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[2011] NSWLC 3
Local Court of NSW
2011-02-02
Original judgment source is linked above.
Reasons for Decision 1These proceedings arise from an action commenced by the Owners' Corporation of Strata Plan 68523 seeking from the Defendant payment of unpaid strata levies in respect of Lot 21 (Unit 19, 24 Scott Street, Byron Bay) and Lot 22 (Unit 20, 24 Scott Street, Byron Bay), of which the Defendant is the registered proprietor. As a result of being put to the task of proceeding against the Defendant on a litigated basis, the Plaintiff also claims costs and interest pursuant to specialist provisions dealing with the administration of strata plans contained within the Strata Schemes Management Act 1996 (NSW), as distinct from the usual course of matters in this jurisdiction which ground applications for costs and interest in the Civil Procedure Act 2005 (NSW) and/or the Uniform Civil Procedure Rules 2005 (NSW). 2The Statement of Claim in this matter was filed on or about 18 June 2009 and, following a lengthy history of timetable and case management directions, the matter was ultimately set down for hearing on 2 February 2011.
Chronology 3On or about 18 June 2009, the Plaintiff issued a Statement of Claim seeking an amount of $33,297.66 for unpaid levies, interest and costs. Between June 2009 and November 2009, the Plaintiff made several attempts to locate the Defendant in order to effect service of the Statement of Claim on him. 4On or about 24 November 2009, the Plaintiff filed a Notice of Motion seeking an order that leave be granted to amend the Statement of Claim and that service of the Statement of Claim and Amended Statement of Claim be effected by substituted service on the Defendant's then solicitor. 5On or about 30 November 2009, the Court made orders granting leave to the Plaintiff to amend the Statement of Claim and for service of the Statement of Claim and Amended Statement of Claim to be effected by substituted service on the Defendant's then solicitor. 6On or about 11 March 2010, the Defendant filed a Defence and Cross-Claim. 7On or about 25 May 2010, the Plaintiff filed a Defence to the Cross-Claim. In what appears to be a coincidence, the Defendant filed, on the same day, a Notice of Motion for default judgment in relation to the Cross-Claim. 8On 26 May 2010, the Court listed the matter for an arbitration hearing on 13 August 2010. 9On or about 5 August 2010, the Plaintiff filed and served a further Amended Statement of Claim for unpaid levies, interest and costs liquidated in the amount of $57,542.61. 10On 13 August 2010, the Defendant failed to appear at the arbitration hearing. The arbitration order was revoked and the matter was placed back in the list for call-over on 15 September 2010. 11On or about 20 August 2010, the Plaintiff filed and served and Amended Defence to the Cross-Claim filed by the Defendant. 12On 15 September 2010, the Court listed the matter for final hearing on 2 February 2011 and made the standard directions in accordance with Practice Note 1 of 2005 - Case Management of Civil Proceedings (General Division) applicable in the Local Court and dealing with the requirement that each party serve upon all other parties copies of statements or affidavits of the evidence intended to be relied upon; that each party file a written summary of the case, including a reference to any relevant case law or statute; and that the Plaintiff prepare and file a Statement of Agreed Facts and Issues seven days prior to the date fixed for hearing. The standard directions made by the Court included a reference that where a written statement or affidavit of a witness is not been filed or served, evidence may not be admitted, unless the non-complying party satisfies the Court that it is in the interests of justice to do so; and failure to comply with the Court's directions may result in the Statement of Claim or Cross-Claim being dismissed, or the Defence being struck out, with costs. 13On or about 12 November 2010, the Defendant's then solicitor filed a Notice of Ceasing to Act. 14By 26 November 2010, the parties had served the evidence upon which they sought to rely at the hearing of this matter. I refer, later in this judgment, to the state of the Defendant's evidence. 15On or about 9 December 2010, the Defendant wrote to the Plaintiff's solicitor advising, inter alia, that the evidence served on him at his address for service of notices had been received but would be returned unopened. The Plaintiff contends that no evidence or mail has been returned to the Plaintiff's solicitor or the Plaintiff. 16On or about 28 January 2011, the Plaintiff caused to be forwarded to the Defendant the Plaintiff's Case Summary. 17The events which followed, and with which the Court is primarily concerned, are set out below in more detail.
