Sunaust Properties Pty Ltd v The Owners SP no 64807 (No 2) [2022] NSWCATAP 335

Sunaust Properties Pty Ltd v The Owners SP no 64807 (No 2) [2022] NSWCATAP 335

The Appeal Panel held that its earlier failure to determine grounds 1 and 2 created a potentially inconsistent relationship between the remittal order and the reasons because, if those grounds were upheld, the first instance application would be beyond the Tribunal's jurisdiction and should have been dismissed rather than remitted. That omission was an obvious error within s 63. On the merits of grounds 1 and 2, the Caretaker Agreement, although entered into in March 2001 before the 2002 amendments, became regulated by the 1996 Act as amended by the 2002 Act through clause 12, subject to the limits in clause 12(2). The 2015 Act did not exclude that agreement merely because it gave...

Jurisdiction
Australia
Judgment Date
27 October 2022
Procedural Posture
Appeal Panel Supplementary Decision on an Application Under S 63 of the Civil & Administrative Tribunal Act 2013 (nsw) in a Strata Schemes Management Appeal / Determined on the Papers After the Appeal Panel Decision of 27 July 2022
Outcome
The Respondent's s 63 application was upheld, appeal grounds 1 and 2 were rejected, orders 1, 2 and 3 made on 27 July 2022 were affirmed, and the stay of order 3 was lifted.
Legal Topics
['slip Rule' 'correction of Tribunal Reasons' 'jurisdiction of Ncat' 'caretaker Agreements' 'building Manager Agreements' 'savings and Transitional Provisions' 'termination Under S 72 of the Strata Schemes Management Act 2015 (nsw)']
['administrative Law' 'strata Law' 'civil Procedure'] ['slip Rule' 'correction of Tribunal Reasons' 'jurisdiction of Ncat' 'caretaker Agreements' 'building Manager Agreements' 'savings and Transitional Provisions' 'termination Under S 72 of the Strata Schemes Management Act 2015 (nsw)']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal Panel Supplementary Decision on an Application Under S 63 of the Civil & Administrative Tribunal Act 2013 (nsw) in a Strata Schemes Management Appeal / Determined on the Papers After the Appeal Panel Decision of 27 July 2022

Legal Issues

  1. 1 ["Whether the Respondent's application under s 63 of the Civil & Administrative Tribunal Act 2013 (NSW) could be determined on the papers and without a further hearing." "Whether the Appeal Panel's failure to determine grounds 1 and 2 of the appeal was an obvious error, accidental slip or omission, or inconsistency between the decision and reasons within s 63." 'Whether grounds 1 and 2 of the appeal should be considered despite the earlier remittal order.' 'Whether the Tribunal had jurisdiction under s 72 of the Strata Schemes Management Act 2015 (NSW) in relation to a Caretaker Agreement entered into in March 2001 that gave the caretaker exclusive possession of lots.' 'Whether clause 12 of Part 4 of Schedule 4 to the 2002 amendments, clause 3 and clause 15 of Schedule 3 to the Strata Schemes Management Act 2015 (NSW), and s 30 of the Interpretation Act 1987 preserved or continued regulation of the Caretaker Agreement.']

Ratio Decidendi

The Appeal Panel held that its earlier failure to determine grounds 1 and 2 created a potentially inconsistent relationship between the remittal order and the reasons because, if those grounds were upheld, the first instance application would be beyond the Tribunal's jurisdiction and should have been dismissed rather than remitted. That omission was an obvious error within s 63. On the merits of grounds 1 and 2, the Caretaker Agreement, although entered into in March 2001 before the 2002 amendments, became regulated by the 1996 Act as amended by the 2002 Act through clause 12, subject to the limits in clause 12(2). The 2015 Act did not exclude that agreement merely because it gave...

Court Disposition

The Respondent's s 63 application was upheld, appeal grounds 1 and 2 were rejected, orders 1, 2 and 3 made on 27 July 2022 were affirmed, and the stay of order 3 was lifted.

Orders

  • ["The Respondent's application under s 63 is determined on the papers and a hearing is dispensed with." "The Respondent's application under s 63 is upheld and directions are made for the Registrar to publish these reasons to be read in conjunction with the reasons published on 27th July 2022." 'Orders 1, 2 and 3...