The Owners-Strata Plan No 21372 v Banovic

Judgment

1. In these proceedings the plaintiff Owners Corporation complains that the first defendant occupier of a unit in the strata scheme, and the second defendant owner of the unit, have obstructed or hindered the plaintiff in carrying out its repair obligations in respect of the common property. The plaintiff further complains that the defendants have used the unit, or permitted the unit to be used, in such a way as to cause a nuisance to the occupiers of other units in the scheme.
2. The proceedings were commenced on 15 October 2015. As currently framed, they are based on provisions of the now repealed Strata Schemes Management Act 1996 (NSW) ("the 1996 Act"), and in particular ss 65 and 117. It is clear, however, that the plaintiff complains of continuing conduct on the part of the defendants, including conduct that has occurred since the commencement in November 2016 of the Strata Schemes Management Act 2015 (NSW) ("the 2015 Act"). The plaintiff intends to rely also upon the cognate provisions of the 2015 Act, including s 153.
3. The plaintiff succeeded in obtaining certain interlocutory orders against the first defendant on 1 December 2015. Those orders were not complied with. The plaintiff pursued a contempt motion against the first defendant. However, on 28 February 2015, the Court ordered that the contempt motion be permanently stayed on the ground that the first defendant was not fit to be tried for contempt: see The Owners Strata Plan 21372 v Banovic [2017] NSWSC 177.
4. The proceedings were brought in this Court, rather than pursuant to the dispute resolution regime set forth in Chapter 5 of the 1996 Act, due in part to a concern about enforcement of any orders obtained against the first defendant, having regard to the limited nature of the enforcement powers available to the Civil and Administrative Tribunal ("the Tribunal"). The fate of the contempt motion, and the consequential acceptance by the plaintiff that seeking to enforce any orders against the first defendant is likely to be futile, obviously raised for consideration the question whether the proceedings should remain in this Court or should be transferred to the Tribunal. The question of the future conduct of the proceedings was raised in directions hearings. Orders were made for the provision of written submissions. Submissions have been provided by all parties. As no party suggested that a further oral hearing was necessary, the Court will proceed to deal with the question on the papers.