Franks v Consumer, Trader and Tenancy Tribunal [2013] NSWSC 341

Franks v Consumer, Trader and Tenancy Tribunal [2013] NSWSC 341

The Tribunal's order awarding indemnity costs as an additional penalty exceeded the jurisdiction conferred under s 204 of the Strata Schemes Management Act 1996 and was a jurisdictional error, warranting partial quashing of the order. The Adjudicator's use of 'may' in relation to determining if conduct constituted a criminal offence did not amount to jurisdictional error as sufficient satisfaction on the material was permissible for the making of the order under s 138.

Jurisdiction
Australia
Judgment Date
19 April 2013
Procedural Posture
Judicial Review / Appeal From Tribunal / Judgment After Hearing of Application for Judicial Review
Outcome
Summons partly allowed; part of the Tribunal's order quashed; other relief dismissed; costs awarded against the plaintiff.
Legal Topics
['jurisdictional Error' 'costs Orders' 'strata Schemes' 'appeal From Tribunal' 'standard of Proof' 'indemnity Costs']
['administrative Law' 'civil Procedure' 'strata Law'] ['jurisdictional Error' 'costs Orders' 'strata Schemes' 'appeal From Tribunal' 'standard of Proof' 'indemnity Costs']

Case Brief

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Procedural Posture

Judicial Review / Appeal From Tribunal / Judgment After Hearing of Application for Judicial Review

Legal Issues

  1. 1 ["Whether the Adjudicator's order requiring compliance with by-law 7.1(f) was made without proper jurisdictional foundation due to the standard of proof applied to past conduct" "Whether the Tribunal's order for indemnity costs as an additional punishment exceeded its jurisdiction under s 204 of the Strata Schemes Management Act 1996"]

Ratio Decidendi

The Tribunal's order awarding indemnity costs as an additional penalty exceeded the jurisdiction conferred under s 204 of the Strata Schemes Management Act 1996 and was a jurisdictional error, warranting partial quashing of the order. The Adjudicator's use of 'may' in relation to determining if conduct constituted a criminal offence did not amount to jurisdictional error as sufficient satisfaction on the material was permissible for the making of the order under s 138.

Court Disposition

Summons partly allowed; part of the Tribunal's order quashed; other relief dismissed; costs awarded against the plaintiff.

Orders

  • ["Quash part of the third order made by the Consumer, Trader and Tenancy Tribunal on 14 December 2012 so that the order reads: '3. Phillip Franks is to pay The Owners Corp SP-70672 costs as agreed or assessed.'" 'Orders 1 and 2 made by the Consumer, Trader and Tenancy Tribunal on 14 December 2012 remain...