Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Shi v Owners Corporation SP 44285 [2017] NSWCATAP 143 Hearing dates: 20 June 2017 Date of orders: 29 June 2017 Decision date: 29 June 2017 Jurisdiction: Appeal Panel Before: F Marks ADCJ, Principal Member S Thode, Senior Member Decision: (1) Leave to appeal refused. (2) The appeal is dismissed. Catchwords: Appeal – Strata application – applicant did not formulate claim – Tribunal unable to deal with claim because of lack of evidence – leave to appeal declined, appeal dismissed. Legislation Cited: Strata Schemes Management Act 2015 Category: Principal judgment Parties: Guo Qi Shi (Appellant) Owners Corporation SP 44285 (Respondent) Representation: Counsel: In Person (Appellant) A Pogossov (Respondent) File Number(s): AP 17/15678 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 24 March 2017 Before: C Paull, Senior Member File Number(s): SC 16/54321 reasons for decision Introduction 1. Mr Shi is one of the owners of a home unit in Auburn. On 8 December 2016 Mr Shi filed a Strata application in this Tribunal making a claim against the Owners Corporation. He did not set out in the application any details of the orders that he was asking the Tribunal to make. He named five sections of the Strata Schemes Management Act 2015 but did not say in any way how any of the sections was relevant to his claim. He did attach a letter which he said set out the reasons for the claim which he made. That letter dated 2 December 2016 referred to a number of matters. These were; 1. The fact that in 2013 the Owners Corporation had fixed a special levy of $1140 plus GST which we know from other material was payable in four instalments every three months. On 25 June 2014 the Body Corporate decided to reduce the levy by not asking for any payment of the fourth instalment due 1 July 2014. Mr Shi complained that he had already been asked to pay the fourth special levy in a notice dated 4 June 2014, and that that notice was never altered. As best we understand the letter it seems to imply that he has been wrongly charged for the fourth instalment and not given credit for it. 2. Mr Shi had been charged over $1000 for "Legal Recovery fees". He said that he had never received any documents or notices about any debt and the only documents he received were regular quarterly invoices from the strata manager. 3. Mr Shi had consulted a financial counsellor to help him deal with the strata manager employed by the Body Corporate and there had been a meeting on 12 January 2016. Despite promises made by the strata manager, its representative failed to give the financial counsellor or Mr Shi any information about payment of the fourth instalment of the special levy and requests for details of legal costs. 4. Mr Shi said that as a token of good faith he was paying $100 per month towards arrears claimed by the Owners Corporation until he could work out whether he owed any money. 5. He intended commencing proceedings in this Tribunal because of the failure of the strata manager to try to work out his issues with the Owners Corporation. He wanted a copy of his records so that he could know how much he owed, he wanted details of the legal fees and charges which the Owners Corporation had claimed and he wanted information to find out whether he had been charged for the fourth special levy. 1. Accordingly, it was necessary for the Member of this Tribunal to read this close typed three-page letter in order to understand what Mr Shi was claiming in his proceedings. 2. Attached to this letter were copies of correspondence from a financial counsellor employed by The Salvation Army to the then strata manager, Strata Management Solutions Pty Ltd. The first letter is dated 19 January 2016 and refers to the matters which have been summarised above and to a meeting which appears to have been held on 12 January 2016. The strata manager was asked to provide information concerning the matters raised so that they could be discussed with Mr Shi. The second letter dated 2 June 2016 indicates that despite repeated phone calls by the financial counsellor to the strata manager no response had been received to the original letter. This prompted a telephone call from the strata manager on 9 June 2016 who said that the accounts staff could not assist in working out the problem but that he would make a further phone call by 10 June 2016 to discuss the matter. No such phone call happened and a further letter of 3 August 2016 from the financial counsellor expressed regret that the strata manager had failed to respond or take part in any discussions. As will be seen, Mr Shi is very angry by what has happened, and in our opinion the failure of either the strata manager or the Owners Corporation to deal with Mr Shi's problems has made the matter and his anger much worse. The invoices given to Mr Shi 1. A number of invoices issued to Mr Shi by the Owners Corporation through the strata managers have been made available to us and were available to the Member who heard the case. The earliest is dated 6 November 2013. It shows a special levy due on 1 October 2013 of $1140 together with $114 GST making a total of $1254. The next invoice is dated 4 December 2013. It shows a balance carried forward of $1982.60, which may be assumed to represent arrears in the payment of levies. Apart from the arrears there are "levy recovery costs" of $20 and interest on arrears of $1.72. In addition, the special levy instalment due 1 January 2014 of $1140 together with GST of $116 are included making a total said to be due by 1 January 2014 of $3260.32. No invoices have been made available which show how the sum of $1254 due on 1 October 2013 becomes $1982.60 shown on the opening balance of the 4 December 2013 invoice. The difference does not equate with the ordinary levy of $590.98 which may have not been paid pursuant to an invoice which has not been produced. 