McClenahan v Owners Corporation SP69904 [2017] NSWCATAP 112

McClenahan v Owners Corporation SP69904 [2017] NSWCATAP 112

The Tribunal erred in law by treating 24 October 2003, the registration date of the plan of consolidation SP 71482, as the relevant valuation date; the correct date was 27 February 2003, when the original strata plan SP 69904 was registered, because a plan of consolidation is neither a strata plan nor a strata plan of subdivision for s183 purposes. However, the appeal was dismissed because the Tribunal also rejected the valuation evidence on an available basis: Mr McKenzie could not justify aspects of his valuation, including the values for Lots 1, 8 and 15, and the appellant did not establish that the initial unit allocation was unreasonable. The appellant was not denied procedural...

Jurisdiction
Australia
Judgment Date
22 May 2017
Procedural Posture
Appeal From a NSW Civil and Administrative Tribunal Consumer and Commercial Division Decision Dismissing an Application Under S183 of the Strata Schemes Management Act, 1996 to Reallocate Unit Entitlements / Appeal Panel Decision on Leave to Appeal and Appeal
Outcome
Leave to amend the Notice of Appeal was granted; leave to appeal was refused and the appeal was dismissed.
Legal Topics
['reallocation of Unit Entitlements' 'valuation Certificate Under S183' 'date of Registration of Strata Plan' 'plan of Consolidation' 'procedural Fairness' 'cross Examination of Expert Witness' 'leave to Appeal']
['strata Schemes' 'administrative Law' 'civil Procedure'] ['reallocation of Unit Entitlements' 'valuation Certificate Under S183' 'date of Registration of Strata Plan' 'plan of Consolidation' 'procedural Fairness' 'cross Examination of Expert Witness' 'leave to Appeal']

Case Brief

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Procedural Posture

Appeal From a NSW Civil and Administrative Tribunal Consumer and Commercial Division Decision Dismissing an Application Under S183 of the Strata Schemes Management Act, 1996 to Reallocate Unit Entitlements / Appeal Panel Decision on Leave to Appeal and Appeal

Legal Issues

  1. 1 ['Whether the relevant valuation date under s183(4) of the Strata Schemes Management Act, 1996 was the date of registration of the original strata plan or the date of registration of a later plan of consolidation.' 'Whether a plan of consolidation is a strata plan or a strata plan of subdivision for the purposes of s183 of the Strata Schemes Management Act, 1996.' "Whether the Tribunal denied procedural fairness by allowing cross-examination of the appellant's expert valuer by a lay representative." 'Whether the Tribunal erred in finding that the evidence did not establish that the initial unit allocation was unreasonable.' 'Whether leave to appeal should be granted on issues other than questions of law.']

Ratio Decidendi

The Tribunal erred in law by treating 24 October 2003, the registration date of the plan of consolidation SP 71482, as the relevant valuation date; the correct date was 27 February 2003, when the original strata plan SP 69904 was registered, because a plan of consolidation is neither a strata plan nor a strata plan of subdivision for s183 purposes. However, the appeal was dismissed because the Tribunal also rejected the valuation evidence on an available basis: Mr McKenzie could not justify aspects of his valuation, including the values for Lots 1, 8 and 15, and the appellant did not establish that the initial unit allocation was unreasonable. The appellant was not denied procedural...

Court Disposition

Leave to amend the Notice of Appeal was granted; leave to appeal was refused and the appeal was dismissed.

Orders

  • ['Leave is given to the appellant to amend the Notice of Appeal to seek leave to appeal.' 'Leave to appeal is refused and the appeal dismissed.']