The Owners-Strata Plan No 92334 v Zheng

DOCUMENTS OF THE APPLICANT

1. The documents of the applicant that were admitted into evidence were as follows: 1. Affidavit of Ms Clark (strata manager) dated 22 August 2023. 2. Affidavit of Mr Matthews (building manager) dated 23 August 2023. 3. Documents produced under Summons from the Roads and Maritime Services NSW in respect of vehicle registration plates for licence number DGB 57P. 4. ASIC records for Aus Asia Holiday Pty Ltd.
2. The Scott Schedules of the owners corporation and the outline of submissions of the owners corporation were Marked for Identification. The do not form part of the evidence.
3. The provisions of the Evidence Act 1995 (NSW) apply to the admission of evidence in penalty proceedings under s 147 of the SSM Act. The Tribunal was satisfied that the documents and substance of the evidence relied upon by the owners corporation were admissible.

Affidavit of Ms Clark

1. The affidavit of Ms Clark states that pursuant to the strata managing agency agreement, she has "full authority to serve notices to comply with by-laws."
2. The affidavit contains a copy of the parking by-law (by-law 27) and the strata managing agency agreement.

Strata Managing Agency Agreement

1. Clause 2 of the Managing Agency Agreement states as follows: 2. Appointment of and delegation to agent 2.1 The owners corporation: (a) appoints the agent as the strata managing agent for the strata scheme; and (b) subject to clause 2.2 and 2.3, delegates the agreed services and additional services to the agent, from the commencement of the date for the agreed services fee and the additional services fee, until the agreement is terminated in accordance with clause 5 or at the end of term whichever is the earlier. 2.2 The extent of authority for agreed services and additional services that has been delegated is stated in schedule A1, being ether: (a) full authority with no limitations; (b) full authority subject to limitations as disclosed in schedule A2; or (c) no authority, in which case there is no delegation. 2.3 The parties acknowledge that: (a) the delegation to the agent in clause 2.1 does not: (i) constitute a delegation by the owners corporation of its power to make: (a) a delegation under section 52 of the Act; or (b) a decision on a matter required by the Act to be decided by the owners corporation; or (c) a determination relating to the levying or paying of contributions; or (ii) prevent the owners corporation or the strata committee from performing all or any of the agreed services or additional services (if any) and (b) the agent does not have and may not exercise any of the powers, authorities duties or functions of the owners corporation that are conferred on another strata managing agent appointed for the owners corporation under section 237 of the Act once notified of any such appointment by the Tribunal or the owners corporation.
2. Clause 8 of the managing agency agreement states: 8. Services of notices 8.1 Any notice to be served under the agreement: (a) must be served either personally, by post, facsimile or e-mail using the details provided on the front page of this agreement or other notice details subsequently notified from time to time by a party in writing by a party in writing; and; (b) is served for the first time it is served if it is served more than once.
3. Schedule A1 of the strata managing agency agreement states that the strata manager has authority to serve notices to comply with by-laws, subject to the limitations disclosed in Schedule A2.
4. Schedule A2 states as follows in a table: By-Laws and Disputes Limitations on Authority Fee Method Work associated with by-laws (amendments, additions, enforcement and breaches). Included preparation and lodgement of applications for mediation, adjudication, tribunal/court orders, briefing lawyers/consultants and attendance Subject to instructions by the owners corporation Additional charges

