Park Regis CTC Pty Ltd and Anor v The Owners – Strata Plan No 3397 [2017] NSWCATCD 66

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Park Regis CTC Pty Ltd and Anor v The Owners – Strata Plan No 3397 [2017] NSWCATCD 66 Hearing dates: 13 June 2017 Decision date: 23 August 2017 Jurisdiction: Consumer and Commercial Division Before: S.A. McDonald, Senior Member Decision: 1. Application dismissed. Catchwords: Civil and Administrative Tribunal (NSW) – strata schemes – special by‑law – interpretation of special by‑law – application of special by‑law to lift maintenance agreement – jurisdiction of Tribunal Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Limitation Act 1969 (NSW) Strata Schemes Management Act 2015 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Perpetual Trustee Company Limited v Albert and Rose Khoshaba [2006] NSWCA 41 The Owners of Strata Plan No. 3397 v Tate [2007] NSWCA 207 West v AGC (Advances) Ltd (1986) 5 NSWLR 610 Category: Principal judgment Parties: Park Regis CTC Pty Ltd (First Applicant) One Funds Management Ltd ACN 117 797 403 (Second Applicant) The Owners – Strata Plan No 3397 (Respondent) Representation: Peter Raymond Hudson, solicitor, of Hudson Law for the Applicant Gregory Sirtes SC with Tristan Bors of counsel for the Respondent File Number(s): SC 17/08819 Publication restriction: Unrestricted

Reasons for decision

Application 1. This is an application (Application) originally brought by Park Regis CTC Pty Ltd (First Applicant) against 'The Owners–Strata Plan No 3397' (Respondent) pursuant to various sections of the Strata Schemes Management Act 2015 (NSW) (Act). The correct identity of the body corporate and respondent for the purposes of the Application appears to be this depiction although there have been various other iterations in correspondence, submissions and in the Application itself – see s 8 of the Act. 2. The Act applies to all strata applications lodged in the Tribunal after 30 November 2016. This application was lodged on or about 17 February 2017 although it relates to events which occurred before that date. 3. The various sections of the Act under which relief is sought in the Application include, but are not limited to, ss 149, 150 and 232. 4. At the commencement of the hearing clarification was sought by the Tribunal and by the Respondent as to the precise relief that the First Applicant was seeking in the Application. The Application dated 16 February 2017 had become superseded both by correspondence between the parties and by the First Applicant's written submissions dated 13 June 2017 at the hearing. 5. The Application itself gave little indication of the precise relief that the Applicant sought, the basis for seeking it or whether the Tribunal may have jurisdiction to provide it. The Application, under the section titled '4A What Orders Do You Want', stated 'SEE ATTACHED' and then attached approximately 200 pages of copied material including strata invoices, a Court of Appeal decision, a lift maintenance agreement, invoices purportedly issued pursuant to that agreement, communications between the parties and details of a mediation of the parties at Fair Trading in February 2017. There was little or no commentary to link these documents or highlight issues although a letter dated 16 February 2017 from StayWell Hospitality Group to NSW Fair Trading which was in that bundle provided some focus and direction. 6. Also, at the commencement of the hearing the Respondent raised issues about the jurisdiction of the Tribunal to provide some of the relief which the First Applicant sought, the First Applicant's standing to seek the relief that it did and clarification around the precise relief to which the First Applicant – subject to jurisdiction and standing – may be entitled. 7. In order to guide these Reasons for Decision, and to understand the Application as it was finally made, I first extract the relief sought in the First Applicant's written submissions dated 13 June 2017 which were handed up at the commencement of the hearing and which encapsulated the First Applicant's final relief sought at the hearing, namely: 1. a declaration that the owner of Lot 1 of Strata Plan No 3397 has paid all costs payable pursuant to Special By-Law 21; 2. a declaration that the owner of Lot 1 of Strata Plan No 3397 was financial as at the date when the annual general meeting of Strata Plan No 3397 was held on 29 November 2016 and resolutions 16.1, 16.2A, 16.3A, 16.4, 16.5A and 16.6 the subject of that meeting were validly passed; 3. that the Respondent pay to the First Applicant an amount equivalent to 19.382% of the costs the Respondent paid pursuant to order 5 of the orders made by the New South Wales Court of Appeal in the New South Wales Court of Appeal Proceedings No. 40921 of 2005; 4. that Special By-Law 21 be repealed pursuant to s 149(1)(c) of the Act on the basis that it is unjust; 5. in the alternative to paragraph 4 above, Special By-Law 21 be amended in accordance with Schedule 1 to these submissions pursuant (sic) s 149(1)(c) of the Act on the basis that it is unjust; 6. that the Respondent pay the Applicant's costs of the proceedings. 1. At the commencement of the hearing, the Respondent sought to be heard on the relief as it was finally formulated by the First Applicant in its written submissions as well as on the issues of jurisdiction and standing. These issues, a consideration of which occupied approximately 1-2 hours of the Tribunal's hearing time that morning with submissions from the First Applicant's solicitor and the Respondent's senior counsel, led to the outcomes listed below which were either agreed between the parties or ordered by the Tribunal as the basis upon which the hearing of the Application would proceed. For good order, the Tribunal records below a summary of those outcomes: 1. As a result of the Respondent's assertions that the First Applicant did not have standing to pursue orders (1) and (2) because it had sold its interest in Lot 1 of Strata Plan No 3397 on or about 20 December 2016, leave was given to One Funds Management Ltd ACN 117 797 403, the current and subsequent registered proprietor of Lot 1, to join in the Application as Second Applicant (Second Applicant); 2. The order in (3) regarding payment of an amount of costs in the Court of Appeal was not pressed; 3. The order in (5) to the extent it seeks an order prescribing a change to Special By-Law 21 pursuant to s.149(1) of the Act in accordance with the form of by-law in Schedule 1 to the First Applicant's written submissions was objected to by the Respondent on the basis that first, no prior notice of this form of alternative by-law had been provided to it for today's hearing and secondly, there was no explanation of the methodology or calculation of the percentage figures used in paragraphs 21(2)(a) or 21(2)(b) of that alternative form of by-law. The Respondent claimed that it could not address these issues 'on the run' and during the hearing, and ultimately the First Applicant did not press this aspect of the relief. 4. The order in (5) to the extent that it seeks an order declaring Special By-Law 21 to be invalid because it was harsh, unconscionable or oppressive pursuant to s.150 of the Act, was not pressed. I say 'to the extent' because on its face the First Applicant's written submissions do not expressly address this issue although the Respondent's written submissions do (paras. 31-33), apparently as a result of this issue being raised by the First Applicant in correspondence between the parties. The parties ultimately agreed that neither the First Applicant nor Second Applicant had standing for such relief and it was not pressed. 1. In order to better understand the basis of the relief sought in the Application before the Tribunal, it is necessary to review some of the previous history of Special By‑Law 21 in the Court of Appeal.