Community Association DP 270244 v The Owners – Strata Plan 69205 [2024] NSWCATAP 199

Community Association DP 270244 v The Owners – Strata Plan 69205 [2024] NSWCATAP 199

The Tribunal did not err in its interpretation of 'Subsidiary Accessway' or the effectiveness of by-law 26. While there was error in the Tribunal’s factual finding that the decking was part of the 'Community Hall', the decking did fall within the definition of 'Subsidiary Accessway' and was thus part of Restricted Subsidiary Property. The Tribunal possessed jurisdiction to determine applications under ss 80 and 82 of the 1989 CLMA upon referral but lacked power to award costs for proceedings referred under s 71B, as there was no statutory basis for such costs orders in the referred proceedings after repeal of s 104. The costs order was therefore set aside and remitted for reconsideration...

Parties
Appellant: Community Association DP No. 270244; Respondent: The Owners Strata Plan No. 69205
Jurisdiction
Australia
Judgment Date
11 October 2024
Procedural Posture
Civil Appeal / Appeal Decision
Outcome
Appeal allowed in part (costs order set aside and remitted); otherwise dismissed.
Legal Topics
Community Land Development Act Interpretation, By Law Construction and Validity, Tribunal Jurisdiction on Referral, Costs Jurisdiction After Legislative Change
Land Law Strata and Community Title Civil Procedure Community Land Development Act Interpretation By Law Construction and Validity Tribunal Jurisdiction on Referral Costs Jurisdiction After Legislative Change

Case Brief

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Parties

Community Association DP No. 270244

Appellant

The Owners Strata Plan No. 69205

Respondent

Procedural Posture

Civil Appeal / Appeal Decision

Legal Issues

  1. 1 Whether the Tribunal erred in interpreting 'Community Hall' and 'Subsidiary Accessway' for the purposes of common property and by-law grants
  2. 2 Whether grants under by-law 26 were effective to grant rights over Restricted Subsidiary Property, including open space areas and landscaping
  3. 3 Whether the Tribunal had jurisdiction to make orders under ss 80 and 82 of the Community Land Management Act 1989 (NSW) in proceedings referred from an adjudicator

Ratio Decidendi

The Tribunal did not err in its interpretation of 'Subsidiary Accessway' or the effectiveness of by-law 26. While there was error in the Tribunal’s factual finding that the decking was part of the 'Community Hall', the decking did fall within the definition of 'Subsidiary Accessway' and was thus part of Restricted Subsidiary Property. The Tribunal possessed jurisdiction to determine applications under ss 80 and 82 of the 1989 CLMA upon referral but lacked power to award costs for proceedings referred under s 71B, as there was no statutory basis for such costs orders in the referred proceedings after repeal of s 104. The costs order was therefore set aside and remitted for reconsideration...

Court Disposition

Appeal allowed in part (costs order set aside and remitted); otherwise dismissed.

Orders

  • The appeal in connection with the costs order made 22 April 2024 is allowed and that order is set aside.
  • The proceedings are remitted to the Tribunal as originally constituted to consider what, if any, order for costs should be made, such determination to be made in accordance with these reasons.