1. By-law 27 is attached to the affidavit of Ms Clark. It is an extensive by-law.
2. It is unnecessary to set out verbatim by-law 27. Some of the provisions purportedly empower the owners corporation to clamp the wheels of vehicles parked on common property and that Lot owners and occupiers are responsible for the costs incurred by the owners corporation in applying and subsequently removing the wheel clamp (cl 27.1 27.7 and 27.9).
3. There is also a provision that purportedly empowers the owners corporation to recover all fees and costs from an owner and occupier "associated with administering and enforcing this by-law" (cl. 27.10)
4. Relevant to this application, by-law 27.3 states that owners and/or occupiers shall not cause or permit vehicles to be parked on common property except with the prior written approval of the owners corporation.
5. By-law 27.4 states that owners and occupiers must ensure that their visitors use the visitor parking area for the purpose of parking only and must abide by the by-law.
6. By-law 27.5 states that owners and occupiers must ensure that their "employees, contractors, tradesperson, removalist or the like" use the visitor parking area only for parking; and not park for more than 6 hours "unless prior written arrangements are made with the building manager".
7. Ms Clark states that on 21 December 2022, the strata committee resolve to issue a Notice to Comply with By-law on Mr Zheng and Ms Lu. The Minutes of the meeting are attached to Ms Clark's affidavit.
8. The Minutes of that strata committee meeting refer to Motions being passed to issue Notices to Comply with By-laws against 3 Lot owners for failing to comply with By-law 27. All were passed unanimously. Motion 3 states that against Mr Zheng and Ms Lu, it had been reported to the owners corporation that they were "continually parking their vehicles-Registration #DGB 57P, #DNF 87Q and #DGH 37 on common property in the visitors area".
9. The strata committee resolved to issue a Notice to Comply with By-laws under s 146 of the SSM Act on the respondents, and that if the respondents in future breached the Notice to Comply: …the Owners Corporation instruct the managing agent to lodge an application for Mediation under the Strata Schemes Management Act 2015 with them for their breach of by law 2 by continually parking their vehicles-Registration #DGB 57P, #DNF 87Q and #DGH 37E on the common property. If mediation with Peng Zheng & Ning Lu is unsuccessful that the Owners Corporation instruct the managing agent to lodge an application for a penalty order by a Strata Schemes Adjudicator (sic) for the continued breaches of by-law 27 of the by-laws applying to the building.
10. The reference to "by-law 2" is a reference to the by-law of the strata scheme that relevantly states (at cl. 2.2. and 2.3) that all owners and occupiers must comply with the by-laws; and owners and occupiers must ensure their invitees comply with the by-laws "and shall be held responsible for any breach or failure to comply with these by-laws by their invitees."
11. The reference to lodging an application for a penalty order by a Strata Schemes Adjudicator is clearly in error, as Strata Schemes Adjudicators only existed pursuant to the Strata Schemes Management Act 1996 (NSW), the predecessor legislation to the SSM Act 2015.
12. Ms Clark states that on 21 December 2022 she "served a notice to comply" on the respondents. Her affidavit contains a copy of the Notice to Comply with By-laws dated 21 December 2022.
13. That Notice states the respondents have contravened By-law 27 in respect of "continually parking their vehicles-Registration #DGB 57P, #DNF 87Q and #DGH 37E on the common property visitor parking" and the action to be taken to comply with the by-law is "cease parking any vehicle on the common property".
14. The Notice attaches a copy of By-law 27 and contains an affidavit of service stating the method of service was Ms Clark posting the Notice by registered post to the address of the respondents' Lot.
15. Ms Clark states that "following ongoing breaches of the By-law" by the respondents, a Mediation was held.
16. The mediation occurred on 25 May 2023. The certificate issued by NSW Fair Trading Strata Mediation states that an agreement was reached as follows: The Parties agreed that: … 1. Peng Zeng (sic) undertakes not to park any of his vehicles in the Visitor's Parking area again from today.
17. Ms Clark states that on 27 July 2023 the respondents wrote to her by email complaining that other residents of the strata building were parking on common property and the owners corporation was not taking any action. A copy of that email is attached to her affidavit. It relevantly states as follows: … We received our notice for "STRATA PLAN 92334-NCAT APPLICATION FILE NO: SC23/28206-BREACH OF BY-LAWS-PARKING" on 24 July 2023. … After the mediation of Fair Trading on 25 May 2023, we tried our best not to park in the visitor parking space as promised. However, the occupancy of visitor parking spaces by residents have not been improved. We can see that there are still may vehicles parking in the visitor parking spaces every day, especially at night, and some vehicles are parked in the visitor parking spaces almost every night. According to the photos we collected, there are more than 20 vehicles often parked in the visitor parking spaces, and the visitor parking spaces are full every night. When necessary, we can submit these photos to the relevant departments. I don't know what effective measures have you taken to manage the more than 20 vehicles often parked in the visitor parking spaces, whether they have been submitted to the Strata committee for publicity, whether they have been submitted to Fair Trading for mediation, and whether they have also been submitted to NCAT for hearing. If you can't take the same measures to manage all the owners who illegally occupy the visitor parking spaces, we thing we have been treated very unfairly, and we hope to get your reasonable explanation. Otherwise, we will consider lodging a complaint to the department concerned. Looking forward to your reply. …
18. Ms Clark states that the owners corporation has taken action against other Lot owners and occupants in respect of parking on common property, and provides examples of such action.

