Brett v Warhaftig [2018] NSWCATAP 167

Brett v Warhaftig [2018] NSWCATAP 167

The appeal was dismissed because the proposed new valuation report was not shown to be significant new evidence that was not reasonably available at first instance; the Tribunal had no obligation to advise the appellant that his evidence was insufficient after he had consented to determination on the papers and had an opportunity to present evidence and reply to the respondents' challenge; and the evidence before the Tribunal, including the valuer's certificate, the valuer's letter and later sale prices, did not provide valuations of each lot at the relevant registration date or otherwise establish that the initial unit entitlement allocation was unreasonable.

Jurisdiction
Australia
Judgment Date
11 July 2018
Procedural Posture
Appeal Concerning an Application for Reallocation of Unit Entitlements Under S 236 of the Strata Schemes Management Act, 2015 (nsw) / Appeal Panel Decision From Civil and Administrative Tribunal of New South Wales, Consumer and Commercial Opportunity Division Decision Dated 27 February 2018
Outcome
The appeal is dismissed.
Legal Topics
['reallocation of Unit Entitlements' 'valuation Evidence' 'fresh Evidence on Appeal' 'determination on the Papers' 'tribunal Obligation to Explain Procedure' 'leave to Appeal']
['strata Schemes' 'administrative Law' 'civil Procedure'] ['reallocation of Unit Entitlements' 'valuation Evidence' 'fresh Evidence on Appeal' 'determination on the Papers' 'tribunal Obligation to Explain Procedure' 'leave to Appeal']

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Procedural Posture

Appeal Concerning an Application for Reallocation of Unit Entitlements Under S 236 of the Strata Schemes Management Act, 2015 (nsw) / Appeal Panel Decision From Civil and Administrative Tribunal of New South Wales, Consumer and Commercial Opportunity Division Decision Dated 27 February 2018

Legal Issues

  1. 1 ['Whether the appellant should be granted leave to rely on a new valuation report on appeal.' 'Whether the Tribunal erred by failing to inform the appellant that his valuation evidence was deficient before determining the application on the papers.' 'Whether the Tribunal was correct to dismiss the application for reallocation of unit entitlements for insufficiency of evidence.' 'Whether the initial allocation of unit entitlements was shown to be unreasonable when the strata plan was registered.']

Ratio Decidendi

The appeal was dismissed because the proposed new valuation report was not shown to be significant new evidence that was not reasonably available at first instance; the Tribunal had no obligation to advise the appellant that his evidence was insufficient after he had consented to determination on the papers and had an opportunity to present evidence and reply to the respondents' challenge; and the evidence before the Tribunal, including the valuer's certificate, the valuer's letter and later sale prices, did not provide valuations of each lot at the relevant registration date or otherwise establish that the initial unit entitlement allocation was unreasonable.

Court Disposition

The appeal is dismissed.

Orders

  • ['The appeal is dismissed.']