Nowak v Pellicciotti [2018] NSWCATAP 245

Nowak v Pellicciotti [2018] NSWCATAP 245

The short, unopposed delay justified extending time, but the appeal grounds did not establish an error of law or justify leave. The Tribunal applied the correct objective test for by-laws 1 and 14 and s 153, considered the expert evidence, and was entitled to find that a minimal exceedance of current BCA acoustic criteria in one room of an older building, together with the respondent's mitigation steps and other evidence, did not establish breach or warrant orders. The appellant’s further complaints about weight, fresh Council material, subjective mental impact, correspondence, statutory declarations and Felcher did not show that the decision was not fair and equitable, was against the...

Jurisdiction
Australia
Judgment Date
16 October 2018
Procedural Posture
Appeal From Consumer and Commercial Division Decision Concerning Alleged Strata by Law Breaches / Appeal Panel Decision on Extension of Time, Leave to Appeal and Appeal
Outcome
Time to appeal extended; application for leave to appeal refused; appeal dismissed; timetable set for written submissions on costs.
Legal Topics
['strata by Laws' 'noise' 'floor Coverings' 'peaceful Enjoyment of Lot' 'objective Test' 'leave to Appeal' 'extension of Time' 'costs']
['land Law' 'strata Title' 'civil Procedure'] ['strata by Laws' 'noise' 'floor Coverings' 'peaceful Enjoyment of Lot' 'objective Test' 'leave to Appeal' 'extension of Time' 'costs']

Case Brief

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Procedural Posture

Appeal From Consumer and Commercial Division Decision Concerning Alleged Strata by Law Breaches / Appeal Panel Decision on Extension of Time, Leave to Appeal and Appeal

Legal Issues

  1. 1 ['Whether time should be extended for the appellant to lodge the appeal.' 'Whether the appellant raised any question of law or otherwise satisfied the requirements for leave to appeal from a Consumer and Commercial Division decision.' 'Whether the Tribunal erred in finding that breach of by-laws 1 and 14 or s 153 of the Strata Schemes Management Act 2015 (NSW) was not established.' "Whether evidence concerning acoustic testing, the Building Code of Australia, the appellant's mental state, Council correspondence, letters, statutory declarations and Felcher v The Owners - Strata Plan 2738 [2017] NSWCATAP 219 showed error or a substantial miscarriage of justice."]

Ratio Decidendi

The short, unopposed delay justified extending time, but the appeal grounds did not establish an error of law or justify leave. The Tribunal applied the correct objective test for by-laws 1 and 14 and s 153, considered the expert evidence, and was entitled to find that a minimal exceedance of current BCA acoustic criteria in one room of an older building, together with the respondent's mitigation steps and other evidence, did not establish breach or warrant orders. The appellant’s further complaints about weight, fresh Council material, subjective mental impact, correspondence, statutory declarations and Felcher did not show that the decision was not fair and equitable, was against the...

Court Disposition

Time to appeal extended; application for leave to appeal refused; appeal dismissed; timetable set for written submissions on costs.

Orders

  • ['Pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) extend the time for the appellant to lodge his appeal to 18 May 2018.' 'Refuse the application for leave to appeal.' 'Dismiss the appeal.' 'The respondent may within 14 days of the date of publication of this decision file written submissions...