2. The next invoice is dated 7 March 2014. It commences with a balance carried forward of $3307.40 which does not equate with the sum of $3260.32 shown as the amount due shown in the previous invoice. That invoice seeks the payment of $3863.97 by 1 April 2014 inclusive of interest on arrears and the special levy plus GST, and after allowing for payment of the sum of $710.68. 3. The next invoice is dated 4 June 2014. This shows a balance carried forward of $4664.20, which does not equate with the sum of $3863.97 said to be due and owing under the previous invoice. Again, the difference does not equate with an ordinary levy of $590.98. That invoice gives credit for payment of $712.70, but includes interest on arrears. It also includes the special levy instalment due 1 July 2014. Importantly, the total due and owing by 1 July 2014 is shown as $5228.40. 4. The final invoice held is dated 6 August 2014. The opening balance is shown as $4196.50, which is $1031.90 less than the balance shown on the previous invoice. The Owners Corporation through its secretary told us that this reduced amount represented credit given for the special levy payable on 1 July 2014. It did not equate exactly with the $1140 invoiced (assuming GST is not payable) because, probably, further interest was claimed. It is clear that there is credit given to Mr Shi of $1031.90 at about the time that the cancelled special levy was to be paid. This final invoice also includes interest on arrears of $40.55, the administration and sinking levy including GST totalling $810.69 and debt collector recovery fees totalling $1113.05. The total due and owing by 1 September 2014 was shown as $6160.79. Amounts paid by Mr Shi 1. There are a number of copies of receipts issued by Australia Post for the payment of strata levies through the DEFT payment system, the dates of some of which are obscure. There appear to be at least six of them each for the sum of $100 paid during the course of 2016 and one on 13 January 2017. Debt recovery information 1. There is a tax invoice issued by KempsPetersons, which appears to be a debt collection agent, for the period 1 to 3 August 2014 totalling $1050.06. The items contained on the invoice include reference to a service fee, preparation costs for Statement of Claim, court fee, search and bankruptcy investigation, various searches, and "prepare file for legal conversion……" Mr Shi said that he had never received any communication from these debt collection agents, nor had any court process ever been served on him. 2. A copy of an email communication from these debt collection agents to the Owners Corporation dated 14 November 2016 confirmed that instructions had been given by previous strata managers to recover a debt said to be due by Mr Shi on 1 August 2014, and that a statement of claim was prepared to be filed and was filed in the Local Court on 4 August 2016. The following day they received instructions to hold off further action on the matter because of a proposed change in strata management company. They closed their file on 3 September 2014. The Secretary of the Owners Corporation sent an email to the debt collection agents on 17 January 2017 saying that Mr Shi at that stage owed about $7000 and that Mr Shi had complained that their charges had been debited against his account although no legal action had taken place. The email went on to say that the Owners Corporation was "going to rekindle the debt collection" and asked whether they would "restart" the case under instructions from the new strata management company and committee. The decision under appeal 1. It is clear from the reasons for decision published by the Member that this was a very difficult matter to deal with because Mr Shi was unable to say clearly what he was claiming against the Owners Corporation. He had filed a short unsigned statement, but no documents were attached to it. He was allowed to produce documents at the hearing. 2. At first, Mr Shi told the Member that he wanted the Tribunal to order the Owners Corporation to produce a lot of documents. He continued to insist during the hearing that these documents be produced. He then said that he had been "overcharged" and that he wanted repayment of the amount overcharged. As best the Member was able to understand what Mr Shi wanted, it appeared to be for an amount "overcharged" of $3525.01, because of interest claimed by the Owners Corporation. He seemed to be saying that the interest had something to do with the special levy of 1 July 2014 which he said had been incorrectly charged. 3. Mr Shi could not say how he calculated the sum of $3525.01 which he says he has been overcharged. 4. Mr Shi also complained to the Member about the debt collection recovery costs which he had paid in February 2017 when he paid approximately $7000 to the Owners Corporation to pay off all of his debt then owing. However, Mr Shi could not say how much these fees were and why he should not have paid them. 5. The Member said that the Owners Corporation had given evidence about how the interest was calculated and had given details of the charges of the debt collection agents. 