Spicer v Owners Corporation SP 64558 [2016] NSWCATAP 11

Spicer v Owners Corporation SP 64558 [2016] NSWCATAP 11

The Tribunal's original order dismissing the proceedings was made without power as it relied on s 55(1)(a) of the NCAT Act instead of s 28(5)(h) of the CTTT Act. The correct order upon withdrawal is that the proceedings are withdrawn on the application of the applicant, not an order for dismissal under the Strata Schemes Management Act. There was no power to make a costs order under s 192 of the Strata Schemes Management Act 1996 because the application was not dismissed as misconceived and there was no investigation or hearing. The appeal was allowed only to correct the procedural error; costs orders and relief from levies were not granted.

Jurisdiction
Australia
Judgment Date
13 January 2016
Procedural Posture
Civil Appeal / Appeal Panel Decision
Outcome
Appeal allowed in respect of order 1; otherwise dismissed.
Legal Topics
['strata Schemes' 'costs' 'withdrawal of Application' 'unit Entitlements' 'tribunal Procedure']
['property Law' 'civil Procedure'] ['strata Schemes' 'costs' 'withdrawal of Application' 'unit Entitlements' 'tribunal Procedure']

Case Brief

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Procedural Posture

Civil Appeal / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether the Tribunal erred in the form of order upon withdrawal of application under s 28(5)(h) of the CTTT Act' 'Whether the Tribunal had power to award costs under s 192 of the Strata Schemes Management Act 1996 when proceedings were withdrawn' 'Whether the application was misconceived because of defective valuation certificate' "Proper construction and application of 'misconceived' in tribunal proceedings" 'Whether procedural fairness was denied']

Ratio Decidendi

The Tribunal's original order dismissing the proceedings was made without power as it relied on s 55(1)(a) of the NCAT Act instead of s 28(5)(h) of the CTTT Act. The correct order upon withdrawal is that the proceedings are withdrawn on the application of the applicant, not an order for dismissal under the Strata Schemes Management Act. There was no power to make a costs order under s 192 of the Strata Schemes Management Act 1996 because the application was not dismissed as misconceived and there was no investigation or hearing. The appeal was allowed only to correct the procedural error; costs orders and relief from levies were not granted.

Court Disposition

Appeal allowed in respect of order 1; otherwise dismissed.

Orders

  • ['Leave to appeal granted with respect to order 1 made 21 April 2015' 'Order 1 made 21 April 2015 set aside and replaced with: The proceedings are withdrawn on the application of the applicant pursuant to s 28(5)(h) of the CTTT Act' 'The appeal is otherwise dismissed' 'Any application for costs in relation to the...