Felcher v The Owners – Strata Plan No 2738 [2017] NSWCATAP 219

Felcher v The Owners – Strata Plan No 2738 [2017] NSWCATAP 219

The appellant identified no arguable error of law and did not show a basis for leave to appeal. The Tribunal was entitled to decide the strata noise application on the evidence presented, and the appellant bore the burden of proving his case. His uncorroborated personal account of noise, without probative evidence such as expert, photographic, documentary or other cogent evidence demonstrating unreasonable noise transmission or breach of the Act or by-laws, did not establish that the Tribunal's dismissal was unfair, inequitable, against the weight of evidence, or affected by a substantial miscarriage of justice. No issue of principle, public importance, clear injustice, central plain...

Jurisdiction
Australia
Judgment Date
29 November 2017
Procedural Posture
Appeal From Decision of the Consumer and Commercial Division of the Civil and Administrative Tribunal in a Strata Schemes Management Dispute / Leave to Appeal and Appeal Before Appeal Panel
Outcome
Leave to appeal is refused and the appeal is dismissed.
Legal Topics
['leave to Appeal' 'question of Law' 'substantial Miscarriage of Justice' 'strata by Laws' 'noise Transmission Between Lots' 'burden of Proof' 'weight of Evidence']
['strata Schemes' 'civil Procedure' 'administrative Law'] ['leave to Appeal' 'question of Law' 'substantial Miscarriage of Justice' 'strata by Laws' 'noise Transmission Between Lots' 'burden of Proof' 'weight of Evidence']

Case Brief

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Procedural Posture

Appeal From Decision of the Consumer and Commercial Division of the Civil and Administrative Tribunal in a Strata Schemes Management Dispute / Leave to Appeal and Appeal Before Appeal Panel

Legal Issues

  1. 1 ["Whether the appellant identified an arguable error of law in the Tribunal's decision dismissing his strata application." 'Whether leave to appeal should be granted on the basis that the decision was not fair and equitable or was against the weight of evidence.' 'Whether the Tribunal erred by deciding the application on the evidence presented rather than itself investigating the installation of the floating floor and underlay.' 'Whether the appellant had provided probative evidence that the floating floor allowed an unreasonable amount of noise to penetrate his lot or that the respondents breached the Strata Schemes Management Act or by-laws.']

Ratio Decidendi

The appellant identified no arguable error of law and did not show a basis for leave to appeal. The Tribunal was entitled to decide the strata noise application on the evidence presented, and the appellant bore the burden of proving his case. His uncorroborated personal account of noise, without probative evidence such as expert, photographic, documentary or other cogent evidence demonstrating unreasonable noise transmission or breach of the Act or by-laws, did not establish that the Tribunal's dismissal was unfair, inequitable, against the weight of evidence, or affected by a substantial miscarriage of justice. No issue of principle, public importance, clear injustice, central plain...

Court Disposition

Leave to appeal is refused and the appeal is dismissed.

Orders

  • ['Leave to appeal be refused.' 'The appeal is dismissed.']