The Owners Strata Plan 675 v York & Edwards [2022] NSWCATAP 171

The Owners Strata Plan 675 v York & Edwards [2022] NSWCATAP 171

The Tribunal's exercise of discretion under s 236 miscarried because, after accepting the Keen Report valuations and finding that the allocation of unit entitlements was unreasonable at the relevant time, it refused relief by relying on irrelevant considerations and by asking wrong questions concerning whether residential lots should contribute to strata costs, absence of true comparable properties, an unclear third factor, and rejection of the valuation or purchase price of Lot 32. Those errors affected the discretionary refusal, so the appeal was allowed and the matter remitted for redetermination by a differently constituted Tribunal.

Jurisdiction
Australia
Judgment Date
24 May 2022
Procedural Posture
Appeal From Civil and Administrative Tribunal, Consumer and Commercial Division Decision Dismissing an Application Under S 236 of the Strata Schemes Management Act 2015 (nsw) for Reallocation of Unit Entitlements / Appeal Determined on the Papers
Outcome
Appeal allowed; the Tribunal's dismissal order was set aside and the proceedings were remitted to a differently constituted Tribunal for redetermination of whether an order should be made under s 236(1) of the Strata Schemes Management Act 2015 (NSW).
Legal Topics
['reallocation of Unit Entitlements' 'strata Scheme Levies' 'exercise of Discretionary Power' 'errors of Law' 'irrelevant Considerations' 'unreasonableness of Allocation of Unit Entitlements']
['land Law' 'strata Title' 'administrative Law' 'appeals'] ['reallocation of Unit Entitlements' 'strata Scheme Levies' 'exercise of Discretionary Power' 'errors of Law' 'irrelevant Considerations' 'unreasonableness of Allocation of Unit Entitlements']

Case Brief

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Procedural Posture

Appeal From Civil and Administrative Tribunal, Consumer and Commercial Division Decision Dismissing an Application Under S 236 of the Strata Schemes Management Act 2015 (nsw) for Reallocation of Unit Entitlements / Appeal Determined on the Papers

Legal Issues

  1. 1 ['Whether the Tribunal erred in law in refusing to exercise the power under s 236 of the Strata Schemes Management Act 2015 (NSW) after finding that the allocation of unit entitlements was unreasonable.' 'Whether the Tribunal took account of irrelevant considerations or asked itself the wrong questions in relation to Lots 31 and 32.' 'Whether anomalies identified in the schedule of current unit entitlements required determination on appeal.' 'Whether the Appeal Panel should itself exercise the discretion under s 236 or remit the matter for redetermination.']

Ratio Decidendi

The Tribunal's exercise of discretion under s 236 miscarried because, after accepting the Keen Report valuations and finding that the allocation of unit entitlements was unreasonable at the relevant time, it refused relief by relying on irrelevant considerations and by asking wrong questions concerning whether residential lots should contribute to strata costs, absence of true comparable properties, an unclear third factor, and rejection of the valuation or purchase price of Lot 32. Those errors affected the discretionary refusal, so the appeal was allowed and the matter remitted for redetermination by a differently constituted Tribunal.

Court Disposition

Appeal allowed; the Tribunal's dismissal order was set aside and the proceedings were remitted to a differently constituted Tribunal for redetermination of whether an order should be made under s 236(1) of the Strata Schemes Management Act 2015 (NSW).

Orders

  • ['The appeal is allowed.' 'Set aside the order made by the Tribunal on 18 October 2021 dismissing the application the subject of those proceedings.' 'The proceedings are remitted to a differently constituted Tribunal for redetermination of so much of the application as concerned whether the Tribunal should make the...