The Owners – Strata Plan 934 v T&P Chimes Development Pty Ltd (No 3)

Legislation Cited: Strata Schemes Development Act 2015 (NSW) ss 182, 186, 188

Cases Cited: Application by the Owners – Strata Plan No 61299 (No 2) [2019] NSWLEC 154
The Owners-Strata Plan 934 v T&P Chimes Development Pty Ltd [2025] NSWLEC 9
The Owners-Strata Plan 934 v T&P Chimes Development Pty Ltd (No 2) [2025] NSWLEC 28

Category: Consequential orders

Parties: The Owners – Strata Plan 934 (Applicant)
T&P Chimes Development Pty Ltd (First Respondent/Applicant on the motion)
Cubile Pty Ltd (Second Respondent)
Diana Dolores Mullins (Third Respondent)
John Rogers (Fourth Respondent)
Graeme Noel Curry (Fifth Respondent)
Lydia Katey Dimarco (Sixth Respondent)
Alfio Gerard Dimarco (Seventh Respondent)
Lawrence Michael Lutteral (Eighth Respondent)
Robert Villamaria (Ninth Respondent)
Christina Villamaria (Tenth Respondent)
Philip Sean Jirman (Eleventh Respondent)
Anthony David Godfrey Corp (Twelfth Respondent)
Judith Margaret Corp (Thirteenth Respondent)
FBIR Holdings Pty Ltd (Fourteenth Respondent)
Maryanne Dajkovich (Fifteenth Respondent)
Michael James Reed (Sixteenth Respondent)
EB 9 & 10 Pty Ltd (Seventeenth Respondent)
Barbara Lynn Schmidt (Eighteenth Respondent)
Peter William Cudlipp (Nineteenth Respondent)
Kathleen Anne Hackett (Twentieth Respondent)
R C Minter Superannuation Pty Ltd (Twenty-first Respondent)
Anastasia Moesses (Respondent on the motion)

Representation: Counsel:
M Parrino, solicitor (Applicant)
J McKelvey (Applicant on the motion)
Solicitors:
Project Lawyers (Applicant)
Dentons (First Respondent/Applicant on the motion)
No appearance (Second to Twenty-first Respondent)
No appearance (Respondent on the motion)

File Number(s): 2023/313769

Publication restriction: Nil

JUDGMENT

1. On 26 March 2025, I made orders pursuant to s 182(1) of the Strata Schemes Development Act 2015 (NSW) (SSD Act) to give effect to the strata renewal plan, as varied by the Court, for the redevelopment of Strata Plan 934 dated 2 March 2023 (the strata renewal plan) prepared for the property comprising lots 1 to 107 and common property in Strata Plan 934, being the whole of the property known as 45-53 Macleay Street, Potts Point, NSW 2011 (the building). On 2 April 2025, I published my reasons for the decision: The Owners-Strata Plan 934 v T&P Chimes Development Pty Ltd (No 2) (the strata renewal plan judgment). [1]

2. Relevantly, orders (3) to (7) of the strata renewal plan judgment were in the following terms (the 26 March 2025 orders):

(3) Pursuant to s 182(2) of the Strata Schemes Development Act 2015 (NSW) (SSD Act), Annexure B to the strata renewal plan for the redevelopment of Strata Plan No 934 dated 2 March 2023 (the strata renewal plan) is varied in relation to lot 19 to increase the purchase price for that lot to the amount of $1,400,000.

(4) Pursuant to ss 182(1) and (2) of SSD Act, the strata renewal plan as varied by the Court under order 3 is given effect.

(5) Pursuant to s 183(2) of the SSD Act, the applicant is to lodge a copy of the Court's order for registration with Land Registry Services within 7 days of these orders.

(6) Pursuant to s 185(2) of the SSD Act and in accordance with the orders that follow, the owner of Lot 19 in Strata Plan No 934, Ms Anastasia Moesses must sell her lot to the first respondent in accordance with the strata renewal plan and orders for a purchase price of $1,400,000.

