Gelle v Owners Corporation Strata Plan 55966 and Strata Plan 85816 [2015] NSWCATCD 100

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Gelle v Owners Corporation Strata Plan 55966 and Strata Plan 85816 [2015] NSWCATCD 100 Hearing dates: 14 April 2015 Decision date: 18 August 2015 Jurisdiction: Consumer and Commercial Division Before: P Boyce, Senior Member Decision: The decision of Adjudicator dated 11 November 2014 is affirmed. Catchwords: Orders to pursue an insurance claim; losses of a lot owner; disciplinary action against a strata manager rebuttal of special levies; amendment of owners ledger; supply of information about loan to owners corporation by strata manager; compensation to lot owner; pursuit of insurance claim; rescission of levies; inspection of records; right to bring application when lot owner in arrears of contributions levied and payable Legislation Cited: Civil and Administrative Tribunal Act 2013 Strata Schemes Management Act 1996 Category: Principal judgment Parties: Warren Douglas Gelle and Anna Sophie Gelle (applicants) Owners Corporation Strata Plan 55966 and SP 85816 (respondent) Representation: Applicants: Litigants in Person Respondents: Peter Woodbury-authorised agent File Number(s): SCS 14/58230 Publication restriction: Unrestricted

reasons for decision

Application 1. This is an appeal pursuant to s 177 of the Strata Schemes Management Act 1996 ("SSMA") against the order of a Strata Adjudicator. 2. The application is by lot owners appealing against an Adjudicator's decision in regard to their application for orders filed with the Tribunal on 12 May 2014. In that application they sought: (a) To pursuant to section 146 of the Strata Schemes Management Act 1996 (the SSMA") to compel the owners corporation to pursue an insurance claim for common property damage and recover the repair costs paid by the lot owners through special levies; (b) Pursuant to sections 138 and 147 of the SSMA, resolve disputes between the parties relating to failure to properly manage, including engaging in meaningful discussions with the applicant's, setting realistic budgets and levies, agreeing to court costs without obtaining proper legal advice, not maintaining accurate records, bias and collusion. (c) The applicant lot owner also sought orders that the strata managing agent was not properly appointed as strata manager under a current signed management agreement and that the owners corporation failed to properly obtain insurance as required under the SSMA for the common property of Strata Plan 55966 and 85816 and failed to maintain accurate minutes and financial statements. 1. Following the submissions of the applicant lot owners the orders sought in the adjudication expanded and the Adjudicator dealt with the lot owners' application as that seeking orders as follows: (a) An order that the owners corporation pursue an insurance claim; (b) Relief for losses sustained by Mr Warren Gelle for the period 3 August 2010 to September 2012; (c) An order for full particulars relating to the discontinuance of the claim in the District Court from Etienne Lawyers; (d) An order for disciplinary action against the strata manager; (e) Orders to rebut motion 2 (ii) of the Extraordinary General Meeting of 4 March 2013 for payment of settled amount of $50,000.00 and other motions and resolutions of the Extraordinary General Meetings held 4 March 2013 and 12 September 2013 for amounts of $35,000.00 to be raised by special levy to Steven Brown; (f) Order that the lot owner's ledgers be amended to account for the revocation of the resolution for the levies; (g) Orders for information in relation to the advance of payment by the strata managing agent; (h) Order for reimbursement of expenses of Mr Gelle for the failure of the respondent to repair lot 1 making it unfit for occupation; (i) Orders that the respondent seeks to agitate and settle an insurance claim for common property repairs; (j) Order that the respondent seek procurement of funds from a bona fide lending institution to satisfy the debts of the Owners Corporation once the debts have been ratified by a qualified accountant and pending settlement of the insurance claim; (k) That all levies in relation to court application against the applicant be rescinded; (l) Order for the replacement of the current insurance policy to a commercial strata insurance policy; (m) Access to inspect the records of the Owners Corporation. 1. The Adjudicator dismissed all orders sought in the lot owners' application for the reasons set out in her decision dated 11 November 2014. 2. The appellant lot owners filed their appeal against the Adjudicators decisions on 1 December 2014 on the grounds that the Adjudicators decision was: (a) Wrong at law and on the facts; (b) With further submission to follow. 1. On 2 December 2014 the appellants sought to amend their appeal by seeking "leave to appeal an order of (sic) lodged out of time".