Buzrio Pty Limited v Consumer, Trader And Tenancy Tribunal [No. 2] [2009] NSWSC 937

Buzrio Pty Limited v Consumer, Trader And Tenancy Tribunal [No. 2] [2009] NSWSC 937

The interim order of 25 August 2009 was quashed because the Adjudicator purported to exercise jurisdiction that he did not have: the substantive application for appointment of a strata managing agent had already been referred to and was before the Tribunal. The order was also made without procedural fairness, as no required notice was given to the Plaintiff or lot owners despite the earlier Supreme Court judgment. Section 65(3) of the Consumer, Trader and Tenancy Tribunal Act 2001 permitted relief on both grounds. Given the history of orders and the Tribunal's willingness to make orders contrary to the limits identified by the Court, prohibition was justified.

Jurisdiction
Australia
Judgment Date
09 September 2009
Procedural Posture
Administrative Law Judicial Review Proceedings Seeking Certiorari and Prohibition Concerning Consumer, Trader and Tenancy Tribunal Strata Scheme Orders / Final Hearing of Summons Before the Supreme Court of New South Wales, Common Law Division
Outcome
The Plaintiff obtained relief; the interim order was removed into the Supreme Court and quashed, and prohibition was granted against further s 170 applications or orders concerning the specified Tribunal application.
Legal Topics
['consumer, Trader and Tenancy Tribunal' 'interim Strata Managing Agent Appointment' 'procedural Fairness' 'jurisdictional Error' 'certiorari' 'prohibition']
['administrative Law' 'strata Schemes' 'civil Procedure'] ['consumer, Trader and Tenancy Tribunal' 'interim Strata Managing Agent Appointment' 'procedural Fairness' 'jurisdictional Error' 'certiorari' 'prohibition']

Case Brief

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Procedural Posture

Administrative Law Judicial Review Proceedings Seeking Certiorari and Prohibition Concerning Consumer, Trader and Tenancy Tribunal Strata Scheme Orders / Final Hearing of Summons Before the Supreme Court of New South Wales, Common Law Division

Legal Issues

  1. 1 ['Whether the Adjudicator had jurisdiction to make the interim order of 25 August 2009 under s 170 of the Strata Schemes Management Act 1996 after the substantive application had been referred to the Tribunal under s 164.' 'Whether the interim order should be quashed because it was made ex parte without notice to the Plaintiff and lot owners and therefore denied procedural fairness.' 'Whether prohibition should issue to prevent the Tribunal or any Adjudicator from entertaining further applications or making further orders under s 170 in relation to the substantive application.']

Ratio Decidendi

The interim order of 25 August 2009 was quashed because the Adjudicator purported to exercise jurisdiction that he did not have: the substantive application for appointment of a strata managing agent had already been referred to and was before the Tribunal. The order was also made without procedural fairness, as no required notice was given to the Plaintiff or lot owners despite the earlier Supreme Court judgment. Section 65(3) of the Consumer, Trader and Tenancy Tribunal Act 2001 permitted relief on both grounds. Given the history of orders and the Tribunal's willingness to make orders contrary to the limits identified by the Court, prohibition was justified.

Court Disposition

The Plaintiff obtained relief; the interim order was removed into the Supreme Court and quashed, and prohibition was granted against further s 170 applications or orders concerning the specified Tribunal application.

Orders

  • ['The interim order made by the Consumer, Trader and Tenancy Tribunal on 25 August 2009 in Tribunal Proceedings No SCS 09/39022 be removed into this Court and quashed.' 'The Consumer, Trader and Tenancy Tribunal and any Adjudicator thereof is prohibited from entertaining any further applications or making any...