(7) The owner of lot 19 in Strata Plan No 934 must, within 5 business days of being notified that the Registrar General has recorded these orders on the folio of the common property and each lot in Strata Plan 934, exchange a contract for the sale of land in accordance with Annexure A to the strata renewal plan and in the amount of $1,400,000.

3. On 8 May 2025, T&P Chimes Development Pty Ltd, the first respondent in the Class 3 proceedings (applicant on the motion) filed a notice of motion seeking orders pursuant to s 186 of the SSD Act against the owner of lot 19 in Strata Plan 934 (the property), Ms Anastasia Moesses (the respondent to the motion), that a trustee be appointed for lot 19 to enable its sale in accordance with the strata renewal plan judgment. The orders sought by the applicant on the motion are as follows:

1 Mitchell Griffiths of Rapsey Griffiths Turnaround and Advisory is appointed as trustee for the sale of Lot 19 Strata Plan 934 (the Property).

2 The Property is, from the date of these orders, vested in the trustee subject to any encumbrances affecting the entirety thereof to be held by the trustee upon trust for sale.

3 The trustee is to exercise the obligations as owner of the Property pursuant to the orders made by this Court in the proceedings on 26 March 2025 giving effect to the strata renewal plan and for the sale of the Property to T&P Chimes Development Pty Ltd

4 Anastasia Moesses is to pay the First Respondent's costs of this application, and the trustee is authorised to pay such costs on behalf of Ms Moesses from the proceeds of sale of the Property.

5 The trustee, on completion of the sale in accordance with Strata Renewal Plan 934, shall distribute the proceeds of sale of the Property in the following manner:

a. in payment of any adjustments on the sale of the Property under the contract for sale;

b. in payment of the trustee's costs up to completion of the sale, including any solicitor or conveyancing fees incurred by the trustee for the purpose of the sale;

c. in payment of the First Respondent's costs of this application for appointing a trustee, as referred to in order (4). This payment is to be made into the trust account of Dentons Australia Limited; and

d. the payment of the balance to Anastasia Moesses.

6 Where, after having made all reasonable enquiries, the trustee is unable to pay Ms Moesses the balance of the proceeds of sale, the trustee is to make payment of that balance into Court.

7 Following payment of the balance of the proceeds into Court pursuant to order 6, the trustee is to provide notice to Ms Moesses of the payment into Court and identify the steps to secure the release of the proceeds.

8 Such further or other orders as the Court sees fit.

4. On 20 May 2025, Registrar Froh made short minutes of order listing the notice of motion for hearing on 11 June 2025, and directed the applicant on the motion to serve a copy of those orders on the respondent to the motion.

5. The notice of motion was listed before me today, 11 June 2025, for hearing. Ms McKelvey for the applicant on the motion appeared. Ms McKelvey informed the Court that the solicitors for the second to twenty-first respondents were advised of the hearing today. However, they indicated that they had no instructions to appear. The respondent to the notice of motion, Ms Moesses, did not appear. Accordingly, the hearing proceeded ex parte.

Relevant legislative provisions

6. Within Part 10 “Strata Renewal process for freehold strata schemes”, Division 7 “Orders to give effect to strata renewal plans”, s 186 of the SSD Act provides relevantly as follows in relation to ancillary orders:

186 Ancillary orders

(1) The court may make an order to provide for any ancillary or consequential matter (an ancillary order) that it considers appropriate or necessary to ensure the effectiveness of the order giving effect to a strata renewal plan.

(2) Without limiting subsection (1), an ancillary order may include directions about the following matters—

(a) the appointment of a trustee for the sale of an owner’s lot,

(b) the vesting of an owner’s lot in the trustee for the purpose of selling the lot and distributing the proceeds of sale to the owner,

…

(3) An ancillary order may be made when or at any time after the order giving effect to the strata renewal plan is made.

(4) An ancillary order may be made on application by any person with the leave of the court.

7. Section 188 of the SSD Act provides as follows in relation to costs of proceedings:

188 Costs of proceedings

(1) Unless the court otherwise orders—

(a) the owners corporation must pay the reasonable costs of proceedings for an application for an order to give effect to a strata renewal plan incurred by a dissenting owner, and

(b) the owners corporation must not levy a contribution for a part of the costs of the proceedings on a dissenting owner.

