 14 and 16. In that respect my client seeks orders that the EC comply with their statutory duties and requirements." The letter goes on to make detailed and lengthy submissions in support of the appeal. 1. On 18 February 2015 both parties attended a directions hearing at which orders were made for the service of all documents on which the parties intended to rely at the hearing of the appeal. On the same date leave was granted to both parties to be legally represented. 2. On 27 February 2015 the Appellant, through her legal representative, Mr Ingui, requested three summons be issued, addressed to Ms Feeder and Ms Tchou (both current members of the executive committee) and to Relm Property Group Pty Ltd, the strata manager. The summonses addressed to Ms Feeder and Ms Tchou contained identical schedules, seeking: (1) Copies of all records, correspondence, emails, letters, documents, electronic communications and your files in relation to any Executive committee actions taken by you from 26 April 2014 to date. (2) All communications and other records held by you in relation to communication between you and your other Executive committee member, other owners of SP7348 and the Strata Manager – Relm Property Group Pty Ltd from 26 April 2014 to date. (3) All quotes, records and documents relating to construction work and repairs at SP7348 from 26 April 2014 to date." 1. Those summonses were returnable on 25 March 2015. Senior Member Cohen made orders for access to the documents produced, in each case giving the Appellant seven days access from 25 March 2015, and the respondent seven days access from 1 April 2015. I note that the Registry had forwarded Notices of Hearing to the parties on 2 March 2015, setting the appeal down for hearing on 7 April 2014. The result of the orders made by Senior Member Cohen was that the respondent could not obtain access until Wednesday 1 April 2015, allowing just two business days to consider the documents, as Good Friday fell on 3 April 2015, Easter Monday on 6 April 2015 and the hearing itself on 7 April 2015. 2. On 30 March 2015 Mr Ingui for the Appellant wrote to the Tribunal asserting that Mesdames Feeder, Tchou and Taouk had not properly complied with the summonses, and seeking that the return of summons could be relisted, noting that "[i]n view of the time I am prepared to delay the relisting until the morning of the hearing on 7 April 2015". 3. The parties to whom the summonses were addressed wrote to the Registry within a day or so, asserting that they had properly complied with the summonses. Further discussion relating to the summonses will be referred to below. 4. Practically from the filing of this appeal application, the respondent has sought an adjournment of the various hearings and the timetable for the service of evidence. In each case, the basis for the request related to the intention of the Owners Corporation to obtain legal representation although the persons representing the respondent also claimed other commitments in seeking to have the initial directions hearing adjourned until 1 May 2015. These requests were maintained right up to 2 April 2015, and were consistently refused; the hearing remained listed on 7 April 2015. 5. On at least two occasions, the applicant wrote to the Tribunal seeking to refine and confirm the orders being sought. 6. On 31 March 2015, Mr Ingui wrote to the Registry, as follows: I refer to the Application for Tribunal Orders that have been filed in this matter dated 19 January 2015. In order to make clear the nature of the orders being sought I confirm the following: 1. The Applicant seeks an order pursuant to section 153(1) of the Strata Schemes Management Act 1996 (SSMA) invalidating the election held by persons present at a meeting of the Owners Corporation on 25 June 2014 on the grounds that the provisions of clause 2(6) in Schedule 3 of the SSMA and regulations 17 and 18 of the Strata Schemes Management Regulations (2010) (Regulations) were not complied with by the Owners Corporation. 2. The Applicant also seeks a further order pursuant to section 153(1) of the SSMA invalidating the purported election held by persons present at a meeting on 23 March 2015 on the grounds that the provisions of clause 6 in Schedule 3 for the convening of the meeting were not complied with by the Executive Committee of the Owners Corporation. 3. The Applicant reserves her rights in relation to seeking an order under section 154(1) of the SSMA in relation to the resolutions passed at the purported general meeting of the Owners Corporation on 23 March 2015. 4. The Applicant also seeks an order under section 138(1) in relation to the dispute or complaint about the failure by the Owners Corporation to exercise a function conferred or imposed by or under the SSMA in relation to the Owners Corporation. 5. The Applicant does not seek orders pursuant to section 156. 6. The Applicant considers that the purported meeting held on 23 March 2015 was a flawed attempt to rectify the breaches by the Owners Corporation at the meeting on 25 June 2014. She now seeks further orders ancillary to and in addition to those sought under section 153(1) of the SSMA sought before the Adjudicator. 7. The Applicant otherwise reserves her rights in relation to the Application. 1. On the date of the hearing, 7 April 2015, the applicant handed to the Tribunal the following letter: Application for Orders The Applicant seeks the following orders: 1 An order invalidating the election of the executive committee of Owners Corporation SP 7348 held at the Annual General Meeting on 25 June 2014 as a result of breaches a. clauses 2(6) of Schedule 3 and b. 34(f) Schedule 2 of the Strata Schemes Management Act 1996 (Act) and c. Regulations 17 and 18 of the Act's regulations. 2 An order invalidating the purported general meeting of Owners Corporation SP 7348 held on 23 March 2015 as a result of breaches to clause 6 and 10 of Schedule 3. 3 An order that a general meeting be held of Owners Corporation SP 7348 within 7 days for nominations to be called to join the Executive Committee. 4 An order treating as a nullity the resolutions passed at the general meeting of Owners Corporation SP 7348 on 23 March 2015 pursuant to Section 154(1). 1. Then, on 13 April 2015, the appellant wrote again to the Tribunal, annexing the letter of 31 March 2015 and 7 April 2015 and advising: "I refer to the Application for Orders (Application) document that was filed by me on 7 April 2015, a copy of which is enclosed. The Application should be read in conjunction with the letter that I sent on 31 March 2015. A copy of this letter is also attached. The Orders that I seek for the Applicant in the Application are in relation to each relevant legislative provision so that 1. The Order being sought under paragraph 1 of the Application is pursuant to section 153(1) of the Strata Schemes Management Act 1996 (Act); 2. The Order being sought under paragraph 2 is pursuant to section 154(1) of the Act and 3. The Order being sought under paragraph 3 is pursuant to section 138 of the Act. I note that in the letter that I sent dated 31 March 2015 sought orders under these relevant provisions and I also sought those orders from you in my verbal submissions at the hearing of this matter on 7 April." 1. I have determined this appeal on the basis of the orders sought on 07 April 2015 including the references to the relevant sections of the SSM Act.