IIB Australia Pty Ltd v Owners Strata Plan 76024

Procedural position in this Court

1. The decisions of Dakin LCM which are the subject of the Amended Summons were an interlocutory order made 19 November 2013 and a final order made 20 May 2014. The interlocutory order requires leave to appeal: s 40(2)(a), Local Court Act 2007 (NSW).
2. The time limit for Local Court appeals is 28 days: r 50.3, Uniform Civil Procedure Rules (NSW) ("UCPR"). IIB's Summons was filed in this Court well out of time in relation to both the Magistrate's interlocutory order of 19 November 2013 and his final order of 20 May 2014. Neither the Summons as filed nor the Amended Summons of 31 January 2015 seeks an extension of time, as is required by r 50.3(2). At the commencement of the final hearing of the Amended Summons on 3 July 2015 I gave leave for the extension of time to be applied for orally, with the consent of counsel for the Owners Corporation.
3. Rule 7.1(2)(a) permits a company such as IIB to "commence and carry on proceedings in any court by a solicitor or by a director of the company" but subr (3) imposes the limitation that in the Supreme Court a company may "commence proceedings by a director only if the director is also a plaintiff in the proceedings". The sole director of IIB is Mr Linden Dyason. Mr Dyason is not "also a plaintiff in the proceedings" and he is not a solicitor. Yet both the Summons and the Amended Summons purport to nominate the "legal representative" of IIB as "Plaintiff/Applicant's sole director". Mr Dyason's personal phone numbers and home address are given as the contact details and address for service. The proceedings have thus been commenced in contravention of r 7.1(3).
4. Section 14, Civil Procedure Act 2005 (NSW) confers upon the Court a power to "dispense with any requirement of rules of court if satisfied that it is appropriate to do so in the circumstances of the case". Under former Supreme Court Rules which were in terms closely similar to s 14 and r 7.1(3), Samuels JA doubted whether such limitations upon who may commence proceedings by a company can be characterised as "a requirement" which may be dispensed with under this section: Bay Marine Pty Ltd v Clayton Country Properties Pty Ltd (1986) 8 NSWLR 104 at p 111E. However it has been held by two Judges of this Court that the power under s 14 is applicable to r 7.1(3): Access Services Group Pty Ltd v McLoughlin [2006] NSWSC 532; (2006) 57 ACSR 725 at [11]-[14]; Mi-Ok Pty Ltd v The Owners of Strata Plan No 56059 [2006] NSWSC 573 at [20]; Connectland Pty Ltd v Porthaven Pty Ltd [2011] NSWSC 616 at [19].
5. When the proceedings were before Schmidt J on 19 November 2014 to determine a strike out application filed by the Owners Corporation, her Honour granted Mr Dyason leave to represent IIB for that interlocutory hearing but was not asked to make any order in relation to the defective commencement of the proceedings. Before me on 3 July 2015 counsel for the Owner's Corporation did not oppose the making of such a dispensation order and I indicated that I would do so.
6. In addition to instituting an appeal the Amended Summons claims "orders in the nature of certiorari setting aside and declaring void the orders of the Local Court". To the extent that s 69, Supreme Court Act 1970 (NSW) is invoked, Pt 59 UCPR applies. Rule 59.10 stipulates that such proceedings must be commenced within three months of the date of the decision. Neither the Summons filed 9 September 2014 nor the Amended Summons seeks extension of this time limit.
7. The Owners Corporation's motion to strike out the Summons, heard by Schmidt J on 19 November 2014, was advanced primarily upon the ground that the appeal was out of time and that the Summons did not include any application for an extension, as required by r 50.3(2). The Owners Corporation also submitted that IIB's appeal grounds, as originally formulated in the Summons, were "hopeless". Her Honour stated at [4] that "the difficulties with the claims advanced by IIB in [its] summons are apparent" but did not feel able to uphold the strike out application upon that basis. That was because IIB, through Mr Dyason, indicated that IIB wished to argue additional grounds on the final hearing. He said grounds of denial of nature justice and of failure to give reasons would be pursued.
