The Owners - Strata Plan No 87812 v Thomson - [2019] NSWCATCD 38 - NSWCATCD 2019 case summary

NCAT Consumer and Commercial|2019-02-26

Application

By an application filed on 8 November 2018 the Owners Strata Plan 87812 through their Strata Manager Key Strata Management sought orders pursuant to section 147 of the Strata Schemes Management Act 2015 that the Tribunal order that the respondent pay a monetary penalty of 10 penalty units for each breach of each By-law making a total of 20 Penalty Units.
It was noted that the model By-laws were adopted when the Strata Plan was registered in January 2013. In late 2017 complaints were made by owners in regard to rubbish being carried through the foyer in leaky bags and it was further claimed that in early 2018 further complaints were received from owners concerning vandalism and rubbish being left on the common property.
Modifications were made to the bin bay area in May and June of 2018 the old access way to the bins was locked off and a new bin bay path was established.
It is alleged that the respondent was observed dumping rubbish in the bin bay area but not in the bins provided and that this breach of By-laws continued after the service of a Notice in accordance with section 147 of the Act.
The matter was initially listed before the Tribunal on 20 November 2018 when leave was granted to both parties to be legally represented and directions were made for the applicant to provide its documents by 18 December 2018 and the respondent to provide her documents in reply by 5 January 2019.
Directions as to specific documents required to be produced by the applicant were made and parties were advised that, as the applicant was seeking the imposition of a penalty, the onus would be on the applicant to prove the contravention of the By-laws by the respondent and that the rules of evidence would apply in the matter as it related to the imposition of a civil penalty.
The matter was listed again before the Tribunal on 6 February 2019 to enable the respondent to require documents to be produced under summons as Senior Member Charles had noted that some video or photographic evidence upon which the applicant proposed to relay had been redacted.

