The Owners – Strata Plan No 87812 v Thomson [2019] NSWCATCD 38

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: The Owners – Strata Plan No 87812 v Thomson [2019] NSWCATCD 38 Hearing dates: 26 February 2019 Date of orders: 01 May 2019 Decision date: 01 May 2019 Jurisdiction: Consumer and Commercial Division Before: J A Ringrose, General Member Decision: 1. The respondent, Francine Marie Thomson is to pay the applicant, The Owners – Strata Plan No 87812 a penalty of six Penalty Units namely the sum $660.00 within 30 days of the date of these orders.

2. Each party is to bear their own costs. Catchwords: Whether the respondent has breached both By-laws 9 and 16 – whether the evidence is sufficient to disclose all breaches alleged or whether only some breaches have been made out – whether a penalty for a breach of each By-law should be imposed rather than a penalty for the particular actions which may constitute a breach of one or both By-laws. Legislation Cited: Civil And Administrative Tribunal Act 2013 Strata Schemes Management Act 2015 s147 Cases Cited: The Owners-Strata Plan 82306 v Anderson [20017] NSWCATCD 85 Category: Principal judgment Parties: The Owners - Strata Plan No 87812 (Applicant) Francine Marie Thomson (Respondent) Representation: Ms H Amanatiadis (Applicant) Respondent (self-represented)

Solicitors: JS Mueller & Co (Applicant) File Number(s): SC 18/48105 Publication restriction: Nil

reasons for decision

Application 1. By an application filed on 8 November 2018 the Owners Strata Plan 87812 through their Strata Manager Key Strata Management sought orders pursuant to section 147 of the Strata Schemes Management Act 2015 that the Tribunal order that the respondent pay a monetary penalty of 10 penalty units for each breach of each By-law making a total of 20 Penalty Units. 2. It was noted that the model By-laws were adopted when the Strata Plan was registered in January 2013. In late 2017 complaints were made by owners in regard to rubbish being carried through the foyer in leaky bags and it was further claimed that in early 2018 further complaints were received from owners concerning vandalism and rubbish being left on the common property. 3. Modifications were made to the bin bay area in May and June of 2018 the old access way to the bins was locked off and a new bin bay path was established. 4. It is alleged that the respondent was observed dumping rubbish in the bin bay area but not in the bins provided and that this breach of By-laws continued after the service of a Notice in accordance with section 147 of the Act. 5. The matter was initially listed before the Tribunal on 20 November 2018 when leave was granted to both parties to be legally represented and directions were made for the applicant to provide its documents by 18 December 2018 and the respondent to provide her documents in reply by 5 January 2019. 6. Directions as to specific documents required to be produced by the applicant were made and parties were advised that, as the applicant was seeking the imposition of a penalty, the onus would be on the applicant to prove the contravention of the By-laws by the respondent and that the rules of evidence would apply in the matter as it related to the imposition of a civil penalty. 7. The matter was listed again before the Tribunal on 6 February 2019 to enable the respondent to require documents to be produced under summons as Senior Member Charles had noted that some video or photographic evidence upon which the applicant proposed to relay had been redacted. 8. Material was provided by the applicants on 20 December 2018 with further evidence being provided on 4 February 2019. The documents required under the summons issued by the respondent were not provided until 15 February 2019 when orders were made for access. 9. Material was provided by the respondent on 4 February 2019.