The Owners – Strata Plan No 95230 v Maister [2022] NSWCATAP 390

The Owners – Strata Plan No 95230 v Maister [2022] NSWCATAP 390

A stay is only warranted if the appellant shows a real risk of irreparable prejudice or that the appeal would be rendered nugatory absent a stay; on the evidence, only the relist order (Order 7) is stayed as ongoing damages might otherwise be crystalised before appeal determination, but there is insufficient ground to stay the damages or work orders, with the balance of convenience and lack of financial or other prejudice against the appellant.

Jurisdiction
Australia
Judgment Date
15 December 2022
Procedural Posture
Appeal / Interlocutory (stay Application)
Outcome
Order for stay granted in part, otherwise dismissed
Legal Topics
['stay Pending Appeal' 'remedial Orders' 'procedural Fairness' 'damages – Alternative Accommodation']
['strata Title' 'civil Procedure'] ['stay Pending Appeal' 'remedial Orders' 'procedural Fairness' 'damages – Alternative Accommodation']

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Procedural Posture

Appeal / Interlocutory (stay Application)

Legal Issues

  1. 1 ["Whether a stay of the Tribunal's orders should be granted pending appeal" 'Whether the appellant established a risk of irreparable prejudice absent a stay' 'Whether cross-examination should be permitted in interlocutory proceedings' 'Whether the Tribunal erred in ordering damages and remedial works']

Ratio Decidendi

A stay is only warranted if the appellant shows a real risk of irreparable prejudice or that the appeal would be rendered nugatory absent a stay; on the evidence, only the relist order (Order 7) is stayed as ongoing damages might otherwise be crystalised before appeal determination, but there is insufficient ground to stay the damages or work orders, with the balance of convenience and lack of financial or other prejudice against the appellant.

Court Disposition

Order for stay granted in part, otherwise dismissed

Orders

  • ['Order 7 made by the Tribunal at first instance is stayed until further order or finalisation of the appeal, whichever is the earlier in time.' 'The application for a Stay is otherwise dismissed.' 'Costs applications regarding the stay to be made within 14 days; submissions in response within 14 days thereafter;...