The Owners - Strata Plan No 94916 v Kollco Holdings Pty Ltd [2019] NSWCATCD 16

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: The Owners - Strata Plan No 94916 v Kollco Holdings Pty Ltd [2019] NSWCATCD 16 Hearing dates: 21 February 2019 Date of orders: 21 February 2019 Decision date: 21 February 2019 Jurisdiction: Consumer and Commercial Division Before: S Thode, Senior Member Decision: 1. The respondent shall pay the applicant's costs of and incidental to both applications SC 18/50517 and SC 18/50514 on the ordinary basis as agreed or assessed. Catchwords: COSTS - costs when proceedings are settled Legislation Cited: Civil and Administrative Tribunal Act 2013 Strata Schemes (Freehold Development) Act 1973 Strata Schemes Management Act 2015 Cases Cited: Re Minister for Immigration & Ethnic Affairs (Cth); Ex Parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622; (1997) 143 ALR 1; (1997) 71 ALJR 533 (28 February 1997); Owner's Strata Plan 63094 v Council of the City of Sydney (2009) 165 LGERA 17; [2009] NSWSC 141; Owners Strata Plan 62327 v Vero [2009] NSWSC 908; Newcastle Wallsend Coal Co Pty Ltd v Industrial Relations Commission (NSW) (2006) 153 IR 386; [2006] NSWCA 129 Category: Costs Parties: The Owners – Strata Plan No 94916 (Applicant) Kollco Holdings Pty Ltd (Respondent) Representation: P Berrill Grace Lawyers (Applicant) J McEwan, Stacks Heard McEwan Lawyers (Respondent) File Number(s): SC 18/50517 & SC 18/50514 Publication restriction: Nil

REASONS FOR DECISION

Background 1. Proceedings SC 18/50517 were commenced on 22 November 2018. The Owners Corporation (the applicant) sought interim and substantive orders that Kollco Pty "as the developer" (the respondent) provide a series of documents to the applicant pursuant to section 17 of the Strata Schemes Management Act 2015 (the Act). 2. Section 16 and 17 of the Act relevantly prescribes: 16 Documents and records to be provided to owners corporation at first AGM (1) An original owner or lessor of a strata scheme required to convene a meeting under this Division must, not later than 48 hours before its first annual general meeting, deliver to the owners corporation the following: (a) all plans, specifications, occupation certificates or other certificates (other than certificates of title for lots), diagrams, depreciation schedules and other documents (including policies of insurance) relating to the parcel or any building on the parcel, (b) without limiting paragraph (a), all planning approvals, complying development certificates and related endorsed plans, approvals, "as built" drawings, compliance certificates (within the meaning of the Environmental Planning and Assessment Act 1979 ), fire safety certificates and warranties relating to the parcel or any building, plant or equipment on the parcel, (c) the certificate of title for the common property, the strata roll and any notices or other records relating to the strata scheme, (d) the initial maintenance schedule, (e) any interim report or final report of a building inspector prepared under Part 11 and relating to any building on the parcel, (f) any other document or item relating to the parcel or any building, plant or equipment on the parcel that is prescribed by the regulations for the purposes of this section. Maximum penalty: 100 penalty units. (2) An original owner or lessor is only required under this section to deliver to the owners corporation a thing if that thing is in the possession or control of the original owner or lessor or may be obtained by the original owner or lessor by taking reasonable steps to do so. (3) This section does not require an original owner or lessor to deliver to the owners corporation any documents that exclusively evidence rights or obligations of the original owner or lessor and that are not capable of being used for the benefit of the owners corporation or any of the other owners. 17 Tribunal may order initial documents to be provided The Tribunal may, on application by an owners corporation, order an original owner or lessor required to convene a meeting under this Division to provide to the owners corporation a thing that was required to be but was not delivered to the owners corporation in accordance with this Division. 1. Strata plan 93392 was registered on 19 June 2017. The respondent was required to deliver the documents set out in section 16 to the applicant not later than 48 hours before the first annual general meeting of the applicant: 2. The applicant submits that contrary to the requirements of section 16 the documents were not provided to it. The applicant was obliged to commence proceeding, filing two separate applications seeking substantive and interim orders for the urgent production of documents in time for the annual general meeting. The matter settled at the first return date and the respondent consented to the production of all outstanding documents. 3. The applicant seeks an order for costs of and incidental to the proceedings. 4. In submissions filed on 23 January 2019 in support of its application for costs, the legal representative of the applicant states the following: 5. On 10 August 2018 the strata manager for the applicant wrote to the respondent seeking production of the documents in accordance with section 16 of the Act. 6. On 21 August 2018 the strata manager for the applicant again wrote to the respondent informing the respondent that certain documents were not provided in time for the annual general meeting. 7. The applicant retained solicitors. Correspondence dated 16 November 2018 was sent to the respondent again seeking production of outstanding documents. The respondent was informed that unless production of all remaining documents was forthcoming by 23 November 2018, the applicant intended to commence legal proceedings and if necessary seek to recover any legal costs incurred. 8. On 29 November 2018 the Tribunal sent a Notice of Hearing and Directions hearing to the parties, the registered address of the respondent, informing the parties that the application for interim orders would be listed for hearing on 21 December 2018, and the application for substantive orders would be listed for directions. 9. The application form informed the respondent that the owners corporation had obtained advice from a building consultant advising the owners corporation of certain defects. The application form further informed the respondent that the time limitation period to initiate legal proceedings in relation to the defects would expire shortly. By reason of the impending time limitation period expiring the owners corporation urgently required the production of all documents. 10. At the hearing on 21 December 2018 both applications were resolved by consent. The parties agreed to the following orders: On or before 23 January 2019, the respondent is to produce to the applicant those documents identified in section 4 of the building specialist inspection report of Mr Sean Moore dated 18 December 2018 as having not been produced, subject to the qualifications on production set out in section 16(2) of the Strata schemes Management Act 2015. 2 Costs are reserved and the following timetable made: 2.1 the applicant to file and serve any submissions on costs by 8 January 2019; 2.2 the respondent to respond by 15 January 2019; and 2.3 the applicant to reply by 17 January 2019. 2.4 the parties have leave to file their submissions electronically.