Sultan v The Owners – Strata Plan no 54721 [2024] NSWCATAP 102

Sultan v The Owners – Strata Plan no 54721 [2024] NSWCATAP 102

The Appeal Panel dismissed the appeal against the $15,105.62 money order because the challenged finding about the $3,327.60 credit was open on the evidence, no question of law was shown, and there was no basis to grant leave on factual matters. However, the Appellant was denied procedural fairness in her own application because directions required Mr Slatter to be available for cross-examination, the Appellant had not waived that requirement and wished to cross-examine him, and his reports materially influenced the Tribunal's rejection of the Appellant's expert and her water ingress claim. That error of law required the dismissal of the Appellant's application to be set aside and remitted...

Jurisdiction
Australia
Judgment Date
03 June 2024
Procedural Posture
Appeal From Decisions in Strata Proceedings in the Consumer and Commercial Division of the New South Wales Civil and Administrative Tribunal / Appeal Panel Decision
Outcome
Appeal allowed in part; money order affirmed; dismissal of the Appellant's application set aside and remitted for rehearing; first instance costs to be reconsidered on remittal.
Legal Topics
['procedural Fairness' 'cross Examination of Expert Witnesses' 'strata Levies and Charges' 'costs in NCAT Proceedings' 'remittal for Rehearing']
['administrative Law' 'strata Schemes' 'civil Procedure'] ['procedural Fairness' 'cross Examination of Expert Witnesses' 'strata Levies and Charges' 'costs in NCAT Proceedings' 'remittal for Rehearing']

Case Brief

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Procedural Posture

Appeal From Decisions in Strata Proceedings in the Consumer and Commercial Division of the New South Wales Civil and Administrative Tribunal / Appeal Panel Decision

Legal Issues

  1. 1 ["Whether the Tribunal denied the Appellant procedural fairness by proceeding when the Respondent's expert witness, Mr Slatter, was not available for cross-examination despite directions requiring attendance." 'Whether the order requiring the Appellant to pay $15,105.62 to the Respondent for levies, interest and charges should be set aside.' "Whether the Tribunal erred in finding that the Respondent's evidence about crediting $3,327.60 was unchallenged." 'Whether the first instance costs orders should be set aside and remitted for reconsideration.' 'Whether leave to appeal should be granted on factual challenges to the money order.']

Ratio Decidendi

The Appeal Panel dismissed the appeal against the $15,105.62 money order because the challenged finding about the $3,327.60 credit was open on the evidence, no question of law was shown, and there was no basis to grant leave on factual matters. However, the Appellant was denied procedural fairness in her own application because directions required Mr Slatter to be available for cross-examination, the Appellant had not waived that requirement and wished to cross-examine him, and his reports materially influenced the Tribunal's rejection of the Appellant's expert and her water ingress claim. That error of law required the dismissal of the Appellant's application to be set aside and remitted...

Court Disposition

Appeal allowed in part; money order affirmed; dismissal of the Appellant's application set aside and remitted for rehearing; first instance costs to be reconsidered on remittal.

Orders

  • ['The appeal in respect of order 1 in proceedings 2023/00394828, requiring the Appellant to pay $15,105.62 to the Respondent, is dismissed.' 'Order 1 in proceedings 2023/00394828 is affirmed.' 'Order 3 in proceedings 2023/00394828 is set aside and in its place costs at first instance will be included in the matters...