8. Upon the basis that the additional claims foreshadowed were not manifestly unarguable or doomed to fail, Schmidt J concluded that the company should have an opportunity to amend and to be heard on an application for extension of time: IIB Australia Pty Ltd v Owners Strata Plan 76024 [2014] NSWSC 1835 at [27], [28], [31], [49]. In the event, the Amended Summons filed pursuant to her Honour's grant of leave has not alleged denial of natural justice or failure to give reasons, at all.
9. On the final hearing of the Amended Summons IIB did not press its claim for relief under s 69, Supreme Court Act (par 6 of the relief). That was prudent as IIB had nothing to gain from invoking this alternative. It had no better prospect of obtaining extension of the three month time limit for commencing review proceedings (Pt 59) than it had of obtaining extension of the 28 day limit within which to appeal or seek leave to appeal. Further, the grounds upon which IIB would rely in support of an order in the nature of certiorari were a subset of the grounds of appeal and if any of those grounds should succeed the relief which could be granted under s 41, Local Court Act would be ample for IIB's purposes. Relevantly to this case, the Court would have no wider power under s 69, Supreme Court Act.

The Local Court proceedings

1. The Owners Corporation is constituted in respect of a strata title property known as Peppers Salt Resort at Kingscliff on the northern New South Wales coast. IIB is the owner of Lot 119 in the Strata Plan. There are over 160 lots. By Statement of Claim filed in the Local Court on 21 March 2013 the Owners Corporation claimed against IIB unpaid instalments of administrative contribution (for recurrent expenses) and sinking contribution (for capital expenses and provisions). The sum claimed was $9,188.69. Instalments which had accumulated to that total had been levied on IIB in respect of the period 1 September 2012 to 31 May 2013.
2. The Owners Corporation also claimed interest on the unpaid amounts, pursuant to s 79, Strata Schemes Management Act, in the amount of $457.09. The third and final category of the Owners Corporation's claim was "recovery costs … incurred by [the Owners Corporation] in attempting to recover outstanding contributions" from IIB. The amount of this part of the claim was $12,989.29.
3. On 2 May 2013 IIB filed a defence which was primarily directed to disputing the reasonableness of the recovery costs component. The defence also asserted that "some funds" paid towards the administrative and sinking funds had been "fraudulently misappropriated". This was irrelevant to the claim, which was only concerned with unpaid contributions, not with the application or misapplication of paid contributions. In any event, by the time the proceedings commenced their first day of hearing before Dakin LCM on 24 September 2013, IIB had paid the administrative fund and sinking fund contributions. All that remained in issue was the claim for recovery costs. The small amount of interest had not been paid but nor was it actively disputed.
4. The Owners Corporation sought to recover its costs of the recovery proceedings "together with" the unpaid contributions. Those words are quoted from s 80, Strata Schemes Management Act as follows (emphasis added): "80(1) An owners corporation may recover as a debt a contribution not paid at the end of one month after it becomes due and payable, together with any interest payable and the expenses of the owners corporation incurred in recovering those amounts."
5. In order to follow the regime of this section, at the time of filing its Statement of Claim the Owners Corporation included as a component of its debt such legal costs and disbursements as it had incurred up to the date of filing. As the proceedings continued towards judgment the "expenses of the [Owners Corporation] incurred in recovering" the original debt increased and the claim escalated, correspondingly. This is what s 80 envisages and provides for, according to the judgments of Hodgson JA and Handley AJA in The Owners - Strata Plan No 36131 v Dimitriou [2009] NSWCA 27; (2009) 74 NSWLR 370 at [37], [46], [47] and [132].