Affidavit of Mr Matthews

1. Mr Matthews is the building manager of the strata building, and has held that position since August 2022.
2. Attached to Mr Matthews affidavit are a number of documents, including the registered strata plan showing Lot property and common property.
3. Mr Matthews states that his duties as building manager include daily inspections of common property to ascertain whether by-laws are being complied with. He is aware of the By-laws of the strata building, including By-law 27.
4. According to Mr Matthews, there have been building works at the strata building that have reduced the number of available visitor parking spaces. That reduction is likely to increase in the near future as other significant maintenance and repair work to the building is planned.
5. Mr Matthews states that his normal work procedure is to conduct a "daily walk-through inspection of the car park," and if a vehicle is parked in the visitor parking space (which, in the underground carpark area is marked with the painted word "visitor") that he believes has been parked in contravention of By-law 27 he: 1. Photographs the vehicle (the photo is timestamped); 2. Places a "reminder notice" on the vehicle not to park in the visitor parking space. 3. If the same vehicle continues to park in the space, place another "reminder notice" on the vehicle (to a total of 3 "reminder notices" for the same vehicle). 4. If, after the third reminder notice the same vehicle continues to be parked in the visitor parking space, Mr Matthews "tracks down" the Lot owner or resident to "try to have a conversation with them to understand why they are parking in the visitor parking." 5. If the same vehicle continues to park in the visitors parking space, inform the strata committee of the breach of By-laws.
6. Mr Matthews states that is belief is that the respondents own or operate a black Mercedes van licence number DGB 57P.
7. Mr Matthews affidavit attaches registration records from Roads and Maritime Services and an ASIC Search.
8. The registration records for vehicle DGB 57P show that the registered owner of the vehicle during the relevant period was "Aus Asia Holiday Pty Ltd". The address of the registered owner is the same address as the respondents' Lot. The registration "contact" is identified as the second respondent, Ms Lu.
9. The ASIC search of Aus Asia Holiday Pty Ltd identifies the first respondent, Mr Zheng, as the sole director and secretary of the company. The principal place of business and registered office of the company is the same address as the respondent's Lot.
10. The affidavit of Mr Matthews states that he observed the black Mercedes van registration number DGB 57P parked on common property on the following occasions: 1. 3, 4, 5, 11, 16, and 30 January 2023. 2. 3 and 8 February 2023. 3. 2,19, and 23 May 2023. 4. 1, 7, 9, 15 and 21 June 2023. 5. The affidavit of Mr Matthews attaches time stamped and dated photographs depicting the black Mercedes van DGB 57P parked on the occasions and locations referred to by Mr Matthews.