Application by Defendant to vacate hearing date 18The first issue which I am required to determine is whether to grant leave to the Defendant, who did not appear, to vacate the hearing date of 2 February 2011. On that date, I refused the Defendant's application to vacate the hearing date and reserved my reasons, which I now set out below. 19By facsimile dated 31 January 2011, the Defendant forwarded to this Court a letter seeking an adjournment to regain his health following what he refers to as a "violent attack on [him] by Paul Waters, the de facto of Jan Straus" and who, it is understood, is a member of the Executive Committee of the Strata Plan in question. The Defendant explains in his facsimile his frustration that despite numerous requests for mediation "all [his] requests have gone unanswered" and concludes by requesting the Court to "instruct both parties to attend mediation to resolve this matter." In support of his application to vacate the hearing date, the Defendant attaches to his facsimile a letter from his treating doctor, Dr Emmanuel Proheraris, dated 31 January 2011 in the following terms: - "I understand that Mr Drury has to appear for a hearing before a Magistrate on 2/2/2011 at 9:30 am. He is my patient and has been suffering from chronic pain for which I am treating him. His symptoms have been exacerbated lately - after twice being physically attacked - and I would feel it would be beneficial for him to postpone this hearing if possible. I would greatly appreciate your assistance in this." 20Neither the Defendant's facsimile nor the supporting medical certificate attached thereto was forwarded to the Plaintiff or its legal representatives. In fact, it was not until the morning of the hearing that the existence of these documents, which were attached to the front of the Court file, was brought to the attention of the Plaintiff's solicitor. 21As expected, the Plaintiff strenuously opposed the Defendant's application to vacate the hearing date on a number of bases, including: - (a) the Defendant did not provide any notice, whether by way of service of the Defendant's same facsimile forwarded to the Court or by service of the supporting medical certificate attached thereto, and it was not until the morning of the hearing when the Plaintiff was made aware of the existence of these documents, which were attached to the front of the Court file; (b) the medical certificate, which the Defendant proffers in support of his application to vacate the hearing date, is vague, fails to provide pertinent details as to the nature of the alleged assault, when the Defendant may be in a position to attend a hearing trial of the issues in dispute, and whether or not he can travel; (c) the quantum of damages is escalating by the day; (d) one of the Plaintiff's principal witnesses, Mr Chad Duensing, the strata manager for the strata plan in question, had flown from Ballina to Sydney in anticipation of giving evidence at the hearing, thereby incurring considerable travel and accommodation costs; (e) the remaining registered proprietors of lots within the strata development would need to continue to subsidise the Defendant's non-payment of strata levies in circumstances where the administrative fund and sinking fund would be operating at insufficient levels to ensure that the Owners' Corporation met its financial obligations; (f) a Court-ordered arbitration, previously fixed for 13 August 2010, was also vacated on the application of the Defendant's then solicitor, via, initially, a letter sent by facsimile to the Court on 6 August 2011, in circumstances where the Defendant did not appear and the arbitrator was compelled to re-list the matter for mention; (g) apart from serving two one-page Statutory Declarations (one of which was later withdrawn by the declarant's solicitor) from a resident and an employee of the strata complex, respectively, the Defendant had made no real effort to defend the claim nor to prosecute his Cross-Claim. The content of the Defence is demonstrative of this fact and the evidence sought to be adduced by the one remaining Statutory Declaration, upon which the Defendant purportedly seeks to rely, is exiguous in its scope; (h) having regard to his failure to pay strata levies to the Owners' Corporation since about 2007, it is unlikely that the Defendant would comply with a costs order in favour of the Plaintiff, if the Court were to accede to his application to vacate the hearing date and order costs order against the Defendant; (i) for the reasons referred to, the prejudice to the Plaintiff is not capable of being cured merely by an order for costs in its favour; and (j) the Defendant was, according to the Affidavit of Mr Jeremy White sworn 2 February 2011 and tendered in response to the Defendant's application to vacate the hearing date, fit and able to attend Byron Bay Local Court for nearly a full day on 28 January 2011, some three days before the medical certificate was created, when he was brought before that Court for the offences of contravening an apprehended personal violence order for the protection of the manager of the strata complex, Mr Jeremy White, and carrying a cutting weapon upon apprehension. 