6. At the hearing on 24 September 2013 the Owners Corporation relied upon two affidavits of Mr MJ Campbell, an experienced cost assessor. In his opinion the Corporation's reasonable recovery expenses, inclusive of fees charged by the strata management company and the assessor's own fees, were $70,509.78. This comprised $28,476.19 accrued up to 30 June 2013 (explained in his affidavit of 23 July 2013) plus $42,033.59 accrued from 12 July to 20 September 2013 (explained in Mr Campbell's affidavit of 23 September 2013). The latter included amounts for which the Owners Corporation was committed in respect of the hearing of 24 September 2013.
7. The proceedings were part heard on 24 September 2013 and adjourned to 19 November 2013. They occupied most of a full day on the second occasion. At the commencement of submissions on 19 November 2013 the Magistrate identified that the question he had to decide was whether the amount claimed for costs of recovery was reasonable, including whether the work done was reasonably required so that the costs thereof had been reasonably incurred and whether the amounts charged to the Owners Corporation had been reasonable (T 5). This was correct in principle: Dimitriou's case (supra) at [37] and [130]. From the outset his Honour expressed misgivings as to whether he was "equipped" to make a determination of the reasonableness of the costs of recovery (T 5).
8. During the parties' submissions on 19 November 2013 the Magistrate made clear that he was satisfied the Owners Corporation had necessarily incurred legal costs in pursuing IIB's unpaid contributions (T 38.10, 39.36, 49.32, 54.34). These costs encompassed all legal expenses of recovery to 24 September 2013 (T 55). The Owners Corporation was entitled also to have included the costs of the further hearing on 19 November 2013 (T 56).
9. Also in the course of submissions the Magistrate stated that he accepted the evidence of the expert witness, Mr Campbell, as "reliable evidence as far as it goes" (T 42.37). He considered Mr Campbell truthful (T 44.5, 46.6, 49.2, 54.34). However his Honour expressed a reservation about deciding the reasonableness of quantum on the basis of Mr Campbell's evidence because this witness had reviewed the costs as an expert for one side, not as an assessor taking into account any input from IIB as the relevant contradictor (T 42.36, 44.5, 49.4, 50.3, 54.35). The Magistrate noted that the total amount claimed for costs was high for a simple claim in debt of a small sum (T 42.36, 46.10, 49.6) - albeit that he found the manner in which Mr Dyason had defended the proceedings on behalf of the company had "driven up costs" (T 50.21, 50.49).
10. In Dimitriou's case (supra) it was held by majority that in a proceeding such as this it is open to a Magistrate to exercise the power under s 353(2) of the Legal Profession Act 2004 to refer the legal expenses of an owners corporation for assessment: per Hodgson JA at [48] and Handley AJA at [134]. In the course of argument the Magistrate expressed an inclination to follow this course (T 19.50, 38.21). He emphasised that his attraction to it stemmed from a reservation about acting upon the uncontradicted evidence of the Owners Corporation's expert and the Magistrate's doubts regarding his own expertise properly to assess the reasonableness of the costs in circumstances where the total appeared high (T 39.20, 43.17, 46.36, 54.39).
11. The Magistrate at the references given above very clearly explained to Mr Dyason, through exchanges directly with him, the rationale for the order for assessment which he was contemplating. He also stated that the alternative was that he should himself determine the amount of the Owners Corporation's reasonable costs as best he could on the uncontested evidence of Mr Campbell. It was obvious that this would likely lead to the Magistrate accepting the full figure claimed by the Owners Corporation and this was pointed out to Mr Dyason (T 44.49, 45.34-46.1, 47.16--48.3, 49.35-49.49).
12. Ultimately Mr Dyson said "I would welcome the opportunity of a third party appointed by the court, apparently, not by me" to assess the costs, in the expectation that each party could make submissions to the assessor (T 51.21 and 52.7). Counsel for the Owners Corporation produced a form of order to give effect to this. Mr Dyason disputed the terms of it in some insubstantial respects but ultimately it was made, as follows: "The interlocutory order of the Court is that: (1) The Defendant pay to the Plaintiff the amount of $457.09 as interest. (2) The Defendant pay to the Plaintiff the expenses reasonably incurred to be assessed by the Manager of Costs Assessment of the Supreme Court of New South Wales pursuant to s 80(1) of the Strata Schemes Management Act, 1998 No 138. The Court directs that: The Manager of Costs Assessment of the Supreme Court of New South Wales assess the Plaintiff's expenses (including legal costs) from 16 June 2011 until the date of assessment, pursuant to s 80(1) of the Act and the principles in the Owners - Strata Plan No 36131 v Dimitriou [2009] NSWCA 27."