Applicant's Evidence

The applicant produced the relevant By-laws and it is noted that reliance was being placed on By-law 9 which provided as follows: 9 Depositing rubbish and other material on property An owner or occupier of a lot must not deposit or throw on the common property any rubbish, dirt, dust or other material or discarded item except with the prior approval of the Owners Corporation.
Reference was also made to By-law 16 which as far as is relevant provided as follows: 16 Garbage disposal (2) An owner or occupier of a lot in a Strata Scheme that has shared receptacles for garbage, recyclable material or waste: 1. Must ensure that before garbage, recyclable material or waste is placed in the receptacles it is, in the case of garbage, securely wrapped or, in the case of tins or other containers completely drained or in the case of recyclable material or waste separated and prepared in accordance with the applicable recycling guidelines; and 2. Must promptly remove anything which the owner, occupier or garbage or recycling collector may have spilt in the area of the receptacles and must take such action as may be necessary to clean the area wherein the thing was spilt.
By-law 9 and 16(2) appear to be the relevant By-laws for the purposes of the present penalty application.
A Notice to Comply with By-law 9 was issued on 2 August 2018 and a copy of the relevant By-law was apparently attached thereto when the Notice was served by email to the address provided by the respondent, namely stratacrap095@gmail.com.
A further notice for breach of By-Law 16 was issued on 2 August 2018 although it is noted that although a copy of By-law 16 is annexed to the Notice that By-law has been incorrectly identified as By-law 9 in the material provided to the Tribunal.
It is claimed that prior to the issue of these notices the applicant was observed taking rubbish towards the bin bay area and returning with no rubbish on 10 June 2018 and it is alleged that a box similar to the one she was carrying with two white bags in it was later observed on the common property. It was claimed that a box containing her address details was included in that material.
The applicant claimed that on 12 June an email was sent to Ms Thomson asking her to stop breaching By-laws 9 and 16 and to place her rubbish in the bins provided.
Although the material on behalf of the applicant clams that rubbish continued to accumulate on the common property there was no evidence provided to suggest that that accumulation was the responsibility of the respondent and/or her mother.
On 28 July 2018 it was claimed that the respondent was observed carrying rubbish to the bin bay area and returning empty handed and again it was suggested that similar bagged rubbish was found on the common property.
Following the issue and service of a Notice to Comply it is claimed that the respondent was caught on camera tossing a bag of rubbish and then a second bag of rubbish in to the bin area of common property and in one instance it is alleged she was observed retrieving it, splitting it and dispersing its contents. It is claimed that following this incident the Committee resolved to instruct the Strata Manager to lodge a penalty application and seek the maximum penalties possible against the respondent as the owner of Lot 2.
The evidence provided by the applicant consisted of a chronology and affidavits of Deborah Milligan dated 16 December 2018, Michael Martelli dated 16 December 2018, Annick Walford dated 16 December 2018 and Murray Mitchel dated 16 December 2018 along with the relevant title documents, the Management Agreement and various emails.
CCTV stills for 28 July 2018; 25, 26 and 28 October 2018 and 31 October 2018 were also provided. The Committee Meeting authorising the present proceedings was only attended by two Committee Members namely the Secretary and the Treasurer and the voting included a notation that the Tribunal be requested to impose the highest penalties possible being 10 Penalty Units for each breach representing 20 Penalty Units or an equivalent of $2200.00.
The affidavit of Deborah Milligan dealt with the general documents annexed and the history of communications from the Strata Manager to all unit holders in May of 2018. She referred also to the installation of safety handrails in the staircase which were undertaken as a result of a complaint by the respondent that her disabled mother could not access the rear bin area due to safety concerns. Allegations of matters which occurred in July 2018 appear to be based on circumstantial evidence and the first alleged breach after the Notice on 16 October 2018 has not been made out.
It is noted that at the hearing of the matter the respondent admitted to breaches on 25 October, 26 October, 28 October and 13 November and she also acknowledged receipt of the Notices issued under section 147 of the Act on 2 August 2018, although she was not questioned about the annexure of the relevant By-law which had been incorrectly described as By-law 9.
The emails provided on behalf of the applicant suggest there were concerns about vandalism in January 2018 which apparently led to the installation of CCTV cameras. There is nothing in the evidence to suggest that the applicant or her mother were responsible for the vandalism and there is little or nothing in the evidence to suggest the CCTV cameras had been used for anything other than attempts to catch the respondent and/or her mother depositing rubbish inappropriately.
For the purposes of the present proceedings it is appropriate to consider the actions after the notice was issued particularly those where the respondent has admitted breach of the By-laws.

Respondent's Evidence

It is appropriate to note at the outset, having reviewed the evidence provided by the applicants, that the respondent admitted receiving the notes under s 146 of the Act on 2 August 2018 and she also admitted to breaches on 25 October, 26 October 28 October and 13 November.
She commenced her submissions by claiming that the Owners Corporation had issued notices against her in circumstances where she claimed the Committee was discriminating against her as opposed to other owners who were also in breach of By-laws from time to time.
She claimed she was in dispute with a neighbour in relation to a deck and she claimed that on 8 January 2018 the Owners Corporation sided against her and in favour of the neighbour in a manner which she believed was unreasonable.
On 6 May 2018 the Owners Corporation either through a General Meeting or an Executive Committee Meeting determined to vary the structure of the bin bay by removing the back wall and padlocking gates which had originally given access to the bay.
It was claimed that the original access was padlocked to prevent spillage from the rubbish when occupiers of the units were traversing through the main entrance way to the bin.
By 9 May Ms Thomson had claimed that the new access was difficult for her aged mother and it was also a problem for her to take the rubbish out as she worked some 50 hours per week on a five day week with two hours travel each day. She claimed that apart from weekends she was not in a position to put the bins out in daylight and the lighting for the area was not sufficient. In June she was advised that the lighting had been put into the bin area to assist in this regard.
Although Ms Thomson does not admit that she left boxes in the common property area on 10 June 2018 there is some reasonably strong evidence to that effect but this of course precedes the Notice and it precedes a request by email from the Strata Manager that she should stop breaching the By-laws.
The evidence of her carrying rubbish on 28 July and leaving bin bags in the common property area is not conceded but the evidence is reasonably conclusive. She was issued with a notice on 2 August 2018 and she has admitted the four offences referred to earlier.
Ms Thomson seeks to justify her actions by claiming that the resolution to change the area of the bin bay and provide different access required the approval of a Special Resolution as an alteration of common property and further she states that it required approval from the Cumberland Council. She has not provided specific evidence to support this apart from a document from a builder who simply notes approval of the Council would have been required. She appears to be arguing that, because the changes to the bin bay and the access to it were illegal she is somehow entitled to breach the By-laws by declining to put rubbish in the bins provided.
The respondent's evidence includes a number of photographs of the area and some medical evidence to suggest that her mother has some difficulty with mobility. Notwithstanding this evidence it would appear that her mother had been photographed or videoed putting rubbish over the original locked gates into the bin area no proceedings have been taken against the respondent's mother.

