Eadie v Harvey [2017] NSWCATAP 201

Eadie v Harvey [2017] NSWCATAP 201

The Tribunal was correct to dismiss the appellants' application since no formal application had been made to the owners corporation for a licence or by-law change regarding use of the common property, and thus there had been no refusal as required by sections 131 and 149 of the Strata Schemes Management Act 2015 (NSW); without such precondition, the Tribunal is legally prohibited from making the orders sought. The oral agreements between owners could not alter the formal requirements for by-laws. No appeal was made against these core legal findings; hence, the appeal must fail.

Jurisdiction
Australia
Judgment Date
18 October 2017
Procedural Posture
Appeal / Decision on Appeal
Outcome
Appeal dismissed
Legal Topics
['adoption and Registration of by Laws' 'model by Laws' 'strata Schemes Management Act 1996 (nsw)' 'strata Schemes Management Act 2015 (nsw)' 'effect of Oral Agreements to Vary by Laws' 'licences to Use Common Property' 'consideration of Evidence by Tribunal' 'orders for Use of Common Property']
['strata Titles' 'administrative Law'] ['adoption and Registration of by Laws' 'model by Laws' 'strata Schemes Management Act 1996 (nsw)' 'strata Schemes Management Act 2015 (nsw)' 'effect of Oral Agreements to Vary by Laws' 'licences to Use Common Property' 'consideration of Evidence by Tribunal' 'orders for Use of Common Property']

Case Brief

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Procedural Posture

Appeal / Decision on Appeal

Legal Issues

  1. 1 ['Whether the appellants are entitled to orders permitting permanent parking on common property under Strata Schemes Management Act 2015 (NSW)' 'Whether the Tribunal below gave proper consideration to appellants’ evidence, including medical evidence' 'Effect of oral agreements to vary by-laws or permit use of common property' 'Whether the procedural requirements for seeking a licence or by-law change were satisfied']

Ratio Decidendi

The Tribunal was correct to dismiss the appellants' application since no formal application had been made to the owners corporation for a licence or by-law change regarding use of the common property, and thus there had been no refusal as required by sections 131 and 149 of the Strata Schemes Management Act 2015 (NSW); without such precondition, the Tribunal is legally prohibited from making the orders sought. The oral agreements between owners could not alter the formal requirements for by-laws. No appeal was made against these core legal findings; hence, the appeal must fail.

Court Disposition

Appeal dismissed

Orders

  • ['Amber Wheedon is joined to the proceedings as the second appellant.' 'Leave is granted to the first appellant to represent the second appellant on the hearing of the appeal.' 'Appeal dismissed.']