6. The Member said that Mr Shi had not given the Tribunal enough information to be able to say that he had been overcharged. Accordingly, the Member said that she was not satisfied that Mr Shi had established his claim and she dismissed it. The appeal 1. Mr Shi filed a notice of appeal and some documents. We have summarised those documents, and especially the invoices and the material about the debt collection agent. 2. Mr Shi had asked for and had with him at the appeal a Mandarin interpreter. Even though the interpreter was there, Mr Shi mostly preferred to talk with us directly and not through the interpreter. It seems to us that he was able to understand what we were saying to him. However, Mr Shi was clearly very angry with the way that he thought he had been treated by the Owners Corporation. He demanded that we order the Owners Corporation to produce all of his records and he accused the representative of the Owners Corporation and the Corporation itself of lying and of making false records. 3. Both of us individually tried to explain to Mr Shi in plain English that this Tribunal can only deal with the claims that he brings to it. We explained to him that if he wanted to get a complete copy of his financial records he was able to ask the Owners Corporation in writing to produce this to him, and if they did not he could then ask for an order that they do so. There was no evidence before us that he had ever made such a request and there was no claim made that such an order should be made by this Tribunal. We do not believe that Mr Shi did not understand what we were saying to him, especially as it was repeated through the interpreter. It is clear to us that Mr Shi was so angry that he was not interested in understanding that he had to make a particular claim before this Tribunal could deal with it. He persisted in continuing to state that the Owners Corporation was lying, was fabricating documents, and that he had been "overcharged." He refused to try and understand that he had been given credit of $1031.90 which we referred to in [7] above. 4. It is possible that Mr Shi may have been overcharged, and that the invoices issued by the Owners Corporation may be wrong. We have already referred to some details contained in the few invoices which we have that may show that some of the figures are wrong. However, it will be impossible, as the Member stated, and as we agree, to find out exactly how much Mr Shi has been overcharged, if he has been overcharged, without looking at all of the figures produced by the Owners Corporation and comparing them with all of the payments made by Mr Shi. Only then can someone work out whether there has been an overpayment by Mr Shi, and whether interest has been properly charged. 5. It is also not possible on the information which was given to the Member, and which was given to us to make any decision about whether the debt collection agency fees are properly payable by Mr Shi. To do this, it would be necessary to examine all of the accounting records, and any communications between the Owners Corporation and Mr Shi concerning debt recovery, and communications between the debt collection agency and Mr Shi concerning debt recovery. It is possible that some of the monies charged by the debt collection agency may not be payable by Mr Shi if they were not monies properly paid by the Owners Corporation for the recovery of any monies owed by Mr Shi. 6. We agree that Mr Shi did not give to the Member sufficient information for her to make any decision in his favour. We agree that because of this the Member had no alternative than to dismiss his application. 7. Because the decision of the Member was correct, it follows that there can be no appeal against it. The Member considered all of the information which Mr Shi gave her, and took it into account in making her decision. 8. We would add that by law unless Mr Shi can show that the Member made an error of law, he does not have an automatic right to bring this appeal. There have to be special reasons why we would allow him to appeal. There is no error of law in the decision of the Member. Also, there are no special reasons why Mr Shi should be allowed to appeal. We refuse leave to appeal and the appeal is dismissed. 9. We hope that Mr Shi will show this decision to a friend or a member of his family who can help him understand why his original claim was dismissed and why this appeal was dismissed. 10. We hope also that both Mr Shi and the Owners Corporation will understand that there may be difficulties in reconciling the accounts of the Owners Corporation, as was conceded during the hearing by the Secretary of the Owners Corporation. There may also be difficulties in the Owners Corporation proving that it was entitled to claim from Mr Shi all of the fees charged by the debt collection agency. If both parties act with common sense, it would be better to be able to reach some sensible settlement. This would be better than someone, probably a paid accountant, having to carefully read through all of the invoices and other accounts for the period commencing when Mr Shi first got behind in his levy payments until the date in February 2017 when he apparently paid off all his debt. A reconciliation of these accounts against all payments made by Mr Shi would not only take a long time and much trouble, but might also involve paying the accountant a lot of money. Sensible people try and settle their differences rather than having to pay an accountant to work out an amount which would probably be less than the fees charged by the accountant. We hope that both parties will give serious consideration to these observations. Orders We make the following orders 1. Leave to appeal is refused 2. The appeal is dismissed ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 June 2017