Feletti v Eales [2019] NSWCATAP 100

Feletti v Eales [2019] NSWCATAP 100

The Appeal Panel held that the Member did not err in concluding that enforcing a tenant's compliance with strata by-laws is not a duty or function of a lot owner under the Strata Schemes Management Act 2015 or the by-laws, because the by-laws bind tenants by their own force under s 135 and no specific power was identified to require a landlord to ensure tenant compliance. The Panel also held that the Member applied the correct objective test for noise complaints, did not make a material error of law in assessing the appellant's evidence, adequately considered the expert report, and was entitled to find that non-compliance with by-laws 1 or 14 was not established. The decision was not...

Jurisdiction
Australia
Judgment Date
24 April 2019
Procedural Posture
Internal Appeal Under S 80(2) of the Civil and Administrative Tribunal Act 2013 Against a Consumer and Commercial Division Decision Concerning Strata by Laws and Noise Transmission / Appeal Panel Decision on Appeal and Leave to Appeal
Outcome
Leave to appeal refused; appeal dismissed.
Legal Topics
['noise Transmission' 'compliance With Strata by Laws' 'internal Appeal' 'leave to Appeal' 'objective Test for Noise Complaints' 'tribunal Jurisdiction Under S 232 of the Strata Schemes Management Act 2015']
['strata Schemes' 'civil Procedure' 'administrative Law' 'evidence'] ['noise Transmission' 'compliance With Strata by Laws' 'internal Appeal' 'leave to Appeal' 'objective Test for Noise Complaints' 'tribunal Jurisdiction Under S 232 of the Strata Schemes Management Act 2015']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Internal Appeal Under S 80(2) of the Civil and Administrative Tribunal Act 2013 Against a Consumer and Commercial Division Decision Concerning Strata by Laws and Noise Transmission / Appeal Panel Decision on Appeal and Leave to Appeal

Legal Issues

  1. 1 ["Whether enforcing a tenant's compliance with strata by-laws is a function or duty of a lot owner under the Strata Schemes Management Act 2015 or the by-laws" 'Whether the Tribunal erred in failing to find breaches of by-law 1 concerning noise' "Whether the Tribunal failed to have regard to paragraphs 25-30 of Dr Renzo Tonin's expert report" 'Whether by-law 14 concerning floor coverings had been breached' 'Whether leave to appeal should be granted because the decision was not fair and equitable or was against the weight of evidence']

Ratio Decidendi

The Appeal Panel held that the Member did not err in concluding that enforcing a tenant's compliance with strata by-laws is not a duty or function of a lot owner under the Strata Schemes Management Act 2015 or the by-laws, because the by-laws bind tenants by their own force under s 135 and no specific power was identified to require a landlord to ensure tenant compliance. The Panel also held that the Member applied the correct objective test for noise complaints, did not make a material error of law in assessing the appellant's evidence, adequately considered the expert report, and was entitled to find that non-compliance with by-laws 1 or 14 was not established. The decision was not...

Court Disposition

Leave to appeal refused; appeal dismissed.

Orders

  • ['The Owners-Strata Plan 2223 is joined as the second respondent.' 'Leave to appeal refused.' 'Appeal dismissed.']