Araya v Owners Corporation SP65717 [2021] NSWCATAD 5

Araya v Owners Corporation SP65717 [2021] NSWCATAD 5

The Tribunal accepted that Mrs Araya had a disability and that the Owners Corporation provided services by managing and controlling the use of common property. It also found less favourable treatment in the enforcement of the parking by-law and refusal to mediate compared with other lot owners. However, the direct...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
11 January 2021
Procedural Posture
Disability Discrimination Complaint Under the Anti Discrimination Act 1977 (nsw) / Final Hearing in the Administrative and Equal Opportunity Division of the Civil and Administrative Tribunal of New South Wales After Referral by the President of the Anti Discrimination Board
Outcome
The application is dismissed.
Legal Topics
['provision of Goods and Services' 'direct Disability Discrimination' 'indirect Disability Discrimination' 'owners Corporation by Law Enforcement' 'visitor and Disabled Parking Spaces' 'judicial Notice']
['equal Opportunity and Anti Discrimination' 'disability Discrimination' 'strata Schemes'] ['provision of Goods and Services' 'direct Disability Discrimination' 'indirect Disability Discrimination' 'owners Corporation by Law Enforcement' 'visitor and Disabled Parking Spaces' 'judicial Notice']

Source-derived case record

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

Disability Discrimination Complaint Under the Anti Discrimination Act 1977 (nsw) / Final Hearing in the Administrative and Equal Opportunity Division of the Civil and Administrative Tribunal of New South Wales After Referral by the President of the Anti Discrimination Board

Legal Issues

  1. 1 ['Whether Mrs Araya had a disability within the Anti-Discrimination Act 1977 (NSW).' 'Whether the Owners Corporation provided services for the purposes of s 49M of the Anti-Discrimination Act 1977 (NSW).' 'Whether the Owners Corporation treated the applicants less favourably in the terms on which it provided services by enforcing the parking by-law and refusing mediation.' "Whether any less favourable treatment was on the ground of Mrs Araya's disability." 'Whether the requirement that residents not park in visitor car spaces amounted to indirect discrimination under s 49B(1)(b) of the Anti-Discrimination Act 1977 (NSW).' "Whether the Tribunal could take judicial notice that a substantially higher proportion of residents without Mrs Araya's disability could comply with the requirement not to park in visitor car spaces."]

Ratio Decidendi

The Tribunal accepted that Mrs Araya had a disability and that the Owners Corporation provided services by managing and controlling the use of common property. It also found less favourable treatment in the enforcement of the parking by-law and refusal to mediate compared with other lot owners. However, the direct discrimination claim failed because the applicants did not establish that Mrs Araya's disability was a real, genuine or true reason for that differential treatment. The indirect discrimination claim failed because, although the requirement not to park in visitor car spaces was identified with sufficient precision, the applicants did not prove that a substantially higher...

Court Disposition

The application is dismissed.

Orders

  • ['The application is dismissed.']