Burbank Montague Pty Ltd v The Owners – Strata Plan No 85312 [2020] NSWCATAP 100

Burbank Montague Pty Ltd v The Owners – Strata Plan No 85312 [2020] NSWCATAP 100

There was evidence before the Tribunal to support its findings that the special levy was not excessive and that the management structure was functioning satisfactorily; the Tribunal's correct application of s 87 SSM Act meant it did not err in law or principle; the appellants could and should have adduced additional evidence below; no substantial miscarriage of justice or error warranting leave to appeal was demonstrated.

Parties
First Appellant: Burbank Montague Pty Ltd; Second Appellant: Gornoa Pty Ltd; First Respondent: The Owners – Strata Plan No. 85312; Second Respondents: Anne Lewinsky and Sidney Lewinsky; Third Respondent: Ronald Allen Zucker
Jurisdiction
Australia
Judgment Date
02 June 2020
Procedural Posture
Internal Appeal (ncat Appeal Panel) / Appeal – Determination of Leave and Merits
Outcome
Leave to appeal refused; appeal dismissed; costs awarded to respondents.
Legal Topics
Strata Scheme, Special Levy, Scope of Works, Rectification of Common Property Defects, Appointment of Strata Manager, Excessive Levy, Internal Appeal, Leave to Appeal, Costs of Appeal
Strata Law Administrative Law Civil Procedure Strata Scheme Special Levy Scope of Works Rectification of Common Property Defects Appointment of Strata Manager +4 more

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Parties

Burbank Montague Pty Ltd

First Appellant

Gornoa Pty Ltd

Second Appellant

The Owners – Strata Plan No. 85312

First Respondent

Anne Lewinsky and Sidney Lewinsky

Second Respondents

Ronald Allen Zucker

Third Respondent

Procedural Posture

Internal Appeal (ncat Appeal Panel) / Appeal – Determination of Leave and Merits

Legal Issues

  1. 1 Whether Tribunal erred in failing to reduce or vary special levy under s 87 Strata Schemes Management Act 2015
  2. 2 Whether Tribunal erred in refusing appointment of alternative strata manager
  3. 3 Whether leave to appeal should be granted on grounds of fairness or new evidence

Ratio Decidendi

There was evidence before the Tribunal to support its findings that the special levy was not excessive and that the management structure was functioning satisfactorily; the Tribunal's correct application of s 87 SSM Act meant it did not err in law or principle; the appellants could and should have adduced additional evidence below; no substantial miscarriage of justice or error warranting leave to appeal was demonstrated.

Court Disposition

Leave to appeal refused; appeal dismissed; costs awarded to respondents.

Orders

  • Leave to appeal is refused.
  • The appeal is dismissed.