Nelson v The Owners – Strata Plan No.49504; The Owners – Strata Plan No.49504 v Nelson [2020] NSWCATAP 194

Nelson v The Owners – Strata Plan No.49504; The Owners – Strata Plan No.49504 v Nelson [2020] NSWCATAP 194

Time for Ms Nelson's appeal was extended because the delay was minimal, she was self-represented, a stay application had been made in time, and no relevant prejudice was shown. Leave to appeal and the appeals were otherwise dismissed because the cats were kept without approval contrary to by-law 16, there was no evidence that they met the statutory requirements for assistance animals, Ms Nelson had not challenged the owners corporation's refusal under s 157, and no error was shown in the removal order. The costs appeal failed because the Tribunal applied s 60, considered the relevant factors, and was entitled to find no special circumstances warranting a costs order.

Jurisdiction
Australia
Judgment Date
18 September 2020
Procedural Posture
Appeals From Civil and Administrative Tribunal of New South Wales, Consumer and Commercial Division Decision Concerning Strata by Law Animal Removal and Costs / Appeal Panel; Leave to Appeal
Outcome
Leave to file AP 20/26058 was extended, but leave to appeal was refused in both appeals, both appeals were otherwise dismissed, and no costs order was made.
Legal Topics
['contravention of Strata by Law' 'failure to Comply With Notice to Remove Animals' 'order for Removal of Animals Under Strata Schemes Management Act 2015 (nsw)' 'costs Under Civil and Administrative Tribunal Act 2013 (nsw)' 'leave to Appeal' 'assistance Animals']
['land Law' 'strata Title' 'practice and Procedure'] ['contravention of Strata by Law' 'failure to Comply With Notice to Remove Animals' 'order for Removal of Animals Under Strata Schemes Management Act 2015 (nsw)' 'costs Under Civil and Administrative Tribunal Act 2013 (nsw)' 'leave to Appeal' 'assistance Animals']

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Procedural Posture

Appeals From Civil and Administrative Tribunal of New South Wales, Consumer and Commercial Division Decision Concerning Strata by Law Animal Removal and Costs / Appeal Panel; Leave to Appeal

Legal Issues

  1. 1 ['Whether time should be extended for Ms Nelson to file appeal AP 20/26058.' "Whether the Tribunal erred in ordering removal of Ms Nelson's two cats kept without owners corporation approval under by-law 16." "Whether Ms Nelson's cats were assistance animals such that the by-law had no force or effect under s 139(5) of the Strata Schemes Management Act 2015 (NSW)." "Whether the Tribunal erred in dismissing the owners corporation's costs application for lack of special circumstances under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW)." 'Whether leave to appeal should be granted in either appeal.']

Ratio Decidendi

Time for Ms Nelson's appeal was extended because the delay was minimal, she was self-represented, a stay application had been made in time, and no relevant prejudice was shown. Leave to appeal and the appeals were otherwise dismissed because the cats were kept without approval contrary to by-law 16, there was no evidence that they met the statutory requirements for assistance animals, Ms Nelson had not challenged the owners corporation's refusal under s 157, and no error was shown in the removal order. The costs appeal failed because the Tribunal applied s 60, considered the relevant factors, and was entitled to find no special circumstances warranting a costs order.

Court Disposition

Leave to file AP 20/26058 was extended, but leave to appeal was refused in both appeals, both appeals were otherwise dismissed, and no costs order was made.

Orders

  • ['Leave to file appeal AP 20/26058 is extended to 16 June 2020.' 'In respect of appeal AP 20/26058, leave to appeal is refused and the appeal is otherwise dismissed.' 'In respect of appeal AP 20/32367, leave to appeal is refused and the appeal is otherwise dismissed.' 'The Appeal Panel makes no order for costs.']