22I accept the submissions proffered by the Plaintiff as to the prejudice it would suffer if I were to accede to the Defendant's request to vacate the hearing date. Having regard to the self-explanatory nature of the submissions, I do not consider it necessary to traverse each ground. I will, however, make the following comments. 23The medical certificate faxed by the Defendant to this Court on or about 31 January 2011 provides no evidence that the Defendant is incapacitated or unfit to attend Court for the hearing, rather, the doctor merely opines that "it would be beneficial for him to postpone this hearing if possible." In Magjarraj v Asteron Life Limited [2009] NSWSC 1433, Barrett J said at [22] - [23]: - "22All too frequently judges see cryptic written statements from medical practitioners referring to some undisclosed and undiagnosed "medical condition", culminating in the assertion that a person is unfit to attend court or unfit for a court hearing. To the extent that such statements are put forward as evidence about the state of the person's health and the extent to which impaired health may incapacitate a person from participating in court proceedings, the statements fail the most fundamental test for the reception of expert evidence. Bald unexplained and unfathomable statements of that kind must be simply rejected out of hand as evidence of anything. 23Doctors probably do not realise that they are engaging in an exercise in futility when they issue such certificates and expect courts to treat them as evidence if, indeed, that is what the doctors do expect. These are matters about which professional organisations within the medical profession really ought to consider informing their members." 24Whilst the medical certificate faxed to the Court by the Defendant makes reference to the affliction for which he is being treated, the certificate is deficient in apprising the reader of a number of crucial matters including: - (a) the precise physical injury allegedly sustained; (b)how that injury affects the Defendant's ability to travel to Court or to give evidence in Court; (c) when the Defendant will be in a position to attend Court for a hearing of the issues in dispute; and (d) whether the Defendant is fit enough to travel to some other location for his evidence to be given via some other means, for example, via audio-visual link. 25Further, the covering letter under which the medical certificate was faxed to this Court requests that the Court make a direction instructing both parties to attend mediation in an attempt to resolve the matter when, having regard to the history of this matter, the Defendant has had ample opportunity to explore mediation and the prospects of settlement. Mediation is something which either party may invoke by simply corresponding with the other and arranging a settlement conference without the intervention, in the sense of a formal order, of this Court. 26To use the words of Barrett J in Magjarraj at [28], "there is no rational explanation for the absence of the [Defendant]. There is no evidence that he is incapacitated by some medical condition or illness from attending." 27Section 56 of the Civil Procedure Act 2005 (NSW) provides as follows: - "56Overriding purpose (1)The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2)The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. (3)A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. (4)A solicitor or barrister must not, by his or her conduct, cause his or her client to be put in breach of the duty identified in subsection (3). (5)The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs." 28More relevantly, the Plaintiff's solicitor directed me to Practice Note 1 of 2005 - Case Management of Civil Proceedings (General Division) applicable in the Local Court which states: - "10.Vacation of Trial Date 10.1Any application to vacate a trial must be by Notice of Motion and must be made not less than 21 days prior to the allocated trial date. 10.2Applications to vacate a trial within 21 days of the trial date on the basis of unforeseen circumstances (for example on the ground of illness) must be made as soon as practicable and not later than the next working day after a party becomes aware of the unforeseen circumstances. If the trial is within 21 days the party seeking to vacate a trial should not wait to obtain the consent of the other party before approaching the Court." 29There is nothing on the Court file to indicate that the Defendant's application to vacate the hearing date was made by way of Notice of Motion. Moreover, assuming that he has been labouring under the illnesses, to which the medical certificate refers, for some time, he did not comply with the Practice Note by moving the Court as necessary or by giving any, or any adequate, notice to the Plaintiff. 30In the circumstances, and for the reasons given, I am of the view that the application to vacate the hearing date of 2 February 2011 should be refused, and I so order.
