The importance of correctly serving levy notices

In this case the NSW Court of Appeal left undisturbed the Supreme Court’s earlier decision that a lot owner had been properly served with notice of levies and was therefore liable to pay.

Before the Supreme Court, the lot owner, Mr Chua, claimed he never received the levy notice.

The issue was whether or not Mr Chua was served with a written notice of the special levy in accordance with the Strata Schemes Management Act 1996. Service was imperative as it was an essential element of Mr Chua’s liability to pay the special levy. Section 78(1) requires that written notice of the levy payable be served upon a lot owner.

The strata roll listed Mr Chua’s address as his lot in Strata Plan 40301 and the strata manager gave evidence that the notice was posted to that address as part of their office procedure of issuing notices to addresses listed on the strata roll. The Owners Corporation claimed that the notice was properly served upon Mr Chua as service by post to the address listed for an owner in the strata roll is sufficient service in accordance with Section 236(3) of the Strata Schemes Management Act.

Ultimately, the Court held that the Supreme Court’s decision that Mr Chua had been properly served with the notice and was therefore liable to pay was a question of fact, not law, and therefore not a decision that could be reviewed by the Court of Appeal. Leave to appeal was refused.

Whilst this particular appeal was refused as a result of the grounds upon which the appeal was made, it is a reminder just how important it is for all Owners Corporations serve levy notices strictly in accordance with the provisions of the Strata Schemes Management Act. A strata managing agent may one day be called to give evidence as to precisely how they came to serve the notice: a well recorded and consistent office procedure when it comes to issuing levy notices is vital for any managing agent.