DOCUMENTS OF THE RESPONDENT

1. As discussed previously, the respondents did not file and serve documentary evidence in accordance with Tribunal procedural directions.
2. At the hearing on 6 November 2023, Mr Zheng stated that he had "hundreds of photographs" he sought to rely upon. Those photographs purportedly showed other persons parking on common property. However, he did not bring a hard copy of those photographs to the Tribunal hearing, nor where the documents filed and served in accordance with procedural directions.
3. Mr Zheng did not seek an adjournment to adduce further evidence. However, if he had sought an adjournment, it would have been refused, applying the principles pertaining to adjournments set out in Touma v Colantuono [2021] NSWCATAP 152 at [56]-[58].
4. Not only had the respondents had a reasonable opportunity to file and serve such photographic evidence, the evidentiary relevance of such photographs to the issues of liability and penalty, if admitted, was negligible. Whether other persons parked on common property is entirely peripheral to whether the respondents had complied with the Notice to Comply with By-laws, just as a motorist breaking the speed limit cannot successfully argue they were legally justified in speeding because other motorists were speeding as well.

CONSIDERATION

1. Sections 146 and 147 of the SSM Act state as follows: 146 Notice by owners corporation to owner or occupier (1) An owners corporation for a strata scheme may give a notice, in a form approved by the Secretary, to the owner or occupier of a lot in the scheme requiring the owner or occupier to comply with a specified by-law if the owners corporation is satisfied that the owner or occupier has contravened that by-law. (2) The notice must contain a copy of the specified by-law. (3) A notice must not be given unless a resolution approving the issue of the notice, or the issue of notices for the type of contravention concerned, has first been passed by the owners corporation at a general meeting or by the strata committee of the owners corporation. (4) Subsection (3) does not apply - (a) to a strata scheme comprising 2 lots, or (b) if the notice is given by a strata managing agent to whom that function has been delegated in accordance with this Act 147 Civil penalty for breach of by-laws (1) The Tribunal may, on application by an owners corporation, order a person to pay a monetary penalty of up to 10 penalty units if the Tribunal is satisfied that - (a) the owners corporation gave a notice under this Division to the person requiring the person to comply with a by-law, and (b) the person has since contravened the by-law. (2) The Tribunal may, on application by an owners corporation, order a person to pay a monetary penalty of up to 20 penalty units if the Tribunal is satisfied that the person has contravened a by-law within 12 months after the Tribunal had imposed a monetary penalty on the person for a previous breach of the by-law. (3) Despite subsections (1) and (2), the Tribunal may, in dealing with a contravention of a by-law made under section 137, impose a monetary penalty of up to 50 penalty units under subsection (1) and a monetary penalty of up to 100 penalty units under subsection (2). (4) An application for an order under subsection (1) must be made not later than 12 months after the notice was given. (5) An owners corporation is not required to give notice under this Division before applying for an order under subsection (2). (6) A monetary penalty is payable to the owners corporation unless the Tribunal otherwise orders. Note - The penalty may be registered as a judgment debt and will be enforceable accordingly (see section 78 of the Civil and Administrative Tribunal Act 2013)
2. The Tribunal proceedings have been filed within 12 months of the date of the service of the Notice to Comply with By-law 27 (s 147(4) of the SSM Act).
3. The legal principles applicable to penalty proceedings under s 147 of the SSM Act were comprehensively set out in The Owners-Strata Plan No 84716 v Purcell [2023] NSWCATCD 97 (Purcell-in particular, at [62]-[80] and [145]-[152]). It is unnecessary to repeat that exposition of the applicable legal principles, but they are relevantly summarised as follows: 1. Rules of evidence apply. 2. If evidence is admitted, the standard of proof is on the balance of probabilities assessed in accordance with the principles in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. 3. Assessment of penalty can be determined in the same proceedings as assessment of liability. 4. In assessing penalty, the matters to be considered are: 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. The number of contraventions involved.

Was the Notice to Comply with By-law Validly Issued and Served?

