Australia, Sept. 6 -- New South Wales Land and Environment Court issued text of the following judgement on Aug. 5:

1. This is an appeal arising out of the decision of Senior Member G Ellis SC in the Consumer and Commercial Division, which was given on 19 February 2025, in which he dismissed an application of the applicant (Ms Musumeci), who is the appellant, against the first respondent, the owners corporation, and the second and third respondents, Mary Buckley and Christopher Farncomb, seeking an order for the appointment of a compulsory strata managing agent under s 237 of the Strata Schemes Management Act 2015 (NSW) (SSM Act).

The background

2. The background to these proceedings is that Ms Musumeci, together with the two natural persons who are respondents, are owners, together with two other owners, in a five lot strata scheme at Forster. Disputes have arisen between Ms Musumeci and the other owners as to the proper administration of the strata scheme.

The proceedings in the Consumer and Commercial Division

3. On 7 April 2024, Ms Musumeci, as the applicant, commenced proceedings 2024/00289553 against the owners corporation which she named as The Owners Corporation - SP11583, Mary Buckley, Caroline Croft and Christopher Farncomb in the Consumer and Commercial Division.

4. On a date that does not appear in the evidence, the Tribunal dismissed an application for interim orders by Ms Musumeci. In the context of that interim application, Ms Musumeci relied upon her affidavit of 20 August 2024.

5. On 13 September 2024, the Tribunal, constituted by Senior Member D Robertson, made procedural directions for the hearing of the matter and relevantly required Ms Musumeci to lodge and serve points of claim, and the documents on which she intended to rely at the hearing of the substantive matter.

6. On 23 October 2024, Senior Member G Ellis SC made procedural directions extending the time for compliance with the orders made on 13 September 2024.

7. Ms Musumeci lodged documents in support of her application on 1 November 2024 comprising 50 pages. In those pages were her points of claim and her affidavit of 20 August 2024 excluding the annexures. As will be seen, that material was before Senior Member Ellis who heard the case.

8. On 11 February 2025, the hearing took place before Senior Member Ellis and he delivered his decision on 19 February 2025. In that decision the Senior Member, relevantly:

1) in paras 1 and 2, set out his outline of the proceedings, being an application under s 237 of the SSM Act;

2) in para 3, dealt with the history of the proceedings, including the rejection of the interim application on 13 September 2024;

3) in para 4, found he had jurisdiction;

4) in paras 4 to 9, dealt with the hearing;

5) in paras 10 to 12, set out the documents received into evidence;

6) in paras 13 to 18, described the cross-examination that took place;

7) in paras 19 to 23, set out the submissions of Ms Musumeci, the submissions of the owners corporation and Ms Buckley, and the submissions in reply of Ms Musumeci;

8) in paras 24 to 30, set out the law;

9) in paras 31 to 46, dealt with the submissions made by the parties and in particular Ms Musumeci. In para 32, he set out the seven matters in the points of claim which Ms Musumeci had raised and in paras 33 to 43 dealt with those matters. In para 44, he found that neither individually or collectively did they show that the scheme was not functioning or not functioning satisfactorily, and found that there had not been any failure to repair and maintain the common property, and therefore, in para 46, there was no basis for an order for the appointment of a strata managing agent;

10) in paras 47 and 48, found that Ms Musumeci had not provided evidence required under s 237(4) and (5) of the SSM Act, being a consent letter from the proposed strata managing agent, the licensed details for that agent and a copy of the proposed terms and conditions;

11) in paras 49 to 54, dealt with matters in terms of estoppel, which do not arise in this appeal;

12) in para 55, set out his orders dismissing the application.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19873641da539b9c875a1e66)

Disclaimer: Curated by HT Syndication.