JUDGMENT
1 HIS HONOUR: Buzrio Pty Ltd ("Buzrio") challenges the decisions of the Consumer, Trader & Tenancy Tribunal ("the Tribunal") appointing Axiom Property Consulting Pty Ltd ("Axiom") as strata manager for the Owners Corporation at 88-98 Marsden Street, Parramatta ("the Property") and seeks orders in the nature of certiorari, prohibition, declarations and other orders that seek to give effect to findings, for which Buzrio agitates, that the decisions were contrary to law, or made contrary to natural justice.
2 There are three decisions of the Tribunal that are the subject of challenge. The first was a decision of the Tribunal (Adjudicator Turley) of 23 May 2007 ("the first Tribunal decision"). This decision was purportedly for an appointment for a period of 12 months. On 8 June 2007, following a request by Axiom, the Tribunal extended the appointment period for a further 12 months.
3 The second decision of the Tribunal that is subject to challenge, is an interim order, purportedly pursuant to s 162 of the Strata Schemes Management Act 1996 ("the SSM Act"), made by an Adjudicator on 14 May 2009 ("the second Tribunal decision") and was operative until such time as the substantive application was determined. The substantive application, referred to here, was an application for a further appointment of Axiom as strata manager.
4 The third challenged decision was made on 15 June 2009 ("the third Tribunal decision") and purported, notwithstanding the terms of the earlier interim order, to extend the earlier interim order (to the extent that it required extension), made on 14 May 2009, until such time as the Tribunal determined the aforesaid substantive proceedings, which, by that time, had been referred from the Adjudicator to the Tribunal.
5 The principal of Buzrio, the developer, is Mr Jim Selim and Buzrio continues to hold units in the Property. Mr James Chan, the third defendant, also holds units in the Property. Mr Chan, notwithstanding his status as a defendant in the proceedings, did not appear in the proceedings and was not represented. The Tribunal submitted to any order of the Court, save as to an order for costs. Axiom and the Owners Corporation each appeared, through separate counsel, and opposed the making of any orders in relation to any one or all of the decisions of the Tribunal.
Facts
6 With the exception of essentially two matters, relating to notice of the proceedings that gave rise to the first Tribunal decision and the issue of credit, the facts are within narrow compass. As one would expect in an application for orders in the nature of prerogative writs, the issues of fact have been settled in the proceedings that are subject to challenge or are subject documentation, which is unchallenged and/or unchallengeable.
7 Buzrio purchased and developed the Property and commenced selling units in the Property in about 2003. The initial sales of units were sales "off-the-plan". Major construction at the Property concluded in about April 2004 and the Property was converted into strata title on or about 27 December 2005.
8 On 10 January 2006, the Owners Corporation appointed True Strata as the strata manager. By 31 August 2006, one third or more of the units in the Property had been sold and True Strata gave notice of an inaugural Annual General Meeting of the Owners Corporation. In accordance with that notice, the inaugural AGM was held on 21 September 2006, and it confirmed the appointment of True Strata as the strata manager of the Property. By letter dated 14 February 2007, True Strata gave notice that they would no longer be practising as a strata manager and tendered their resignation. It seems that resignation was tendered to each of the lot owners at the Property. At the same time as tendering their resignation, True Strata purported to call an extraordinary general meeting for 1 March 2007, the agenda for which was the acceptance of the termination of the services of True Strata and the appointment of another strata manager, nominated by True Strata.
9 On or about 23 February 2007, there was a meeting of Mr Chan, Ms Jenner Chan and Mr Paul Gonsior. At this time, Mr Chan was the secretary of the Owners Corporation. Mr Chan described this meeting as an Executive Committee meeting, although Mr Gonsior was, he says, unaware of its status as such. That purported Executive Committee meeting resolved that True Strata was not performing its duties and obligations, accepted the resignation of True Strata and purported to appoint Axiom as a temporary strata manager, at least until such time as a strata manager could be appointed by the Tribunal. The meeting also purported to appoint a solicitor to lodge an application to the Tribunal for the appointment of a strata manager and to make submissions in support thereof. Ms Jenner Chan was and is a director of Axiom and the licensee in charge of its strata management activities.
10 It is unnecessary for the Court to detail the disputes between the lot owners and the complaints about the management of the Property by True Strata, or the later complaints about Axiom. It is notorious that there are differences of interest between developers, who continue to hold units in a residential block, and the owners who have, generally, purchased units from them. None of the details of those complaints are relevant to the determination of the issues in these proceedings.
