Bruce v Knight [2021] NSWCATAP 224

Bruce v Knight [2021] NSWCATAP 224

The Tribunal misstated and misapplied the governing principles under s 149 of the Strata Schemes Management Act 2015 (NSW) by treating its review as confined to the material available to owners at the time of refusal and by appearing to equate reasons with circumstances. The correct inquiry required assessment of unreasonable refusal by reference to the circumstances known at or prior to the resolution, while allowing subsequent evidence that proved, disproved or objectively coloured those circumstances. Because the Tribunal did not apply that approach and did not adequately address relevant evidence from lot owners, the appeal had to be allowed and the matter remitted.

Jurisdiction
Australia
Judgment Date
23 July 2021
Procedural Posture
Internal Appeal From a Consumer and Commercial Division Strata Schemes Decision / Appeal Panel Decision
Outcome
Appeal allowed; Tribunal orders set aside; proceedings remitted to a differently constituted Tribunal for a new hearing and redetermination.
Legal Topics
['common Property Rights by Law' 'exclusive Use of Common Property' 'unreasonable Refusal to Consent' 'error of Law on Appeal' 'remittal for New Hearing']
['land Law' 'strata Title' 'administrative Law'] ['common Property Rights by Law' 'exclusive Use of Common Property' 'unreasonable Refusal to Consent' 'error of Law on Appeal' 'remittal for New Hearing']

Case Brief

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Procedural Posture

Internal Appeal From a Consumer and Commercial Division Strata Schemes Decision / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether the Tribunal erred in determining unreasonable refusal under s 149(1)(a) of the Strata Schemes Management Act 2015 (NSW) only by reference to reasons for refusal advanced by some lot owners at the time of refusal.' 'Whether the Tribunal erred by disregarding reasons or material not articulated by lot owners at the time of refusal.' 'Whether the Tribunal misstated or misapplied the principle that reasonableness is assessed by reference to circumstances at or prior to the passing of the relevant resolution.' 'Whether the Tribunal erred in relation to the onus of proving unreasonable refusal.' 'Whether the Tribunal failed to consider evidence and reasons concerning prior kitchen renovations, loss of amenity, and matters relevant under s 149(2) of the Strata Schemes Management Act 2015 (NSW).']

Ratio Decidendi

The Tribunal misstated and misapplied the governing principles under s 149 of the Strata Schemes Management Act 2015 (NSW) by treating its review as confined to the material available to owners at the time of refusal and by appearing to equate reasons with circumstances. The correct inquiry required assessment of unreasonable refusal by reference to the circumstances known at or prior to the resolution, while allowing subsequent evidence that proved, disproved or objectively coloured those circumstances. Because the Tribunal did not apply that approach and did not adequately address relevant evidence from lot owners, the appeal had to be allowed and the matter remitted.

Court Disposition

Appeal allowed; Tribunal orders set aside; proceedings remitted to a differently constituted Tribunal for a new hearing and redetermination.

Orders

  • ['The appeal is allowed.' 'The orders made by the Tribunal on 21 January 2021 in SC 20/26294 are set aside.' "The whole of the proceedings be remitted to a differently constituted Tribunal for a new hearing and redetermination of the respondent's application in accordance with the evidence previously adduced to the...