Decision

Section 146 of the Strata Schemes Management Act 2015 enables an Owners Corporation to give Notice in a form approved by the Secretary to an owner or occupier of a Lot requiring the owner or occupier to comply with a specified By-law in circumstances where the Owners Corporation is satisfied that the owner or occupier contravened that By-law. It is necessary for the Notice to contain a copy of the specified By-law and notice cannot be given unless a resolution approving the issue of the notice or of the issue of the type of notice has first been passed by the Owners Corporation at a General Meeting or by the Strata Committee of the Owners Corporation.
The approval in this instance appears to have been provided by the Strata Committee and the approval to commence proceedings was authorised by a Strata Committee of only two, both of whom have given some evidence in the present proceedings.
Section 147 of the Act empowers the Tribunal, on application of an Owners Corporation to order a person to pay a monetary penalty of up to 10 penalty Units upon being satisfied that: 1. The Owners Corporation gave notice under the Division to the person requiring the person to comply with the By-laws; and 2. The person has since contravened the By-law. Further provision is made for penalties to be imposed as a maximum where a Tribunal is satisfied that the person has contravened a By-law again within 12 months after the penalty has first been imposed for a previous breach of the By-law. In the present instance two separate notices have been issued in relation to By-laws 9 and 16 and it is claimed that the particular offences which have been either proved or admitted constitute a breach of both By-laws and accordingly the Executive of the Owners Corporation seeks the imposition of two penalties being one for each breach of the By-laws and it seeks a maximum penalty in the case of each By-law, namely a $2,200 penalty together with costs incurred by the Owners Corporation as the result of solicitors being engaged in this matter.
Before dealing with the respondent's attitude in these matters it is appropriate to observe that some of the communications contained in the applicant's evidence are capable of suggesting a bias by Committee Members. In particular it is noted that after some time further video material allegedly depicting the respondent was passed from one committee member to another and to the Strata Manager with the comment "they're Baaack". This does not appear to represent an even handed approach to the imposition of penalties in this case and it is consistent with the recommendation of the two person Executive Committee Meeting that maximum penalty be imposed for breaches of each By-law together with payment of costs. The requested penalty is equivalent to the maximum penalty payable when a party comes back before the Tribunal for further breaches within a period of twelve months after the Tribunal has imposed its first penalties. There are other matters of concern in relation to the activities of the applicants in this case and in particular it is noted that when the matter first came before this Tribunal the Senior Member who dealt with the application at first instance noted that some of the video or photographic evidence had been redacted and he suggested that non redacted material should be made available to the respondent. It is noted further that the Return of Summons came back on two occasions before that material was finally provided on 15 February 2019, some time after production was provided.
These are matters of some concern when the Tribunal is to consider whether an even handed approach has been taken against any or all persons who may have been in breach of this or these By-laws. The presence of rubbish and vandalism in January 2018 prompted the installation of security cameras and as this was before the arrangement was changed. It can hardly be suggested at that time that the respondent was responsible for all vandalism and dumping of rubbish which had been occurring up to that point in time.
Having made the observations in relation to the applicant it is necessary for the Tribunal to consider the penalties which should be imposed on the respondent. In The Owners-Strata Plan 82306 v Anderson [20017] NSWCATCD 85 (31 October 2017) the Tribunal addressed the general factors to be considered when determining whether a pecuniary penalty is to be imposed and the amount of the penalty. Such factors were noted to include 1. The nature and extent of the contravention 2. The circumstances in which the contravention took place 3. The effect of the contravention on the operation, administration or management of the Strata Scheme in question. 4. The maximum penalty that may be imposed 5. The need for deterrence both specific and general 6. The individual or personal circumstances of the contravenor 7. Any other relevant mitigating circumstances. 8. When there are a number of contraventions (a whether it is appropriate to impose separate penalties and (b) whether the penalty or penalties are appropriate having regard to the totality principle.
