Colman v The Owners – Strata Plan 61131 [2023] NSWCATAP 308

Colman v The Owners – Strata Plan 61131 [2023] NSWCATAP 308

The Appeal Panel held that the first instance reasons met the minimum acceptable standard, disclosed no constructive failure to exercise jurisdiction, and revealed no error of law in the construction or application of the Strata Schemes Management Act 2015 (NSW). Section 232(2) did not deem a refusal for the...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
17 November 2023
Procedural Posture
Internal Appeal Under S 80(2) of the Civil and Administrative Tribunal Act 2013 (nsw) From a Consumer and Commercial Division Strata Schemes Decision / Appeal Panel Decision on Appeal and Leave to Appeal
Outcome
Leave to appeal refused; appeal dismissed; appellant ordered to pay respondent's costs of the appeal on the ordinary basis, subject to any application for a different costs order.
Legal Topics
['adequacy of Reasons' 'interpretation of Strata by Law' 'common Property Works' 'minor Renovations' 'owners Corporation Duties' 'leave to Appeal' 'costs']
['administrative Law' 'strata Title' 'land Law' 'appeals'] ['adequacy of Reasons' 'interpretation of Strata by Law' 'common Property Works' 'minor Renovations' 'owners Corporation Duties' 'leave to Appeal' 'costs']

Source-derived case record

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Procedural Posture

Internal Appeal Under S 80(2) of the Civil and Administrative Tribunal Act 2013 (nsw) From a Consumer and Commercial Division Strata Schemes Decision / Appeal Panel Decision on Appeal and Leave to Appeal

Legal Issues

  1. 1 ['Whether the Tribunal at first instance failed to provide adequate reasons or constructively failed to exercise jurisdiction by not addressing material issues or evidence.' 'Whether the Tribunal misconstrued or misapplied provisions of the Strata Schemes Management Act 2015 (NSW), including ss 106, 108, 110, 126, 127 and 232.' 'Whether by-law 44 authorised or retrospectively approved all works carried out by the appellant before its registration, including works undertaken between December 2019 and May 2020.' '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 first instance costs order or costs of the appeal should be disturbed.']

Ratio Decidendi

The Appeal Panel held that the first instance reasons met the minimum acceptable standard, disclosed no constructive failure to exercise jurisdiction, and revealed no error of law in the construction or application of the Strata Schemes Management Act 2015 (NSW). Section 232(2) did not deem a refusal for the purposes of s 126. By-law 44, properly construed in context and by reference to its heading, preamble and schedule, was confined to past roofing works identified in the schedule or works approved through the relevant process, and did not retrospectively approve all works undertaken by the appellant before registration. The appellant's fairness and weight-of-evidence arguments repeated...

Court Disposition

Leave to appeal refused; appeal dismissed; appellant ordered to pay respondent's costs of the appeal on the ordinary basis, subject to any application for a different costs order.

Orders

  • ['Leave to appeal is refused.' 'The appeal is dismissed.' "Subject to order (4), the appellant is to pay the respondent's costs of the appeal, on the ordinary basis, as agreed or assessed." 'If either party wishes to contend that a different costs order should be made, order (3) ceases to have effect and the...