Abraham v SP61419: standing to bring s237 appeals

Abraham v The Owners – Strata Plan No 61419 [2024] NSWCATAP 21

In short

• An owner, not party to the first instance proceedings, does not have standing to appeal against a compulsory appointment.

• An owner who opposes an order for a compulsory appointment may seek to be joined to preserve a right of appeal.

Background

The facts are ordinary but give rise to an interesting legal query. At first instance, lot owners A brought an application in the Tribunal against the owners corporation seeking the compulsory appointment of a strata managing agent with full authority.

Lot owner B effectively instructed the owners corporation in the defence proceedings. The applicants were successful and an order was made for compulsory appointment.

Lot owner B sought to appeal the decision by way of filing a notice of appeal in the name of the collective owners on behalf of the owners corporation.

The appeal was not authorised or endorsed by the owners corporation through its compulsorily appointed strata managing agent.

The law

Section 80(1) of the Civil and Administrative Tribunal Act 2013 provides that an appeal to an internally appealable decision may be made to the Appeal Panel by a party to the proceedings in which the decision is made.

The issue

The issue is essentially how, as a matter of legal practice and procedure, an owners corporation can appeal a decision of the Tribunal appointing a compulsory strata managing agent with all of the powers of the owners corporation.

It is unheard of for a strata managing agent to decide, by way of delegated authority, to appeal the orders appointing them — particularly in circumstances where they provide written consent to the appointment.

Decision

The Appeal Panel relevantly surmised that lot owners who disagree with the proposed compulsory appointment of a strata manager may:

1. seek to be joined to the proceedings, before a decision is delivered, to preserve a right of appeal;

2. seek that any order granting relief carve out the functions of instituting an appeal from the scope of the compulsorily appointed manager;

3. apply to the Tribunal to vary the order to make such an order carving out those functions;

4. seek leave from the Supreme Court to commence a derivative action in the name of the owners corporation; and

5. before the order is made, ask the Tribunal to delay the operation of the order to allow an appeal to be commenced and the order stayed.

The Appeal Panel found that the proceedings were not validly instituted and dismissed the appeal as incompetent.

See related: The Owners – Strata Plan 2010 v Kahn [2022] NSWCATAP 9