Application by Plaintiff/Cross-Defendant for leave to proceed on an ex parte basis 31Immediately following the refusal of the Defendant's application to vacate the hearing date on 2 February 2011, the Plaintiff made an oral application to proceed on an ex parte basis. I granted the Plaintiff's application, accepted the tender of various affidavits and submissions marked Exhibits 1 to 6 and reserved my reasons, which I now set out below. 32Exhibit 1 comprised the Plaintiff's Submissions and List of Cases. 33Exhibit 2 comprised the affidavit of Chad Duensing sworn 24 November 2010. 34Exhibit 3 comprised the affidavit of Daniel Radman sworn 2 February 2011. 35Exhibit 4 comprised the affidavit of Daniel Radman sworn 25 November 2010 (to which Exhibit "DR 1" was attached). 36Exhibit 5 comprised the Statutory Declaration of Liam Annesley dated 7 November 2010. 37Exhibit 6 comprised the Statutory Declaration of Stuart Watson dated 7 November 2010. 38The evidence tendered supports the Plaintiff's claim for the recovery of outstanding strata levies from on or about 1 September 2007 to 23 November 2010 and for the recovery of interest thereon and expenses incurred in recovering these amounts up to and including the final hearing. 39Broadly speaking, there is, firstly, evidence of the facts on which the Plaintiff's claim is based and, secondly, evidence that the Defendant has no defence to the Plaintiff's claim. A more detailed analysis of the evidence appears later in this judgment. 40In the circumstances, and for these reasons, I am of the view that the application to proceed on an ex parte basis should be granted, and I so order.
Relief sought by Plaintiff 41At the time when the Plaintiff filed the Further Amended Statement of Claim, the Plaintiff sought the following relief: - (a) Claim component in the amount of $49,776.65 comprised of: - (i) Unpaid levy contributions (strata levies) up to 1 June 2010 in theamount of $36,014.73; (ii) Costs and expenses incurred by the Plaintiff up to 5 April 2010 in attempting to recover unpaid contributions due and owing by the Defendant to the Plaintiff pursuant to s.80 of the Strata Schemes Management Act 1996 (NSW) in the amount of $13,761.92. (b) Interest up to 5 August 2010 in the amount of $6,693.56 pursuant to s.79(2) of the Strata Schemes Management Act 1996 (NSW). (c) Court filing fees, service fees and solicitors fees in the amount of $1,072.40 pursuant to Part 4 of Schedule 1 of the Civil ProcedureRegulation 2005 (NSW). 42The recovery costs and expenses claimed in the further Amended Statement of Claim have been incurred by the Plaintiff entirely in relation to these proceedings. There is no suggestion that the Plaintiff is seeking to recover any costs incurred in relation to previous proceedings. 43The Defendant has not filed or served an Amended Defence to the Further Amended Statement of Claim, nor has the Defendant made any payments whatsoever towards the amount claimed by the Plaintiff since the proceedings were commenced. 44The Plaintiff's solicitor, in a process which, for the reasons set out below, I deem entirely proper, sought to update the amounts outstanding to the Plaintiff for unpaid levy contributions (strata levies), costs and expenses, interest, court filing fees, service fees and solicitor's fees. As at the date of the hearing, the Plaintiff's claim was as follows: - (a) Claim component in the amount of $59,513.25 comprised of : - (i) Unpaid levy contributions (strata levies) up to 1 June 2010 in the amount of $36,014.73; (ii) Costs and expenses incurred by the Plaintiff up to 23 November 2010 in attempting to recover unpaid contributions due and owing by the Defendant to the Plaintiff pursuant to s.80 of the Strata Schemes Management Act 1996 (NSW) in the amount of $23,498.52. (b) Interest up to 2 February 2011 in the amount of $8,479.50 pursuant to s.79(2) of the Strata Schemes Management Act 1996 (NSW). (c) Court filing fees, service fees and solicitor's fees in the sum of $1,072.40 pursuant to Part 4 of Schedule 1 of the Civil Procedure Regulation 2005 (NSW). (d) Recovery expenses incurred pursuant to s.80 of the Strata Schemes Management Act 1996 (NSW) from 24 November 2010 up to and including 2 February 2011, as agreed or assessed. 