2. Who can commence proceedings


Applicants will need to check the Strata Schemes Development Act 2015 (NSW) and if necessary obtain legal advice to find out:

  • who may commence proceedings;
  • the circumstances in which an application to commence proceedings can be made;
  • the time within which an application to commence proceedings must be made; and
  • who must be provided with a copy of the application to commence proceedings after it has been filed in the registry.

The table below provides some information as to the potential parties to be named in proceedings. It is advisable for prospective applicants to obtain legal advice to determine whether they can start the case and the relevant participants in different proceedings.  Sections 18 and 19 of the Land and Environment Court Act 1979 (NSW) indicate the relevant part or section of the Strata Schemes Development Act 2015 (NSW) under which proceedings can be lodged in the Land and Environment Court.

Who can commence proceedings and which parties should be named as respondents in proceedings?

Proceedings in Class 2

Type of ProceedingWho can be the applicant in the proceedingsWho should be named as the respondent
 s 66 Appeal
  • the person who was the applicant in the application for a strata certificate made to the local council
  • The local council to whom the application for a strata certificate was made
s 85 Appeal
  • the person who was the applicant for an amendment of a strata development contract
  • The planning authority to whom the application for amendment of a strata development contract has been made
 s 86 Proceeding
  • the person who was the applicant for an amendment of a strata development contract made to a planning authority
  • No person needs to be named as a respondent in the application commencing proceedings.
  • However, the following people must be personally served with the application:
    (a)  each owner of a lot in the strata scheme, other than the developer,
    (b)  each person, other than the applicant, who is the owner of a development lot,
    (c)  each registered mortgagee, chargee, covenant chargee and lessee of a lot in the scheme,
    (d)  if the strata scheme is a leasehold strata scheme—the lessor (unless the lessor is the developer),
    (e)  the owners corporation,
    (f)  the planning authority.

     
  • These persons are entitled to become respondents in the proceedings (see s 86(4)).

s 92 Proceeding

 

  • any person bound by a strata development contract
  • No person needs to be named as a respondent in the application commencing proceedings.
  • However, the following people must be personally served with the application:
    (a)  the developer,
    (b)  each owner of a lot in the strata scheme, other than the developer,
    (c)  each registered mortgagee, chargee, covenant chargee and lessee of a lot in the scheme,
    (d)  if the strata scheme is a leasehold strata scheme—the lessor (unless the lessor is the developer),
    (e)  the owners corporation,
    (f)  the planning authority,
    (g)  the Registrar-General.

     
  • These persons are entitled to become respondents in the proceedings (see s 92(3)).


Proceedings in Class 3

Type of ProceedingPotential Applicant(s)Potential Respondent(s)
 s 179 Proceeding
  • the owners corporation seeking an order to give effect to a strata renewal plan for the collective sale or redevelopment of a strata scheme
  • No person need be named as a respondent in the application commencing proceedings.
  • However, the following persons must be personally served with the application (see s 179(2)):
    (a)  each owner of a lot in the strata scheme, and
    (b)  each registered mortgagee or covenant chargee of a dissenting owner's lot, and
    (c)  if the strata renewal plan is for a collective sale of a strata scheme—the proposed purchaser (if known), and
    ​(d)  if the strata renewal plan is for a redevelopment of a strata scheme—the local council and the proposed developer (if known)

     
  • The above persons are permitted to file an objection without becoming a respondent (including a dissenting owner or a person that must be served with an application under s 179(2)): see s 180(1)).
  • An objector to the application is permitted to apply to the Court to be joined as a respondent (see s 181(6)(a)).
  • The Court can also direct other persons to be respondents in the proceedings (see s 181(6)(b)).