Schrader v Owners Strata Plan No 12449 [2008] NSWSC 117

Schrader v Owners Strata Plan No 12449 [2008] NSWSC 117

Section 189 of the Strata Schemes Management Act 1996 did not authorise repeated s 183 applications on the same ground; it allowed later applications only where changed circumstances enlivened another s 183(2) ground. The 2004 CTTT decision finally determined the same dispute between, in effect, the same parties before a competent tribunal, including because Mr Schrader submitted to the Tribunal's jurisdiction and received a hearing on the merits. The elements of res judicata were therefore present, and the 2007 Tribunal made no error of law in refusing to hear the application.

Jurisdiction
Australia
Judgment Date
28 February 2008
Procedural Posture
Appeal From Consumer, Trader and Tenancy Tribunal of NSW / Principal Judgment
Outcome
Appeal dismissed; Tribunal order affirmed; summons dismissed; plaintiff ordered to pay defendants' costs as agreed or assessed.
Legal Topics
['cttt Appeal' 'res Judicata' 'unit Entitlement Reallocation' 'variation or Revocation of Tribunal Orders' 'jurisdictional Error']
['administrative Law' 'strata Schemes'] ['cttt Appeal' 'res Judicata' 'unit Entitlement Reallocation' 'variation or Revocation of Tribunal Orders' 'jurisdictional Error']

Case Brief

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Procedural Posture

Appeal From Consumer, Trader and Tenancy Tribunal of NSW / Principal Judgment

Legal Issues

  1. 1 ['Whether the doctrine of res judicata applied to proceedings under Part 5 of the Strata Schemes Management Act 1996 seeking reallocation of unit entitlements.' 'Whether s 189 of the Strata Schemes Management Act 1996 displaced res judicata for a fresh application under s 183.' 'Whether the 2004 CTTT revocation decision under s 191 was made in jurisdictional error and of no legal effect.' "Whether the 2007 Tribunal had jurisdiction to hear Mr Schrader's further application or set aside the 2004 decision."]

Ratio Decidendi

Section 189 of the Strata Schemes Management Act 1996 did not authorise repeated s 183 applications on the same ground; it allowed later applications only where changed circumstances enlivened another s 183(2) ground. The 2004 CTTT decision finally determined the same dispute between, in effect, the same parties before a competent tribunal, including because Mr Schrader submitted to the Tribunal's jurisdiction and received a hearing on the merits. The elements of res judicata were therefore present, and the 2007 Tribunal made no error of law in refusing to hear the application.

Court Disposition

Appeal dismissed; Tribunal order affirmed; summons dismissed; plaintiff ordered to pay defendants' costs as agreed or assessed.

Orders

  • ['The order of Tribunal Member A Borsody dated 10 July 2007 is affirmed.' 'The appeal is dismissed.' 'The summons filed 17 August 2007 is dismissed.' "The plaintiff is to pay the defendants' costs as agreed or assessed."]