In strata disputes, proper service of notices is a fundamental legal requirement that determines whether penalties can be imposed on lot owners for breach of by-laws. The case of The Owners – Strata Plan No. 84716 v Purcell [2023] NSWCATCD 97 highlights the importance of strict adherence to service requirements under the Strata Schemes Management Act 2015 (NSW) (SSM Act). This article explores the Tribunal’s findings in the case, the legal principles governing service of notices, and key lessons for strata managers and owner corporations.
Background
The dispute arose when the owners corporation (The Owners – Strata Plan No. 84716) sought penalties against lot owner Delmont Purcell for breaching several strata by-laws, including:
- By-law 5 (Damage to common property),
- By-law 7 (Behaviour of owners and occupiers), and
- By-law 10 (Depositing rubbish on common property).
The Tribunal had to determine whether the notices issued by the owners corporation were properly served, as this was a prerequisite for imposing penalties under Section 147 of the SSM Act.
Legal Requirements for Serving Notices
Under Section 263 of the SSM Act, a Notice to Comply with By-laws must be served in one of the legally prescribed ways:
- On an occupier (e.g., tenant):
- By post to the lot’s address;
- By leaving it with someone aged 16 or older at the lot’s address; or
- By email if the occupier has provided an email address for service.
- On an owner:
- By post to the address recorded in the strata roll;
- By leaving it with someone aged 16 or older at that address;
- By email if an email address has been provided; or
- If no address is recorded, by personal service or placing it in the owner’s mailbox at the lot.
Failure to comply with these provisions may render the notice invalid and unenforceable.
Tribunal’s Findings on Service
The owners corporation issued two sets of Notices to Comply against Purcell:
- Notice dated 12 January 2022; and
- Notice dated 28 October 2022.
Regarding the 12 January 2022 notice, the strata manager, Mr O’Neill, claimed he served these notices by placing them in Purcell’s letterbox. However, the Tribunal found:
- The owners corporation failed to provide evidence that this method complied with Section 263 of the SSM Act;
- The strata roll was not submitted as evidence, meaning there was no proof of Purcell’s recorded service address; and
- While Purcell later acknowledged receipt, the Tribunal ruled that actual receipt does not cure defective service.
Regarding the 28 October 2022 notice, the owners corporation’s lawyers served these notices via:
- Post to Purcell’s registered address (consistent with Section 263(3)(a)); and
- Email (which was not contested by Purcell).
The Tribunal applied s 76(1)(b) of the Interpretation Act 1987 (NSW), which states that a document sent by post is deemed served on the seventh working day after posting. As a result, the Tribunal found that the notice was properly served on 3 November 2022.
Lessons on Proper Service
The case underscores the following critical lessons for strata managers and owners corporations:
- Notices must be served strictly in accordance with the law;
- If service is defective, a Tribunal cannot impose penalties, even if the recipient admits to receiving the notice
- To prove service, you will require evidence of the strata roll for the owner’s registered address; postal receipt; affidavit of service; and email records.
If you have concerns regarding your strata managing agent, we invite you to reach out to us for expert legal advice and support. Our experienced team is dedicated to helping you assert your rights and ensure your interests are fully protected within the strata scheme.
If you are interested in discussing your situation, please contact our office for a free consultation at (02) 9262 5495 or contact Mr Murdock at dmurdock@mclp.com.au, or subscribe to our newsletter by visiting https://mclp.com.au/publications/