1. The Tribunal is satisfied that the Notice to Comply With By-law dated 21 December 2022 was validly issued and served.
2. The strata committee of the owners corporation had resolved at a meeting for the strata manager to issue and serve the Notice; and if the Notice was not complied with, file proceedings in the Tribunal. Although the resolution refers to proceedings before a "Strata Schemes Adjudicator" the substance of the Motion makes clear that the intention is that if the Notice is not complied with, proceedings are to be taken in the Tribunal to seek a penalty if Mediation between the parties does not result in conduct that complies with the terms of the Notice.
3. Although the resolution passed at the meeting on 21 December 2022 refers to taking proceedings for "continued breaches" the Tribunal does not interpret those words as constituting a waiver of any rights of the owners corporation under s 147 of the SSM Act. Thus, the owners corporation can rely upon any failure of the respondents to comply with the Notice after the date it was duly served, not merely failure to comply after the date of Mediation between the parties at NSW Fair Trading. The Mediation is "unsuccessful" if the Tribunal is satisfied to the requisite standard of proof that the respondents did not abide by the terms of the agreement not to breach By-law 27.
4. The Notice dated 21 December 2022 was validly served. The evidence of Ms Clark, and the affidavit of service contained with the Notice, are sufficient to establish it was served by registered post to the respondent's Lot address. That is a satisfactory method of service under s 263(3)(a) of the SSM Act. By reason of s 76(1) of the Interpretation Act 1987 (NSW) and s 160(1) of the Evidence Act 1995 (NSW) the Notice was served 7 working days (i.e. excluding weekends and public holidays) from the date it was posted. 7 working days from 21 December 2022 is 4 January 2023.
5. The form of the Notice also complies with s 146 of the SSM Act. It clear sets out the By-law asserted to have been breached, identifies the breach, and the action to be taken to comply with the By-law. It also attaches a copy of By-law 27.

Was the Notice to Comply With By-Law Not Complied With?

1. The Tribunal is satisfied that the Notice to Comply With By-law was not complied with.
2. In that regard, although the Notice to Comply with By-law refers to 3 different vehicles, one of those vehicles was DGB 57P and the evidence regarding contravention only involves DGB 57P. The reference to more than one vehicle does not invalidate the Notice to Comply with By-law 27. However, in respect of assessment of liability and penalty, the reference to vehicles other than DGB 57P is not taken into account, because no evidence was provided that any vehicle operated by, or on behalf of, the respondents was being parked on common property at any relevant time.
3. The evidence of Mr Matthews (including the documentary evidence attached) is sufficient to be satisfied that the Mercedes van vehicle DGB 57P was driven by one or both of the respondents (or an employee of their company) and that the respondents caused or permitted the vehicle to be parked on common property on the times and dates identified in the affidavit of Mr Matthews. An inference can clearly be drawn that the respondents caused or permitted the vehicle to be parked on common property in breach of By-law 27 in circumstances where: 1. The company of which Mr Zheng is the sole director and secretary is the registered owner of the vehicle. 2. Ms Lu is the identified "contact person" on the NSW Roads and Maritime Services (RMS) registration records of the vehicle. 3. The address of the contact person of the vehicle on RMS registration records is the Lot address of the respondents. 4. Mr Matthews witnessed the vehicle parked on common property and took time and date stamped photographic evidence of the vehicle being parked on common property. 5. There was no evidence of the respondents to dispute that the vehicle had been parked on common property on the times and dates as set out in the evidence of Mr Matthews.
4. Accordingly, the owners corporation have established liability under s 147 of the SSM Act for a penalty to be imposed for failure to abide by the Notice to Comply with By-laws dated 21 December 2022.
5. The Tribunal is also satisfied that the respondents had no prior written consent of the owners corporation to park on common property.

