Cheung v Talal [2022] NSWCATAP 352

Cheung v Talal [2022] NSWCATAP 352

The appeal failed because service of the hearing notice by post was sufficient and the Tribunal's decision to proceed in the appellant's absence did not deny procedural fairness; the respondent's subjective evidence of noise and vibration was corroborated by expert acoustic reports and could properly be considered; the age of the building was not shown to be a mandatory or relevant consideration on the evidence and was not raised below; Special By-law No 21 was not put in issue before the Tribunal and did not provide a basis for appellate intervention; and the proposed email evidence was reasonably available before the first instance hearing. No error of law was established and there was...

Jurisdiction
Australia
Judgment Date
10 November 2022
Procedural Posture
Internal Appeal From a Consumer and Commercial Division Strata Schemes Decision / Appeal Panel Decision on Leave to Appeal and Appeal
Outcome
Leave to appeal refused and appeal dismissed.
Legal Topics
['internal Appeal' 'leave to Appeal' 'procedural Fairness' 'service of Notice of Hearing' 'further Evidence on Appeal' 'strata by Laws' 'noise and Vibration Affecting Strata Lots' 'rectification Orders']
['civil Procedure' 'strata Schemes' 'land Law'] ['internal Appeal' 'leave to Appeal' 'procedural Fairness' 'service of Notice of Hearing' 'further Evidence on Appeal' 'strata by Laws' 'noise and Vibration Affecting Strata Lots' 'rectification Orders']

Case Brief

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Procedural Posture

Internal Appeal From a Consumer and Commercial Division Strata Schemes Decision / Appeal Panel Decision on Leave to Appeal and Appeal

Legal Issues

  1. 1 ['Whether the appellant was denied procedural fairness because the Tribunal proceeded in her absence when notice of hearing had been sent by post rather than email.' "Whether the Tribunal erred by taking into account or giving undue weight to the respondent's subjective evidence of noise and vibration." 'Whether the Tribunal failed to take into account the age of the building as a relevant or mandatory consideration.' 'Whether the Tribunal erred by failing to take account of clauses 5(g) and 8 of Special By-law No 21.' 'Whether the appellant should be granted leave to appeal or to rely on further evidence.']

Ratio Decidendi

The appeal failed because service of the hearing notice by post was sufficient and the Tribunal's decision to proceed in the appellant's absence did not deny procedural fairness; the respondent's subjective evidence of noise and vibration was corroborated by expert acoustic reports and could properly be considered; the age of the building was not shown to be a mandatory or relevant consideration on the evidence and was not raised below; Special By-law No 21 was not put in issue before the Tribunal and did not provide a basis for appellate intervention; and the proposed email evidence was reasonably available before the first instance hearing. No error of law was established and there was...

Court Disposition

Leave to appeal refused and appeal dismissed.

Orders

  • ['Leave to appeal refused.' 'Appeal dismissed.' 'Orders numbers 1 and 2 made by the Tribunal on 8 June 2022 with respect to file number SC 21/44169 are revived with the dates for the actions ordered to be performed in both paragraphs extended to 20 December 2022.']