13. The reasons, ultimately, for making this order were the various findings and considerations recorded on the transcript throughout 19 November 2013, as summarised above. They were encapsulated in a passage attributed to the Magistrate at T 54.27 to 54.41. The making of the orders is recorded at T 56.50.
14. Mr BW Bentley was appointed cost assessor. Amongst the materials which he took into account was a letter of 27 November 2013 from Mr Dyason on behalf of IIB which stated arguments to the effect that the Owners Corporation's costs were excessive. The assessor subsequently received further submissions, objections and materials from Mr Dyason. At the conclusion of the exercise the assessor produced a nineteen page report describing the documents and information he had taken into account, itemising amounts of costs that he had disallowed and stating his reasons. He issued two certificates on 17 April 2014, one for the "fair and reasonable amount of costs" to be paid to the Owners Corporation, being $65,633.51 (net of a small credit), and another for the costs of the assessment itself, being $1,540.
15. On 20 May 2014 the proceedings were re-listed before the Magistrate. Judgment was given for the Owners Corporation for $67,630.60 comprising the net total of the two assessment certificates plus the amount of $457.09 for interest (which had never been in contest).

Extension of time for appeal

1. Mr Allen for IIB has argued that in considering the extent of delay in bringing the appeal the Court should confine its consideration to the period from 20 May 2014 when the Magistrate's final order was made. He pointed out that following the 19 November 2014 interlocutory order IIB could only have applied for leave to appeal. Leave might well have been refused on the ground that IIB should await the outcome of the assessment, which might produce a figure which IIB could accept. He also submitted that as the interlocutory order led to an assessment which in due course produced a figure that was inserted, almost automatically, into the final judgment, he is entitled to raise all of the grounds upon which he would impugn the 19 November 2014 interlocutory decision by way of appeal as of right from the final judgment.
2. I accept these submissions. Hence the relevant delay which needs to be explained and, if seen fit, excused is the period from 28 days after the final orders of 20 May 2014 (ie from 17 June 2014) to the filing of the Summons. IIB has tendered no evidence on the final hearing to explain that delay. Before Schmidt J on 19 November 2014 evidence was tendered by the Owners Corporation to show that on 2 June 2014 IIB purported to commence an appeal in the District Court at Lismore. On the application of the Owners Corporation this was struck out as incompetent on 9 September 2014. The evidence before Schmidt J also showed that in early August 2014 the Owners Corporation had, in writing, pointed out to Mr Dyason the lack of jurisdiction in the District Court but he had ignored this.
3. Schmidt J (at [25]) evidently accepted that IIB's erroneous pursuit of an appeal to the District Court was the cause of the company filing its Summons four months late. It therefore cannot be said that the delay is completely unexplained.
4. IIB's counsel pressed his substantive arguments in support of the grounds of appeal in an endeavour to show a strong case of error on the part of the Magistrate, which might weigh in favour of extending time. Consequently, the Court heard full argument on the appeal grounds. As no additional delay or cost will be involved in deciding the appeal on its merits and as the Owners Corporation did not identify any specific or irremediable prejudice to itself as a result of time being extended, I will grant the extension and determine the appeal.

Relief claimed and grounds of appeal

1. In the course of argument IIB's counsel narrowed the relief claimed to the following (from p 2 of the Amended Summons): "(1) Leave to appeal … [and extension of time for commencing these proceedings]. (2) The Appeal be allowed. (3) Orders 1 and 2 made on 19 November 2013 by the Local Court at Tweed Heads be set aside. … (6) The orders made on 20 May 2014 by the Local Court at Tweed Heads be set aside and declared void. … (8) Costs."