(2) If the court is satisfied a dissenting owner has a conflict of interest that makes it inappropriate, in the court’s opinion, for the owners corporation to pay the owner’s costs, the court must make an order requiring the owner to pay—

(a) the owner’s costs, and

(b) any contribution for a part of the costs of the proceedings levied on the owner.

(3) The court may make a costs order against a dissenting owner if the court considers it appropriate to do so, including if the court considers the owner has not acted in good faith in failing to give, or withdrawing, a support notice.

(4) The court may order that costs be assessed on the ordinary basis or an indemnity basis.

(5) The regulations may prescribe other matters relating to the costs of proceedings for an application for an order to give effect to a strata renewal plan.

Evidence

8. The applicant on the motion relied on the following evidence in support of its notice of motion:

9. an affidavit of Stephanie Anne Willis, a solicitor for the applicant on the motion, dated 8 May 2025 and Exhibit SW-1 thereto, and an affidavit of Ms Willis dated 3 June 2025 and annexures A to J thereto;

10. an affidavit of Mitchell Griffiths, director at Rapsey Griffiths Turnaround and Advisory, dated 8 May 2025 and annexures A to E thereto;

11. an affidavit of service of an affidavit of Zac Zaineddine dated 15 May 2025 which was filed and read in Court on 20 May 2025, and an affidavit of service of Zac Zaineddine dated 6 June 2025 which was filed and read in Court on 11 June 2025, deposing to the service on Ms Moesses on Friday, 6 June 2025 of the material to be relied on by the applicant on the motion at today’s hearing of its notice of motion;

12. an affidavit of Evan Papadopoulos, secretary of The Owners - Strata Plan 934 and employee of a related entity of the applicant on the motion, dated 4 June 2025 and annexures A to C thereto; and

13. an affidavit of Stephanie Vatala, solicitor on the record for the applicant on the motion, dated 4 June 2025.

14. In her affidavit of 8 May 2025, Ms Willis deposed to communications with Anastasia Moesses, the owner of lot 19, in seeking to effect the sale of lot 19 in accordance with the orders of the strata renewal plan judgment, and in relation to the filing of this notice of motion seeking a trustee be appointment for lot 19. Ms Willis said that the notice of motion was foreshadowed with Ms Moesses on 1 May 2025 by email. In her email to Ms Moesses, Ms Willis confirmed that:

15. the amount to be paid for the sale of lot 19 was the same as the amount to be paid to lot 18;

16. the first respondent was in the process of preparing an application to the Court to appoint a trustee for the sale of Ms Moesses’ property and would need to receive the signed contract for the sale and purchase of land for lot 19 Strata Plan 934 (the contract for sale) from her; and

17. Ms Moesses should engage a solicitor.

18. Exhibited to Ms Willis’ affidavit of 8 May 2025 was:

19. a copy of a title search for lot 19 dated 16 April 2025 confirming that the orders made in the strata renewal plan judgment were registered on title;

20. a copy of a title search of the common property of Strata Plan No 934 dated 17 April 2025 confirming that the orders made in the strata renewal plan judgment were registered on title;

21. a copy of a title search for dealing no AU939986 recording the execution of the request for the registration of the orders made in the strata renewal plan judgment lodged by the applicant in the Class 3 proceedings as at 31 March 2025;

22. a copy of the notice from Land Registry Services dated 16 April 2025 confirming that dealing no AU939986 was recorded on the title of all lots and the common property of Strata Plan 934 on 16 April 2025;

23. a title search for lot 19 dated 16 April 2025 identifying Anastasia Moesses as the registered proprietor;

24. an affidavit of service of Alison Gamsby dated 24 April 2025 deposing to personal service on Ms Moesses of a certified copy of the strata renewal plan judgment and orders made in the strata renewal plan judgment, and of the contract for sale; and

25. a letter from Ms Vatala to Ms Moesses dated 17 April 2025 (which was personally served) in which Ms Vatala said that if Ms Moesses did not execute the contract for sale by 29 April 2025 in accordance with the orders made in the strata renewal plan judgment she would be in breach and in contempt of court.

