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4. What to do if you have been provided with a Class 2 Application under s86 or s92

If you have been served with an application in Class 2 of the Court's jurisdiction, and the application relates to proceedings under ss 86 or 92 of the Strata Schemes Development Act 2015 (NSW), you are probably one of the following persons:

  • the developer,
  • an owner of a lot in the strata scheme
  • a registered mortgagee, chargee, covenant chargee and lessee of a lot in the scheme,
  • the lessor if the strata scheme is a leasehold strata scheme,
  • the owners corporation,
  • the planning authority, or
  • the Registrar-General,

 

If so, you can either:

(a)  choose not to participate in the case at all; or

(b)  become a respondent to the proceedings.

Before making a decision, you should get your own legal advice.

If you become a respondent, you will be required to attend or be legally represented each time the case is in court, including at the directions hearing, at any conciliation or mediation, and at the final hearing. By becoming a respondent, you will be able to file evidence in response to the case and make submissions in the case. It may also mean that, in certain circumstances, you can appeal against the outcome of the case if you disagree with it.

However, you should carefully consider any decision to become a respondent to the proceedings. If you do become a respondent, this exposes you to the possibility of costs orders being made against you if the Court considers it fair and reasonable to make such an order. Such orders may require you to pay the costs of the legal representatives of the other parties, even if you are not legally represented yourself.

 

Type of ProceedingPersons who can become a respondentHow do I become a respondent?
s 86 Proceeding

s 86(3) of the Act outlines who must be served with an application in s 86 proceedings:

(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, and

(f)  the planning authority.

A party served with an application is entitled to become a respondent in the proceedings.

To become a respondent, a Notice of Appearance is to be filed with the Court and served on the parties to the proceedings.

The Notice of Appearance must be filed before the return date specified on the Application in the 'hearing details'.

s 92 Proceeding

 

Section 92(2) of the Act outlines who must be served with an application in s 92 proceedings:

(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, and

(h) any other person directed by the court.

 

A party served with an application is entitled to become a respondent in the proceedings.

To become a respondent, a Notice of Appearance is to be filed with the Court and served on the parties to the proceedings.

The Notice of Appearance must be filed before the return date specified on the Application in the 'hearing details'.