45The relevant provisions of the Strata Schemes Management Act 1996 (NSW) are as follows: - " 76 Owners corporation to set levy for contributions to administrative and sinking funds (1) The owners corporation must determine the amounts to be levied as a contribution to the administrative fund and the sinking fund to raise the amounts est i mated as needing to be credited to those funds. (2) That determination must be made at the same meeting at which those estimated amounts are determined. (3) The owners corporation must levy on each person liable for it such a contribution. (4) If the owners corporation is subsequently faced with other expenses it cannot at once meet from either fund, it must levy on each owner a contribution to the administrative fund, determined at a general meeting of the owners corporation, in order to meet the expenses. (5) A contribution is, if an owners corporation so determines, payable by such regular periodic instalments as are specified in the determination setting the amount of the contribution. 78 Manner of levying contributions (1) An owners corporation levies a contribution required to be paid tothe administrative fund or sinking fund by an owner of a lot byserving on the owner a written notice of the contribution payable. (2) Contributions levied by an owners corporation must be levied inrespect of each lot and are payable (subject to this section and section 77) by the owners in shares proportional to the unit entitlements of their respective lots. (3) If, at the time a person becomes owner of a lot, another person isliable in respect of the lot to pay a contribution, the owner is jointly and severally liable with the other person for the payment of thecontribution and interest on the contribution. (4) A mortgagee or covenant chargee in possession of a lot (whether in person or not) is jointly and severally liable with the owner of thelot: (a) for any regular periodic contributions to the administrative fund or sinking fund together with any interest on thosecontributions, and (b) for any other contribution together with interest on thatcontribution if the mortgagee or covenant chargee has been given written notice of the levy of the contribution. (5) Subsection (4) does not affect the liability of an owner of a lot forany contribution levied under this section. (6) Regular periodic contributions to the administrative fund andsinking fund of an owners corporation are taken to have been dulylevied on an owner of a lot even though notice levying thecontributions was not served on the owner. 79 Interest and discounts on contributions (1) Any contribution levied by an owners corporation becomes dueand payable to the owners corporation in accordance with thedecision of the owners corporation to make the levy. (2) A contribution, if not paid at the end of one month after it becomesdue and payable, bears until paid simple interest at an annual rateof 10 per cent or, if the regulations provide for another rate, thatother rate. (3) However, an owners corporation may by special resolutiondetermine (either generally or in a particular case) that acontribution is to bear no interest. (4) An owners corporation may, by special resolution, determine(either generally or in a particular case) that a person may pay 10per cent less of a contribution levied if the person pays thecontribution before the date on which it becomes due and payable. 80 How does an owners corporation recover unpaid contributionsand interest? (1) An owners corporation may recover as a debt a contribution notpaid at the end of one month after it becomes due and payable, together with any interest payable and the expenses of the ownerscorporation incurred in recovering those amounts. (2) Interest paid or recovered forms part of the fund to which therelevant contribution belongs." 46There is evidence that the Defendant is the owner of Lots 21 and 22 in Strata Plan 68523. In accordance with ss.76 and 78(2) of the Strata Schemes Management Act 1996 (NSW) , the evidence discloses that contributions were levied by the Plaintiff to be paid to the administrative fund and/or the sinking fund in respect of the Defendant's lots and are payable in shares proportionate to the unit entitlements for each lot. The contributions levied by the Plaintiff were resolved at Annual General Meetings and Extraordinary General Meetings held on 13 November 2006, 19 November 2007, 10 November 2008, 29 May 2009 and 9 November 2009, respectively. As a result of the Defendant's failure to make payment of the strata levies referable to the lots owned by him, interest at the rate of 10% is now due and payable on all outstanding levies pursuant to s.79(2) of the Strata Schemes Management Act 1996 (NSW) . 