26. In her second affidavit dated 3 June 2025, Ms Willis deposed to communications with Ms Moesses. On 13 May 2025, Ms Moesses was personally served the notice of motion and accompanying affidavits filed 8 May 2025, and on 21 May 2025 the orders made by Registrar Froh on 20 May 2025 listing the notice of motion for hearing on 11 June 2025.

27. Mr Griffiths deposed to his experience and qualifications. Mr Griffiths believes that he has the experience and qualifications necessary to be appointed trustee of lot 19, including having worked in insolvency and administration for over 22 years, being a registered trustee with the Australian Financial Security Authority, and having previously been appointed by the Court as trustee in similar circumstances in the matter of Application by the Owners – Strata Plan No 61299 (No 2) [2019] NSWLEC 154 (SP 61299 (No 2)). Mr Griffiths annexed to his affidavit an estimate of his fees that would be associated with his appointment as trustee of lot 19.

28. In his affidavit dated 4 June 2025, Mr Papadopoulos deposed to various communications with Ms Moesses. He said that on 10 May 2025, Ms Moesses told him by telephone that she did not understand why the sale price was $1.4 million and not $1.6 million and that she would be prepared to sign a contract at $1.6 million. Mr Papadopoulos told Ms Moesses words to the effect that he understood that the offer of $1.6 million had been previously made on a without prejudice basis.

29. Ms Moesses asked Mr Papadopoulos the date of the court hearing in relation to the trustee, and Mr Papadopoulos and Ms Moesses discussed “what has happened” in the proceedings. Ms Moesses said that she would ask her solicitor to contact him on 12 May 2025. On 14 May 2025, Mr Papadopoulos telephoned Ms Moesses. Ms Moesses said that her “proposed contract amount” was $1.6 million. Mr Papadopoulos told her that the court order provides for a price of $1.4 million and that this would not be negotiated. Ms Moesses said that her solicitor “has problems” and had “not gotten back to her”.

30. On 17 May 2025, Ms Moesses sent a text message to Mr Papadopoulos in which she said she would accept the price of $1.4 million. On 22 May 2025, Ms Moesses telephoned Mr Papadopoulos and said words to the effect that she did not understand why she had to appear in court and thought that “we had a deal”. She said that she would get a solicitor to appear in court on 11 June 2025, and would not sign the contract for sale until then.

31. Ms Vatala deposed that as at 3pm on 4 June 2025, Ms Moesses had not provided the solicitors for the applicant on the motion a signed copy of the contract for sale as served on her on 17 April 2025.

Appointment of a trustee

17. The applicant on the motion seeks orders for the appointment of Mitchell Griffiths, registered trustee, and relies on the affidavit of Mr Griffiths dated 8 May 2025 regarding his engagement and fees. The applicant on the motion proposes that lot 19 be vested in the trustee, that the trustee execute the contract for sale, and that the trustee secure delivery of title to the applicant on the motion as purchaser on settlement of the contract for sale. The proposed orders also deal with how the proceeds of sale are to be distributed.

18. The applicant on the motion submitted that there is an analogy to be drawn with orders “regularly made by the Supreme Court in respect of s 66G of the Conveyancing Act 1919 (NSW) for the sale of land with multiple owners” and that “[s]uch arrangement creates a statutory trust”. No authority was provided for this submission. However, I do not find it necessary to resolve the matters raised by a submission made at such level of generality in circumstances where I am satisfied that the Court has power pursuant to s 186 of the SSD Act to make the orders sought.

19. The applicant on the motion also submitted that “although the SSD Act does not expressly say it, any trustee appointed to effect the sale of Lot 19 would be subject to the Trustee Act 1925”. No particular provisions of the Trustee Act 1925 (NSW) said to be presently relevant was identified. Again, I do not find it necessary to resolve a submission made at such level of generality in circumstances where I am satisfied that the Court has power pursuant to s 186 of the SSD Act to make the orders sought.