2. The grounds set out in the Amended Summons were also reduced during the course of argument. The following grounds were maintained: "(1) The Local Court erred in making the orders of 19 November 2013, referring the matter to assessment pursuant to s 353(2) of the Legal Profession Act (the "Referral") by failing to complete the exercise of its jurisdiction to decide the controversy between the parties. (2) The Local Court erred in making the Referral by abrogating the requirement to deal with the argument that the costs claimed were disproportionate to the amount claimed by the Owners Corporation. (3) The Local Court erred in making the Referral by failing to determine the anterior question of whether the Owners had proven an entitlement to be paid costs and if there was an entitlement to be paid costs, what costs were to be assessed and paid. (4) … (5) The Local Court erred in referring the matter to Assessment once it had embarked on a determination of the controversy between the parties and deciding to order the Referral when the preliminary view was formed that the Owners Corporation had not made out or had difficulty proving its case. (6) The Local Court erred in making the orders of 19 November 2013 in the exercise of its discretion, if it existed, by not determining the matters raised in grounds 1 to 4. (7) If the orders made by the Local Court on 19 November 2013 are set aside the award made on Assessment and subsequent judgment are void or ought to be set aside."
3. Ground 1 does not identify any error, of law or otherwise, in the Magistrate's decision. The ground is itself founded upon a misconception of law. The majority in Dimitriou's case (supra) held that a Magistrate hearing a case such as that brought by the Owners Corporation has a discretion to exercise the power conferred by s 353(2), Legal Profession Act 2004 (NSW) to refer legal expenses for assessment: per Hodgson JA at [48], Handley AJA at [134]. The Magistrate was not obliged in law to "complete the exercise of [his] jurisdiction to decide the controversy between the parties" without making a reference under s 353(2). By referring quantum to be assessed and then completing his resolution of "the controversy between the parties" by giving judgment in an amount which included the assessed sum, Dakin LCM applied the law as settled in the Court of Appeal.
4. Under Ground 2 IIB asserts that as a matter of law a Magistrate must not allow to an owners corporation under s 80, Strata Schemes Management Act any recovery expenses to the extent that they are not "proportionate" to the other elements of the claim. That is, not proportionate to the unpaid contributions being recovered. There is no such legal principle. The majority in Dimitriou's case (supra) held that the measure of recovery expenses for which the defaulting lot holder may be held liable is so much as may be found to have been "reasonably incurred and reasonable in amount": Hodgson JA at [37], Handley AJA at [130].
5. It follows that there was no error of law in the Magistrate not "dealing with" IIB's argument that a test of proportionality had to be applied. The Magistrate clearly and rightly rejected the argument when he referred the recovery costs for assessment, in which procedure no proportionality limitation would be applied.
6. Ground 3 fails because it is directly contradicted by the record of the Local Court. The Magistrate did decide the "anterior question". He was satisfied that the Owners Corporation had proved it was entitled to significant legal costs. He determined that the reasonable quantum of those costs - reasonably incurred and reasonable in amount - was what needed to be referred under s 353(2) for assessment.
7. Ground 5 rests in part upon a false premise. The Magistrate did not form a "preliminary view … that the Owners Corporation had not made out, or had difficulty proving, its case". On the contrary, at the transcript references given in [20] and [21] above, he found that the Owners Corporation had adduced uncontroverted evidence of an acceptable expert to the effect that a sum of $70,509.58 of costs had been reasonably incurred. There was no error of law, measured against the authority of Dimitriou's case, in referring the assessment under s 353 after reaching this stage.
8. In argument on the appeal IIB's counsel acknowledged the authority of Dimitriou's case but submitted that the Magistrate's exercise of discretion to refer for assessment miscarried because he failed to take into account two considerations. The first was that the Owners Corporation chose to conduct the case by adducing evidence through Mr Campbell and had requested the Magistrate to decide quantum on that evidence rather than refer the matter for assessment. The second consideration was that the case had progressed to final submissions by the time the Magistrate made his interlocutory orders.