11 On 26 February 2007, Mr Chan wrote to the lot owners cancelling the Extraordinary General Meeting that had been called by True Strata. After a series of telephone conversations between Mr Gonsior and Mr Chan, Mr Gonsior called a meeting of the Executive Committee, by e-mail, purportedly with the authorisation of Mr Chan, and the Executive Committee purported to meet on the same day, 23 March 2007. During the course of the meeting, Mr Gonsior spoke to Mr Chan by telephone, during which conversation Mr Chan indicated that he was not interested in attending the meeting. On 26 March 2007, Mr Chan wrote to the members of the Executive Committee informing them that, contrary to the advice they had received, he had not authorised the calling of an Executive Committee meeting on 23 March 2007, or at all.
12 On the same day as the Executive meeting, 23 March 2007, Mr Chan lodged an application with the Tribunal for the appointment of a compulsory strata manager for the Property. On 29 March 2007, the Tribunal sent a letter to Mr Chan and to the Owners Corporation inviting submissions on the application lodged by Mr Chan. The evidence clearly indicates, and/or the only inference available, is that these were the only two notices, sent by the Tribunal, inviting submissions on the application of Mr Chan.
13 On 23 May 2007, the Tribunal made orders appointing Axiom as compulsory strata manager for the Property, for a period of 12 months (the first Tribunal decision). On 31 May 2007, Axiom wrote to the Tribunal requesting that the orders made on 23 May 2007 be amended. On 8 June 2007, the Tribunal amended the orders of 23 May 2007, the effect of which was to extend the period of compulsory strata management from 12 months to 2 years.
14 On 12 June 2007, Buzrio and other lot owners were advised for the first time that Axiom had been appointed compulsory strata manager of the Property. This advice came from Axiom. On 29 June 2007, Axiom sent the lot owners a copy of the orders made by the Tribunal on 23 May 2007.
15 On 26 July 2007, Buzrio lodged an application in the Tribunal seeking to have the first Tribunal decision set aside. There was some correspondence between some lot owners and the Tribunal complaining about the process for the appointment of Axiom. Axiom had fixed strata levies and, it seems, Buzrio had not paid the levies. Axiom commenced proceedings to recover the levies from Buzrio and there was correspondence between the parties.
16 On 31 March 2008, Buzrio lodged an application in the Tribunal for the revision of the strata levies that had been imposed by Axiom. On 8 April 2008, according to Buzrio, it learnt, for the first time, that Axiom's term as the compulsory strata manager had been extended to a term of two years. On 19 May 2008, Buzrio consented to the dismissal of its Tribunal application of 26 July 2007, referred to in [15] above. On 12 September 2008, the Tribunal dismissed Buzrio's application of 31 March 2008. There were further disputes between Buzrio and Axiom concerning unpaid levies. On 23 January 2009, Axiom obtained judgment against Buzrio for unpaid levies.
17 The proceedings in this Court were heard, initially, on 12 and 13 March 2009. During the course of those proceedings, Axiom produced in the Court an application by Mr Chan to the Tribunal, dated 12 March 2009 (Exhibit 3), being a substantive application for the reappointment of Axiom as the strata manager. Buzrio filed submissions in opposition to the application. Those submissions were filed on or about 21 April 2009. Axiom, Mr Chan, the Owners Corporation, and 56 lot owners also filed submissions to the Tribunal in relation to that application. On 14 May 2009, Buzrio, through its solicitors, fortuitously learnt that an application had been made for an interim order. On or about 15 May 2009, Buzrio's solicitors requested the Tribunal to allow Buzrio the opportunity to provide submissions and be heard in relation to the interim application. On the same day, the Tribunal informed them that the file had been closed and interim orders had already been made.
18 Buzrio's solicitor applied to have the substantive application, filed on 12 March 2009, referred from the Adjudicator to the Tribunal. The Adjudicator referred the matter to the Tribunal and, at the same time, made an interim order, or a further interim order, appointing Axiom as compulsory strata manager.
Notice of Proceedings and Evidence of Mr Chan
19 As earlier stated, there is little dispute as to the facts. The foregoing is relatively uncontroversial. Controversy exists as to the fairness and equity of levies and the confidence of either one or both of the strata managers. Those matters are not relevant to these proceedings. There is some controversy as to the notice given to lot owners of the application to the Tribunal for the appointment of a strata manager, and the notice given of the application, or correspondence, seeking to extend that appointment for a further 12 months. It seems that there is much, even on these issues, that is relatively uncontroverted. The controversy turns on the notice given, and the means by which that notice was given, and turns on the evidence of Mr Chan.
