Sahade v The Owners - Strata Plan 62022 [2014] NSWCA 208

Sahade v The Owners - Strata Plan 62022 [2014] NSWCA 208

Section 183 did not make the respective values of the lots the sole determinant of a reallocation of unit entitlements. Because unit entitlements affect both financial obligations and voting control within an owners corporation, the Tribunal was entitled, when deciding whether and how to reallocate entitlements after considering unreasonableness, to take into account whether a variation would affect the level of control enjoyed by lot holders or create a potential for deadlock. The District Court was right to require remittal because the Tribunal had failed to give adequate reasons, but its remittal order had to be set aside and replaced to reflect the correct statutory source of the...

Jurisdiction
Australia
Judgment Date
01 July 2014
Procedural Posture
Application for Judicial Review in the Court of Appeal Under S 69 of the Supreme Court Act 1970 (nsw) / Review of a District Court Decision Remitting an Appeal From the Consumer, Trader and Tenancy Tribunal Concerning an Application to Vary Strata Scheme Unit Entitlements
Outcome
The District Court remittal order was set aside and replaced with orders setting aside the Tribunal decision and requiring NCAT to redetermine the relevant parts of the application on the basis of the Tribunal's valuation findings; the applicant was ordered to pay the active respondents' costs in the Court of...
Legal Topics
['judicial Review' 'error of Law' 'failure to Give Reasons' 'allocation and Reallocation of Unit Entitlements' 'relevant Considerations' 'control of Owners Corporation' 'strata Schemes Management Act 1996 (nsw), S 183']
['administrative Law' 'real Property' 'strata Titles'] ['judicial Review' 'error of Law' 'failure to Give Reasons' 'allocation and Reallocation of Unit Entitlements' 'relevant Considerations' 'control of Owners Corporation' 'strata Schemes Management Act 1996 (nsw), S 183']

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Procedural Posture

Application for Judicial Review in the Court of Appeal Under S 69 of the Supreme Court Act 1970 (nsw) / Review of a District Court Decision Remitting an Appeal From the Consumer, Trader and Tenancy Tribunal Concerning an Application to Vary Strata Scheme Unit Entitlements

Legal Issues

  1. 1 ["Whether the District Court erred in requiring the Tribunal to consider control of the strata scheme's management when determining an application under s 183 of the Strata Schemes Management Act 1996 (NSW)." 'Whether s 183 required reallocation of unit entitlements solely by reference to the respective values of the lots at the time of registration of the strata plan.' "Whether the District Court's order remitting the matter to the Consumer, Trader and Tenancy Tribunal should be set aside or varied because of the statutory source of the appeal and the replacement of that Tribunal by NCAT."]

Ratio Decidendi

Section 183 did not make the respective values of the lots the sole determinant of a reallocation of unit entitlements. Because unit entitlements affect both financial obligations and voting control within an owners corporation, the Tribunal was entitled, when deciding whether and how to reallocate entitlements after considering unreasonableness, to take into account whether a variation would affect the level of control enjoyed by lot holders or create a potential for deadlock. The District Court was right to require remittal because the Tribunal had failed to give adequate reasons, but its remittal order had to be set aside and replaced to reflect the correct statutory source of the...

Court Disposition

The District Court remittal order was set aside and replaced with orders setting aside the Tribunal decision and requiring NCAT to redetermine the relevant parts of the application on the basis of the Tribunal's valuation findings; the applicant was ordered to pay the active respondents' costs in the Court of...

Orders

  • ['Set aside the order of the District Court remitting the matter to the Consumer, Trader and Tenancy Tribunal.' 'In place of that order, order that the decision of the Consumer, Trader and Tenancy Tribunal (Strata and Community Schemes Division) made on 4 September 2012, dismissing an application for variation of...