9. With due respect to Mr Allen, who tried his best to make something out of an impossible appeal commenced by his lay client apparently without legal advice, these propositions are unsustainable. An error in exercise of discretion in the sense explained in House v The King [1936] HCA 40; (1936) 55 CLR 499 at pp 504-5 has been recognised as an error of law for the purposes of a limited appeal right such as that under s 39, Local Court Act: Ceil Comfort Insulation Pty Ltd v Arm Equipment Finance Pty Ltd [2001] NSWSC 619 at [34], [35]; Comet Building Services Pty Ltd v Hy Tec Industries Pty Ltd [2008] NSWSC 11 at [16]. But the two considerations identified, accepting their relevance to the exercise of the discretion, cannot be said to have been overlooked and left out of account by the Magistrate. Both of them were at the centre of discussion between the Bench and the parties for most of 19 November 2013, at the end of which the Magistrate's orders were made.
10. As to the first consideration, at T 43.27 the Magistrate confirmed with counsel for the Owners Corporation that his position was that the Magistrate should himself assess the reasonableness of Mr Campbell's figures. The Magistrate nevertheless proceeded to make his order for referral, explicitly recognising that this was against the preferred course of the Owners Corporation. As to the second consideration, on 19 November 2013 the Magistrate adverted repeatedly to the fact that the case had run its full course and that if he were not to refer quantum for assessment then he would just have to do his best to evaluate Mr Campbell's evidence, unaided by competing evidence, effective cross examination or critical submissions. It could not be clearer that these two matters were taken into account.
11. Grounds 6 and 7 are consequential on the other grounds and therefore they also fail. There is no substance in the appeal, in any respect. It is now apparent that had IIB confined itself to the appeal grounds argued before me when the Owners Corporation's strike out application was heard in November 2014, instead of foreshadowing complaints about bias and lack of reasons (which did not materialise), it would likely then have appeared that the appeal was hopeless. The appeal as of right from the decision of 20 May 2014 fails on all grounds and there is no arguable error in the interlocutory decision of 19 November 2013 which could justify a grant of leave to appeal.
12. To the legal examination of the grounds as presented above I would add the observation that Dakin LCM's referral of the costs to assessment was an aspect of his scrupulous fairness to IIB, throughout. He was concerned about the substantial amount of costs attested to by Mr Campbell. He recognised that unreasonable conduct of Mr Dyason, amply demonstrated in correspondence, in court filings and on the transcript, had driven the costs up. Nevertheless he did not wish to see IIB held liable to pay any more than was reasonable.
13. The Magistrate appreciated that Mr Dyason had failed to lead any competing qualified opinion evidence regarding the amount of costs and that he had not been able to test Mr Campbell effectively in cross examination. Not feeling confident of his own expertise to identify any unjustifiable charges, the Magistrate took the course, approved by the Court of Appeal, which would subject the Owners Corporation's claim to skilled scrutiny.
14. I completely fail to understand how Mr Dyason, on behalf of his company, could have felt any legitimate sense of grievance about the conduct and disposition of the proceedings in the Local Court.
15. As the Amended Summons is to be dismissed there is no need to order removal of the Attorney General as a party (refer [3] above). The orders of the Court will be: 1. Order pursuant to s 14, Civil Procedure Act 2005 that the requirement of r 7 of the Uniform Civil Procedure Rules, that proceedings by a company be commenced by a solicitor or by a director who is also a party, be dispensed with in relation of these proceedings. 2. Order that the time limited by r 50.3(1)(c) for the bringing of an appeal under ss 39 and 40, Local Court Act 2007 be extended up to and including the filing of the Summons herein on 9 September 2014. 3. The Amended Summons filed 30 January 2015 is dismissed. 4. Order that the Plaintiff pay the costs of the First Defendant, the Second Defendant and the Attorney General of these proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 July 2015