20 Buzrio adduced evidence that no notice was given of the application to appoint a strata manager, nor of the application for extension. Mr Chan gave evidence to the opposite effect, at least in part. It is necessary to make some comments on the demeanour of some of the witnesses.
21 Mr Gonsior gave evidence, called by Buzrio, largely concerning the meetings that were called and notices that were given. His demeanour, the manner in which he answered questions and the probability that those answers are correct, gave the impression that he was reliable, honest and truthful. It is clear that there were some occurrences that, at the time, he did not, because of his lack of guile, fully comprehend, but it seems that he now understands what was happening.
22 Buzrio also called Mr Noh, whose first language was not English. Mr Noh had an extremely good recollection of events, had, in relation to some of those events, made contemporaneous notes, and gave the impression of being very honest, very reliable and very detailed. Possibly because his first language was not English, Mr Noh was very precise in the answers that he gave and in seeking explanations of the questions that were asked. He attested to the lack of a noticeboard, anywhere on the Property, and I accept his evidence.
23 Axiom called its principal, Mrs Chan. Amongst other things, she testified that she was not aware that Mr Selim was the principal of Buzrio and was not aware of the names of any tenants. She could not recall an application to replace her firm as strata manager, could not recall the application by Buzrio to the Tribunal and could not recall whether Axiom opposed the application on the basis of the standing of Buzrio. Mrs Chan prevaricated in answering questions and gave evidence that I consider generally unbelievable.
24 Mr Knobel, called by Axiom, gave evidence with care and precision. He was very nervous, but truthful and, to the extent that he could recall, reliable.
25 Mr Chan gave evidence that he erected a noticeboard on the wall of the Property and placed a copy of the application on that noticeboard. This, he says, was done on the Tuesday, and he accepted that the noticeboard was not there by the Friday. The absence of the noticeboard shortly after the day upon which, he says, he erected it, was not a matter to which he referred in his affidavit. Mr Chan's evidence was that the noticeboard was erected by drilling holes into the wall. If that were to have been done, the wall would have been damaged and would have needed repair, or would still be in disrepair. There is no evidence to support the proposition that the wall has been repaired or that it is still damaged.
26 Axiom sought to support Mr Chan's evidence relating to the noticeboard by tendering a photograph of the alleged noticeboard. The photograph was poor quality and was a copy of the original. Mr Chan testified that the photograph had been taken with his mobile phone, the battery for which expired in 2007/2008, requiring Mr Chan to dispose of the phone. Apparently, according to Mr Chan, this photograph was printed from his mobile phone, coincidentally, before he disposed of it. This evidence was entirely fanciful. Moreover, if the photograph were taken for the purpose of proving that the noticeboard had been erected, it failed totally. The photograph was of the noticeboard alone, with no surrounding wall, so that it did not disclose that the notice board had been erected on the Property, or at all. I consider that Mr Chan gave evidence that he considered suited the case presented by Axiom and I do not accept his evidence, unless otherwise corroborated by independent acceptable evidence. I make clear that I also do not accept Mr Chan's evidence as to notice to lot owners of the original application and the excuse he gave for not serving the full application on each of them.
27 The effect of Mr Chan's actions was that he made the application in a personal capacity, received notice of the application as secretary of the Owners Corporation and kept from other lot owners the fact of the application and/or its contents.
Terms of the Tribunal's Orders
28 It is necessary to summarise the relevant parts of the orders made by the Tribunal, following the second and third Tribunal decision. Each was an interim order.
29 The interim order of 14 May 2009 was in the following terms:
"Pursuant to s 162(1)(a) and s 162(2)(a) the current strata managing agent, Axiom Property Consulting Pty Limited be appointed as strata managing agent to Owners Corporation SP 75633 from 24 May 2009 until such time as the substantive Application for an Order by an Adjudicator (SCS 09/12586) is determined."
30 The order of 15 June 2009 was in the following terms:
"1. On 12 June 2009, pursuant to s 164(1)(c) of the Strata Schemes Management Act 1996, the Adjudicator refers to the Tribunal, application SCS 09/12586, for hearing.