20. The applicant on the motion referred to the decision of Pain J in SP 61299 (No 2) in which her Honour made an order appointing a trustee under s 186 of the SSD Act. In that case, Mr Griffiths was accepted as an appropriate person to be appointed trustee. Justice Pain held at [7] that Mr Griffiths had the necessary experience and qualifications to undertake the “relatively straightforward task required of executing the contract for sale and ensuring the discharge of the mortgage”. Her Honour noted that all that was required to discharge the mortgage was the lodgement of the necessary discharge form. It was submitted that in this case there is no mortgage registered on the title for lot 19 in Strata Plan 934, making the relatively straightforward task of the trustee appointed under s 186 of the SSD Act even simpler.

21. I am satisfied on the evidence that:

22. Ms Moesses is the owner of lot 19 in Strata Plan 934;

23. Ms Moesses was served on 14 April 2025 with a copy of the Court’s orders made on 26 March 2025;

24. Ms Moesses was notified of the registration of the Court’s orders made on 26 March 2025 by personal service effected on 17 April 2025 of correspondence from the solicitor for the applicant on the motion;.

25. Ms Moesses has not provided a signed contract for sale to the applicant on the motion in accordance with order 7 of the Court’s orders made on 26 March 2025;

26. Ms Moesses has corresponded with the solicitors for the applicant on the motion since at least 1 May 2025;

27. Ms Moesses ceased communicating with the applicant on the motion’s solicitor with carriage of the matter on or around 22 May 2025; and

28. Ms Moesses has not communicated with Mr Papadopoulos, secretary of the Owners – Strata Plan 934, since on or around 22 May 2025.

29. It is also evident from the affidavits of Ms Willis, in particular, that substantial attempts have been made to secure Ms Moesses’ execution of the contract for sale and for her to seek legal advice in relation to this matter.

30. Ms Moesses not having provided to the applicant on the motion an executed copy of the contract for sale by 29 April 2025, I am satisfied that it is appropriate and necessary to make ancillary orders pursuant to s 186 of the SSD Act to ensure the effectiveness of the order giving effect to the strata renewal plan. In particular, I am satisfied that it is appropriate and necessary to make ancillary orders that Mitchell Griffiths of Rapsey Griffiths Turnaround and Advisory be appointed as trustee (the trustee) for the sale of lot 19 in Strata Plan 934 (s 186(2)(a)), and that the property is, from the date of these orders, vested in the trustee subject to any encumbrances affecting the entirety thereof to be held by the trustee upon trust for sale (orders 1 and 2 sought in the notice of motion) (s 186(2)(b)).

31. I am also satisfied that it is appropriate and necessary to make orders 3 and 5sought in the notice of motion.

Costs

25. Order 4 in the notice of motion seeks that Ms Moesses pay the costs of the applicant on the motion, T&P Chimes Development Pty Ltd, the first respondent in the Class 3 proceedings, and that the trustee is authorised to pay such costs on behalf of Ms Moesses from the proceeds of sale of the property.

26. The applicant on the motion submitted that while s 188 of the SSD Act provides that unless the court otherwise orders, the reasonable costs of proceedings for an application for an order to give effect to a strata renewal proposal that are incurred by a dissenting owner are payable by an owners corporation, the SSD Act is silent on how costs are to be addressed in respect of ancillary or consequential orders such as those now sought.

27. The applicant on the motion referred to the observations of Pain J in SP 61299 (No 2) at [11]-[14] and her Honour’s decision to order payment of the trustee’s costs and the costs of the application to appoint a trustee from the sale of the lot in that case:

11 Section 98 of the Civil Procedure Act 2005 provides a general power to make a costs order subject to the rules of a court, if any. These are Class 3 proceedings to which r 3.7 of the Land and Environment Court Rules 2007 does not apply as this is not an appeal or other matter referred to in s 19(h) of the Land and Environment Court Act 1979 (LEC Act). Under s 19 of the LEC Act applications under Pt 10 of the SSD Act are identified in s 19(g6) as forming part of the Court’s Class 3 jurisdiction. The costs discretion is therefore at large subject to being exercised judicially such as taking into account relevant matters.

