Owners Corporation SP 72521 v Walsh [2016] NSWSC 1134

Owners Corporation SP 72521 v Walsh [2016] NSWSC 1134

Member Cohen's decision dismissing the Owners Corporation's appeal from the adjudicator was made in an external appeal under ss 177 and 181 of the Strata Schemes Management Act 1996 (NSW). It was not transformed into a s 185 decision by the use of the word 'misconceived'. The Owners Corporation therefore had a competent avenue, subject to leave, to appeal to the Supreme Court on a question of law under s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW). The Court declined to transfer the matter to the Appeal Panel and held that Sch 4 cl 5(3) did not exclude jurisdiction in respect of the s 83 application.

Jurisdiction
Australia
Judgment Date
05 August 2016
Procedural Posture
Notice of Motion Seeking Refusal of Leave, Summary Dismissal of an Appeal, or Transfer to the Appeal Panel of the Civil and Administrative Tribunal / Supreme Court Determination of Defendants' Notice of Motion Filed 21 June 2016
Outcome
Defendants' notice of motion dismissed.
Legal Topics
['competence of Appeal From Civil and Administrative Tribunal' 'external Appeal and Internal Appeal Distinction' 'leave to Appeal on a Question of Law Under S 83(1) of the Civil and Administrative Tribunal Act 2013 (nsw)' 'transfer to Appeal Panel' 'exclusion of Court Jurisdiction']
['practice and Procedure' 'strata Schemes' 'administrative Law'] ['competence of Appeal From Civil and Administrative Tribunal' 'external Appeal and Internal Appeal Distinction' 'leave to Appeal on a Question of Law Under S 83(1) of the Civil and Administrative Tribunal Act 2013 (nsw)' 'transfer to Appeal Panel' 'exclusion of Court Jurisdiction']

Case Brief

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Procedural Posture

Notice of Motion Seeking Refusal of Leave, Summary Dismissal of an Appeal, or Transfer to the Appeal Panel of the Civil and Administrative Tribunal / Supreme Court Determination of Defendants' Notice of Motion Filed 21 June 2016

Legal Issues

  1. 1 ["Whether the Owners Corporation's proposed appeal to the Supreme Court under s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) was competent." "Whether Member Cohen's decision was made in an external appeal from an adjudicator under ss 177 and 181 of the Strata Schemes Management Act 1996 (NSW) or under s 185 of that Act." 'Whether the proceeding should be transferred to the Appeal Panel of the Tribunal under cl 6 of Sch 4 to the Civil and Administrative Tribunal Act 2013 (NSW).' "Whether cl 5(3) of Sch 4 to the Civil and Administrative Tribunal Act 2013 (NSW) excluded the Supreme Court's jurisdiction."]

Ratio Decidendi

Member Cohen's decision dismissing the Owners Corporation's appeal from the adjudicator was made in an external appeal under ss 177 and 181 of the Strata Schemes Management Act 1996 (NSW). It was not transformed into a s 185 decision by the use of the word 'misconceived'. The Owners Corporation therefore had a competent avenue, subject to leave, to appeal to the Supreme Court on a question of law under s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW). The Court declined to transfer the matter to the Appeal Panel and held that Sch 4 cl 5(3) did not exclude jurisdiction in respect of the s 83 application.

Court Disposition

Defendants' notice of motion dismissed.

Orders

  • ["The defendants' notice of motion filed 21 June 2016 is dismissed." "The defendants are to pay the plaintiff's costs of the notice of motion."]