47The Plaintiff's solicitor drew my attention to a number of decisions of the Supreme Court of NSW and the Court of Appeal which considered "expenses" and s.80 of the Strata Schemes Management Act 1996 (NSW) , in particular, the decision of Cooper AJ in Coshott v Owners of Strata Plan 48892 [2006] NSWSC 308 ("the First Coshott Case") and Adams J in Coshott v Owners SP No. 48892 [2008] NSWSC 854 ("the Second Coshott Case") in which their Honours at [76] and [4] respectively, held that an Owners' Corporation can recover all legal costs and disbursements and all other expenses it incurs in the debt recovery process including, for example, mercantile and strata managing agents' fees and that the word "expenses" is not limited in any way. Those decisions indicate the clear intent of s.80 of the Strata Schemes Management Act 1996 (NSW) that an Owners' Corporation would not be left out of pocket because a lot owner has failed to pay contributions duly levied and that expenses can be recovered in actions separate to the principal action, if necessary, associated with the recovery of unpaid levy arrears. (First Coshott Case at [81] - [86]; and Second Coshott Case at [6]). 48In Owners of Strata Plan 36131 v Dimitriou [2009] NSWCA 27, the Court of Appeal agreed that the legal expenses incurred by an Owners' Corporation are recoverable but that such recovery is limited to such costs and disbursements that are reasonably incurred and reasonable in amount. While their Honours Hodgson JA, Basten JA and Handley AJA respectively arrived at the same conclusion regarding recoverability, their Honours did not concur with one another in relation to the method by which expenses incurred pursuant to s.80 of the Strata Schemes Management Act 1996 (NSW) were calculated. To the extent that the Defence remains silent on the issue of reasonableness of expenses incurred, or otherwise, it is not necessary for this Court to engage in a discussion of the s.80 expenses, suffice it to say that the Plaintiff provided to the Defendant fully itemised bills which, on their face, appear reasonable in amount and in relation to expenses reasonably incurred. 49It seems to me that the overall intention of the authorities to which I have referred is that all reasonable costs ought to be recoverable. In relation to the recovery of costs incurred in enforcing security where mortgagors are in default, Basten JA in Dimitriou held at [65] that: - "the entitlement to recover all costs reasonably and properly incurred in protecting or enforcing a security has long been a principle of general law, not dependent upon the existence of an express contractual term: see In re Shanahan (1941) 58 WN (NSW) 132 at 134 (Street J)." 50The Defendant has failed to provide any evidence which disputes the claim by the Plaintiff for unpaid levies, interest and costs. The Defence does not raise any identifiable defence to the Plaintiff's claim but merely particularises that a set-off is claimed as outlined in the Cross-Claim for work allegedly performed by the Defendant to the common property of the strata complex relevant to the proceedings. 51The Defendant has failed to provide any cogent evidence in support of any of the allegations pleaded in the Cross-Claim. The Plaintiff denies that any works were undertaken by the Defendant to the common property, or elsewhere, at the request of the Plaintiff and, similarly, denies that there was ever any oral or written agreement between the Plaintiff and the Defendant of any kind. There is no evidence of a resolution by the Executive Committee whether via an Annual General Meeting or an Extraordinary General Meeting which resolved to authorise the engagement of the Defendant to undertake any of the works alleged to have been carried out by him. 52For the reasons given, I accept the Plaintiff's evidence and reject the Defendant's evidence. 53Rule 29.7 of the Uniform Civil Procedure Rules 2005 (NSW) provides as follows:- " 29.7Procedure to be followed if party is absent (1) This rule applies when a trial is called on. (2) If any party is absent, the court: (a) may proceed with the trial generally or so far as concernsany claim for relief in the proceedings, or (b) may adjourn the trial. (3) If, in relation to a liquidated claim, the plaintiff appears, but adefendant does not appear, the court may, without proceeding to trial, give judgment against that defendant on evidence of: (a) the amount then due to the plaintiff in respect of the causeof action for which the proceedings were commenced, and (b) any payments made or credits accrued since thecommencement of the proceedings in reduction of theamount of the plaintiff's claim or costs. (4) If, in relation to any proceedings, the defendant appears, but theplaintiff does not appear, the court may dismiss the proceedings. (5) Subrules (3) and (4) do not limit the court's powers under subrule(2)." 54In the circumstances, and for the reasons given: - (a)The Defence is struck out for want of prosecution. (b)Judgment is entered for the Plaintiff. (c)The Cross-Claim is dismissed for want of prosecution.
Orders
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: 25 March 2011
The Owners - Strata Plan 68523
Peter Drury