Bischoff & Ors v Rita Sahade & Anr [2015] NSWCATAP 135

Bischoff & Ors v Rita Sahade & Anr [2015] NSWCATAP 135

The Appeal Panel has jurisdiction to hear an appeal from a Tribunal decision made under section 184 of the Strata Schemes Management Act 1996, as such a decision is made in the Tribunal's general jurisdiction and is internally appealable. While there was evidence to justify the finding that the management structure was not functioning satisfactorily, procedural fairness required the parties be given an opportunity to be heard before a two-year appointment was made when only one year had been sought. The failure to do so was an error warranting variation of the order.

Jurisdiction
Australia
Judgment Date
08 July 2015
Procedural Posture
Internal Appeal / Appeal Panel Decision
Outcome
Appeal allowed; orders varied
Legal Topics
['appointment of Strata Managing Agent' 'jurisdiction of Appeal Panel' 'joinder of Party' 'procedural Fairness' 'functions of Management Structure in Strata Schemes']
['strata Law' 'administrative Law'] ['appointment of Strata Managing Agent' 'jurisdiction of Appeal Panel' 'joinder of Party' 'procedural Fairness' 'functions of Management Structure in Strata Schemes']

Case Brief

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Procedural Posture

Internal Appeal / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether Ms Gilster should be joined as an appellant to this appeal' 'Whether the Appeal Panel has jurisdiction to hear and determine an appeal from an order appointing a strata managing agent following referral under s164 of the Strata Schemes Management Act' 'Whether the Tribunal erred in appointing a strata managing agent under section 162 of the Strata Schemes Management Act and in making orders for a two-year term']

Ratio Decidendi

The Appeal Panel has jurisdiction to hear an appeal from a Tribunal decision made under section 184 of the Strata Schemes Management Act 1996, as such a decision is made in the Tribunal's general jurisdiction and is internally appealable. While there was evidence to justify the finding that the management structure was not functioning satisfactorily, procedural fairness required the parties be given an opportunity to be heard before a two-year appointment was made when only one year had been sought. The failure to do so was an error warranting variation of the order.

Court Disposition

Appeal allowed; orders varied

Orders

  • ['Carina Gilster is joined as third appellant.' 'The appeal is allowed.' 'Order 2 made by the Tribunal on 9 April 2014 is varied to provide for the appointment of Melandiro Pty Ltd t/as Irvine Strata Management as strata managing agent of Strata Plan 62022 for the period 28 April 2014 to 6 July 2015.' 'Any...