Chua v The Owners - Strata Plan No 40301

Error of law - onus of proof 8It is convenient to deal first with the suggestion that either the magistrate or the primary judge misapplied the burden of proof by imposing on the applicant (the defendant in the proceedings in the Local Court) the burden of establishing that the notice had not in fact been posted. 9That was not the approach taken by the magistrate, who said in his reasons of 24 April 2013 that "the onus rests upon the plaintiff on the balance of probabilities, to satisfy the [court] that the notices were properly sent." It is also not a complaint which can be laid against the primary judge, who said that the strata manager was required to prove not that the lot owner in fact received such a notice, but rather simply to prove service: at [6]. 10In a paragraph setting out the considerations for and against the finding that the notice was indeed posted, the primary judge identified the sixth point as being that, "apart from that evidence from Mr Chen, there was no evidence that the notice was not sent": at [13]. This was a statement as to the state of the evidence; it did not purport to express a finding. It did not apply, let alone reverse, the onus of proof.

Error of law - inadequate reasons 11The second and related ground alleged that the evidence which was relied upon by the owners' corporation to prove posting was the evidence of Mr Howard. Mr Howard described himself in his affidavit as "Strata Manager" but, perhaps more accurately, was the person in charge of the relevant activities within the office of the strata managing agent appointed by the owners' corporation. 12The complaint about Mr Howard's evidence, which was accepted by the primary judge, related to the manner in which the magistrate had dealt with his cross-examination. The primary judge concluded at [30] that "the attack on Mr Howard's credibility was not unreasonable" and that the magistrate had failed properly to deal with the challenges to Mr Howard's evidence in his reasons. That omission meant that he had not given adequate reasons for his conclusion that Mr Howard's evidence should be accepted. The magistrate had therefore erred in law. 13It is not necessary for present purposes to determine the precise basis upon which the criticism of the magistrate's reasons was made. In fact, in his decision, the magistrate set out in some detail the cross-examination which was directed to Mr Howard's evidence, before coming to a quite limited finding. The limited finding, as already noted, was that he accepted Mr Howard's evidence that the notice was "probably sent by post to unit 55." The magistrate's finding in that respect was criticised by the judge as being not strictly accurate. What, in fact, Mr Howard said in his evidence was that the firm for which he acted had a system or practice in dealing with notices to be sent to unit holders in respect of levies and other matters of which they needed to be notified. 14The suggestion that the finding in respect of that evidence was in some way qualified by the cross-examination was denied by the primary judge himself. Whether there was any inadequacy in his reasons in this respect is to be doubted, but was not challenged on this application and need not be pursued. The area of concern was peripheral to the substantive question, as the primary judge held.

Error of law - no evidence ground 15 The substantive question - although not in the terms that it was put by the applicant in submissions or in the draft notice of appeal, but rather as it should have been put to raise an issue of law - was whether there was evidence capable of providing support for the conclusion that the applicant had been served. 16That there was such evidence seems to be indisputable, but the challenge seems to have been premised on the view that Mr Howard's evidence was worthless. The judge set out a number of issues that arose with respect to the finding made by the magistrate that the notice was probably posted: at [13]. First, he said that "Mr Howard did not in terms say that the notice was probably posted." No doubt that was true; it was an inference to be drawn from what he did say. Secondly, the judge said, "no one was called to say that he or she saw the notices posted." That is hardly a criticism of Mr Howard's evidence. Thirdly, he said that the magistrate "made no attempt to deal with the limits of the evidence that was given." That critique can be put to one side for present purposes. The primary judge continued that "despite the foregoing, there was a deal of material both in the form of unchallenged evidence from Mr Howard and common experience supporting the conclusion that the notices were sent to the Plaintiff by post." As noted above, the only affirmative evidence against posting was that the applicant said he did not get the notice, which was understandable if indeed it was sent to unit 55, which he did not occupy. 17In short, the challenge to Mr Howard was limited. That was clearly correct. The evidence of a system was unchallenged, as was the evidence that at least two unit holders had received the notices in question. 18The suggestion that the judge was wrong to say that certain evidence was "unchallenged" came to be the heart of this aspect of the applicant's case. However, the challenge was on the basis that, in substance, Mr Howard had overstated his role in the matter, and that some of the things which he had suggested he did himself, at least by checking what others did, did not in fact occur, and that what was done was done by his assistant. 19In cross-examination, he agreed that various steps had been taken either by him or his administrative staff or simply by his administrative staff: Tcpt, 08/02/13, p 17. The suggestion that that concession undermined Mr Howard's evidence in some way which cast doubt upon the existence of the system he described was not reasonably available. The evidence of system was not significantly challenged. 20There being evidence which would support the finding of the magistrate that the notice had been sent by post, the finding was a question of fact. There is no reason to suppose that there was not some evidence and it cannot be said that the evidence was undermined to the extent that it was not capable of supporting the finding. The primary judge did not so conclude, and there is no basis on this application to think that that negative finding would be overturned by this Court. It therefore follows that, there being evidence capable of providing support for the conclusion that the applicant had been served, there was no ground of law upon which the challenge could be maintained.

Conclusion 21In those circumstances, the decision that the applicant had been properly served with a notice and was therefore liable to payment of the levy was not a decision which could be reviewed by this Court on an appeal limited to a question of law. In my view, in those circumstances, the application for leave to appeal should be refused. The respondent's costs of the application should be paid by the applicant. 22MEAGHER JA: I agree with Basten JA.

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