12 This is the first ancillary order application under the SSD Act considered by the Court. One category of Class 3 matters where the costs discretion is also at large is compulsory acquisition cases under the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act). Recently in Croghan v Blacktown City Council [2019] NSWCA 248 the Court of Appeal considered costs in Class 3 matters in the context of how offers of compromise provisions in the Uniform Civil Procedure Rules 2005 apply in Just Terms Act matters. The Court of Appeal confirmed at [18] (Meagher JA, McCallum JA and Simpson AJA agreeing) that the general costs position as determined in Dillon v Gosford City Council (2011) 184 LGERA 179; [2011] NSWCA 328 (Dillon) is that generally a dispossessed owner should be awarded costs if their claim for compensation is brought and executed reasonably. Dillon identified at [60] that the costs discretion was unfettered.

13 Compensation offered for the sale of lots in a strata scheme must be just and equitable in all the circumstances, see s 182(1)(d) of the SSD Act. As the Applicant submitted, the process under the SSD Act is different to the Just Terms Act as compensation is determined for active dissenting owners at the same time as an order is made enabling the sale of property. Section 188 provides a dissenting owner with the benefit of a presumptive costs order.

14 I am applying the wide costs discretion in the context of the SSD Act in the particular circumstances before me of a lot owner not complying with the Court’s orders. Ms Harris, through her failure to comply with court orders by which she is bound, is causing unnecessary expense to be incurred by all the complying lot holders in relation to the appointment of a trustee and this ancillary order application if no costs order is made. It is fair and equitable that she be responsible for these two categories of costs. Orders to that effect will be made.

28. I am satisfied that the circumstances of this case are relevantly similar to those in SP61299 (**No 2). In this case, as in SP61299 (No 2), Ms Moesses’ failure to comply with court orders would cause unnecessary expense to be incurred by complying lot holders in relation to the appointment of a trustee and this ancillary order application if no costs order is made. In circumstances where additional costs have arisen by reason of Ms Moesses’ non-compliance with the Court’s orders, it is appropriate that she bear the costs of the applicant on the motion, and the trustee’s costs up to completion of the sale, including any solicitor fees or conveyancing fees incurred by the trustee for the purpose of the sale.

Payment into Court?

29. In its notice of motion filed on 8 May 2025, the applicant on the motion sought orders that where, after having made all reasonable enquiries, the trustee is unable to pay Ms Moesses the balance of the proceeds of sale, the trustee is to make payment of that balance into Court (order 6); and that following payment of the balance of the proceeds into Court pursuant to order 6, the trustee is to provide notice to Ms Moesses of the payment into Court and identify the steps to secure the release of the proceeds (order 7).

30. I raised with Ms McKelvey the power of the Cout to make such orders in relation to payment into Court, and the mechanisms available to the Court for releasing monies paid into it in the circumstances of these proceedings.

31. Ms McKelvey did not press orders 6 and 7 in the notice of motion.

Orders

32. The Court makes the following orders:

33. Mitchell Griffiths of Rapsey Griffiths Turnaround and Advisory is appointed as trustee for the sale of lot 19 Strata Plan 934 (the p****roperty).

34. The property is, from the date of these orders, vested in the trustee subject to any encumbrances affecting the entirety thereof to be held by the trustee upon trust for sale.

35. The trustee is to exercise the obligations as owner of the property pursuant to the orders made by this Court in the proceedings on 26 March 2025 giving effect to the strata renewal plan and for the sale of the property to T&P Chimes Development Pty Ltd.

36. Anastasia Moesses is to pay the applicant on the motion's costs of this application, and the trustee is authorised to pay such costs on behalf of Ms Moesses from the proceeds of sale of the property.

37. The trustee, on completion of the sale in accordance with Strata Renewal Plan 934, shall distribute the proceeds of sale of the property in the following manner:

(a) in payment of any adjustments on the sale of the property under the contract for sale; (b) in payment of the trustee's costs up to completion of the sale, including any solicitor or conveyancing fees incurred by the trustee for the purpose of the sale; (c) in payment of the applicant on the motion’s costs of this application for appointing a trustee, as referred to in order (4). This payment is to be made into the trust account of Dentons Australia Limited; and (d) the payment of the balance to Anastasia Moesses.

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Endnote

[2025] NSWLEC 28.