Assessment of Penalty

1. From the date of service of the Notice to Comply with By-laws, there have been 14 events where the respondents have caused or permitted the Mercedes van vehicle to be parked on common property in contravention of By-law 27.
2. Penalty is imposed on the basis of a breach of the Notice to Comply with By-law 27; not on the basis that every event contravening By-law 27 occurring after the date of service of the Notice to Comply with By-law 27 gives rise to a separate penalty. One penalty is imposed for contravening the Notice to Comply with By-law 27. The number of events contravening By-law 27 are relevant to the amount of the single penalty to be imposed, but do not give rise to liability for separate penalties for contravening the Notice to Comply with By-law 27 (The Owners-Strata Plan No 4393 v Roberts [2023] NSWCATCD 57 at [138]-[157]).
3. The maximum penalty under s 147(1) of the SSM Act is 10 penalty units (i.e. $1,100).
4. The owners corporation submits that the Tribunal should impose the maximum penalty, because of the number of contraventions; the breaches after agreement made by the respondents at the Mediation that they would comply with By-law 27 is indicative of wilful non-compliance; and as a deterrent to other Lot owners or occupiers parking on common property in breach of By-law 27.
5. The submission of Mr Zheng was that the respondents had not parked on common property in recent times and that the owners corporation had unfairly 'targeted' the respondents by issuing the Notice to Comply with By-law 27 and having taken proceedings in the Tribunal.
6. There is no evidence to support the submission of the respondent that the owners corporation has acted in a manner that has 'singled out' or 'unfairly targeted' the respondents. The obligation to comply with the By-laws of the strata scheme applies to the respondents, irrespective of whether other Lot owners or occupants are in breach. There is no evidence to find that the owners corporation, through the strata committee, had acted in an unfair and unreasonable way such as permitting strata committee members to park on common property while only taking action against the respondents. Accordingly, it is unnecessary to consider whether (if such a finding was made) whether that would be a mitigating circumstance to take into account when assessing the appropriate penalty.
7. The Tribunal has no reason not to accept the evidence of the strata manager and building manager that the owners corporation does take action against Lot owners and occupants who park on common property in breach of By-law 27.
8. Accordingly, the subjective assertion of the respondents that the owners corporation has 'singled them out' in respect of the taking of penalty proceedings is not an established relevant mitigating factor.
9. However, a relevant consideration is that the 14 events in contravention of the Notice to Comply with By-law 27 have occurred over a period of approximately 6.5 months, and that the last proved contravention occurred on 21 June 2023. Only one contravention has been established after the owners corporation filed these proceedings in the Tribunal, and this occurred 2 days after proceedings were filed.
10. Weighing all of the relevant matters regarding imposition of penalty, the Tribunal is satisfied that a penalty of 5 penalty units ($550) is appropriate.
11. Under s 147(6) of the SSM Act, a monetary penalty is payable to the owners corporation unless the Tribunal otherwise orders. There is no reason to make an order that the penalty not be paid to the owners corporation.
12. It is appropriate that the respondents be jointly and severally liable to pay the penalty.

The Issue of Costs

1. The submissions of the owners corporation make clear a costs application will be made. As in Purcell, it is appropriate to deal with the issue of costs separately. The orders of the Tribunal contain procedural directions to facilitate the disposition of any costs application, if such an application is made in accordance with the orders and directions of the Tribunal.

ORDERS 1. The respondents Peng Zheng and Ning Lu are to pay the applicant The Owners Strata Plan No 92334 the amount of $550 by 14 days from the date of this decision. 2. The applicant is to file with the Tribunal and serve on the respondents, by person or by post and additionally by email, all costs submissions and documents by 14 days from the date of this decision. 3. The respondents are to file with the Tribunal and serve on the applicant by person or by post and additionally by email all costs submissions and documents by 28 days from the date of this decision. 4. The applicant is to file with the Tribunal and serve on the respondents by person or by post and additionally by email, all costs submissions in reply by 35 days from the date of this decision. 5. The costs submissions of the parties are to identify whether or not they consent to the issue of costs being determined without a further oral hearing and if not, why an oral hearing on the issue of costs is necessary. 6. Subject to consideration of the costs submissions of the parties the Tribunal may determine the issue of costs on the papers and without a further oral hearing in accordance with s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW). 7. If a party seeks an extension of time to comply with directions regarding costs submissions, an application should be made in writing to the Tribunal no later than the day prior to the date for compliance with the timetable obligation. 8. All parties are to ensure that a copy of their costs submissions and documents are filed with the Tribunal in hard copy in compliance with the procedural directions pertaining to the costs application.

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: 13 August 2024