The Rules of Evidence apply under s38 of the Civil And Administrative Tribunal Act 2013 in relation to the imposition of a civil penalty.
The Notice was served on 2 August 2018 and the respondent has admitted each of the breaches which have been alleged since that time. The explanations she has offered do not in any way justify a breach of By-laws particularly when, in most if not all circumstances, the respondent could have gone to the bin area and disposed of the rubbish in an appropriate manner.
The respondent's allegation of bias against her and of her beliefs that the modification of the bin area was done without proper authority are not a basis which would enable her to breach the By-laws regarding the disposal of rubbish. These matters have been explained to her and it is hoped that she will take them into account. The last incident relied on by the applicant apparently occurred on 13 November 2018 and there is no evidence of any further occurrences being established between that date and the date when the applicant sought to put on a last piece of evidence namely 4 February 2019.
The applicant has not sought separate penalties for each alleged offence and in the circumstances it would be inappropriate for such an application to have been made. The applicant does however seek separate penalties for the breach of each of the By-laws notwithstanding that the breach would have been created or caused by one offence on each of those dates.
The respondent has not provided any evidence of relevant mitigating circumstances given that her motivation appears to be a belief that the bin modifications were improperly undertaken. Her personal circumstances are unknown from the material she has provided other than the suggestion that she works 50 hours per week. The need for deterrence both specifically and in general is taken into account although it would appear that there are other people who have breached the same By-laws who as yet are not identifiable and therefore have not been the subject of proceedings by the Owners Corporation. This is a factor which can also be taken into account in the respondent's favour.
There are four offences which have been proved have also been admitted to with three of them being in late October and one being in mid-November. The Tribunal notes that after receiving a request by email to stop breaching the By-laws there was nevertheless a breach of By-law which has been established on 28 July 2018 which then resulted in the Notice being issued.
The maximum penalty is ten penalty units. Having regard to the fact that the respondent has admitted the breaches that have been made out and also the fact that she now hopefully understands her belief that the bin area was illegally modified does not justify a breach of the By-laws which have been in existence since 2013, it is not appropriate to impose the maximum penalty. The actions of the respondent do appear unrepentant in at least one instance where she broke open a bag and spread rubbish around. In the circumstances it is appropriate to impose a penalty of six Penalty Units or $660 payable to the Owners Corporation. The Tribunal does not propose to impose two penalties for each of the breaches where one offence could be regarded as a breach of both By-laws. It is a basic principle of the criminal law that one cannot be punished twice for the one offence.
A request was made by the applicant for solicitors to appear and leave has been granted to each party to be legally represented. The respondent did not receive her final evidence to which she was entitled until 15 February 2019, some 11 days before the hearing and some 11 days after she was required to put on her evidence.
Although an order for the payment of costs is an order available to the Tribunal it must take into account the fact that s147 imposes a maximum penalty for breaches of the By-laws which are brought against a party for the first occasion. No particular amount of costs has been claimed and there is no information upon which the Tribunal can determine costs which may be sought against the respondent if an order for costs as agreed or assessed was to be made. In the circumstances the Tribunal is not disposed to order costs but it can be noted that the penalty payable by the respondent could or should be applied against legal costs incurred in this matter. Whilst it is noted that legal representation is a benefit when affidavit evidence is required or evidence is required in accordance with the Evidence Act, the delays in putting evidence together and in providing documents required under a summons were matters outside the control of the respondent and in the circumstances any costs claimed by the applicant should not be ordered in addition to the penalty which has been imposed by the Tribunal in this case.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 02 July 2019

The Owners - Strata Plan No 87812 v Thomson

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Judgment (5 paragraphs)

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Cited By (2)