McGinn v Shoebridge [2019] NSWCATAP 107

McGinn v Shoebridge [2019] NSWCATAP 107

The Appeal Panel held that no error of law was established. The Tribunal did not construe s 238 of the Strata Schemes Management Act 2015 (NSW) as requiring an expert report; it was entitled to require cogent independent evidence for serious misappropriation allegations and to rely on audited accounts. The findings...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
26 April 2019
Procedural Posture
Appeal From a Decision of the Consumer and Commercial Division of the Civil and Administrative Tribunal Concerning Strata Scheme Orders / Appeal Panel Decision
Outcome
Appeal dismissed; leave to appeal refused.
Legal Topics
['question of Law on Appeal' 'leave to Appeal' 'strata Committee Removal' 'compulsory Strata Managing Agent' 'annual General Meeting Voting' 'poll Vote or Secret Ballot' 'proxies and Quorum' 'adequacy of Reasons' 'alleged Misappropriation of Funds']
['administrative Law' 'appeals' 'strata Titles'] ['question of Law on Appeal' 'leave to Appeal' 'strata Committee Removal' 'compulsory Strata Managing Agent' 'annual General Meeting Voting' 'poll Vote or Secret Ballot' 'proxies and Quorum' 'adequacy of Reasons' 'alleged Misappropriation of Funds']

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Procedural Posture

Appeal From a Decision of the Consumer and Commercial Division of the Civil and Administrative Tribunal Concerning Strata Scheme Orders / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether the Tribunal erred in law by treating an expert report as required to establish misappropriation of funds or misconduct under s 238 of the Strata Schemes Management Act 2015 (NSW).' 'Whether the Tribunal erred in finding no misappropriation of funds despite allegations about levy contributions and building management accounts.' 'Whether the Tribunal erred in finding that the committee election at the AGM was conducted by a poll vote rather than an unauthorised secret ballot.' 'Whether the Tribunal erred in finding no evidentiary foundation for allegations that extra proxies were added after the AGM or that there was no quorum.' 'Whether the Tribunal made findings without evidential support or failed to give adequate reasons.' "Whether the Tribunal erred in accepting Mr Shoebridge's evidence about the faulty pressure valve and tempering valve works." 'Whether leave to appeal should be granted on the ground that the decision was against the weight of the evidence.']

Ratio Decidendi

The Appeal Panel held that no error of law was established. The Tribunal did not construe s 238 of the Strata Schemes Management Act 2015 (NSW) as requiring an expert report; it was entitled to require cogent independent evidence for serious misappropriation allegations and to rely on audited accounts. The findings that the AGM involved a poll vote rather than an unauthorised secret ballot, that extra proxies were not added, that the scheme was not shown to be functioning unsatisfactorily, and that Mr Shoebridge acted appropriately regarding the valve works were findings open on the evidence. The Tribunal's reasons sufficiently exposed its reasoning. Leave to appeal was refused because...

Court Disposition

Appeal dismissed; leave to appeal refused.

Orders

  • ['Appeal dismissed.' 'Leave to appeal refused.' 'If the Respondents wish to seek an order for costs of this appeal in their favour, they are to file and serve a short outline of submissions as to why the Appeal Panel should make such an order and as to whether the question of costs should be determined on the papers...