The Owners – Strata Plan No. 12289 v Donaldson [2019] NSWCATAP 213

The Owners – Strata Plan No. 12289 v Donaldson [2019] NSWCATAP 213

The owners corporation was not a resident for the purposes of s 75(iv) of the Commonwealth Constitution because that term applies only to natural persons, so the Tribunal had jurisdiction. The Tribunal applied the correct s 149 test by determining that the owners corporation had unreasonably refused to make the proposed common property rights by-law, assessed objectively and not by an impermissible balancing exercise. It did not err by considering subsequent expert evidence directed to circumstances existing at the time of refusal, and the remaining grounds concerning car park restriction, laundry access, safety, differences from the approved works and lift compliance did not demonstrate...

Jurisdiction
Australia
Judgment Date
22 August 2019
Procedural Posture
Appeal Concerning Strata Scheme Common Property Rights by Law and Development Application Consent / Appeal Panel Appeal From the Consumer and Commercial Division of the Civil and Administrative Tribunal of New South Wales
Outcome
Appeal dismissed.
Legal Topics
['common Property' 'common Property Rights by Law' 'unreasonable Refusal' 'objective Test' 'federal Jurisdiction' 'residents of Different States' 'subsequent Evidence']
['land Law' 'strata Title' 'constitutional Law'] ['common Property' 'common Property Rights by Law' 'unreasonable Refusal' 'objective Test' 'federal Jurisdiction' 'residents of Different States' 'subsequent Evidence']

Case Brief

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Procedural Posture

Appeal Concerning Strata Scheme Common Property Rights by Law and Development Application Consent / Appeal Panel Appeal From the Consumer and Commercial Division of the Civil and Administrative Tribunal of New South Wales

Legal Issues

  1. 1 ['Whether the Tribunal lacked jurisdiction because the respondents were residents of Queensland and the owners corporation was said to be a resident of New South Wales for the purposes of s 75(iv) of the Commonwealth Constitution.' 'Whether the Tribunal applied the wrong legal test under s 149 of the Strata Schemes Management Act 2015 (NSW) by engaging in an impermissible balancing exercise.' 'Whether the Tribunal erred in its treatment of alleged encroachment or restriction of the car park area by the proposed works.' 'Whether the Tribunal erred by considering expert evidence not before the owners corporation at the September 2017 meeting.' 'Whether the Tribunal failed to give proper, genuine and realistic consideration to material concerning car park restriction, laundry access, safety concerns, differences between the approved and proposed works, and alleged lift regulatory compliance.' "Whether the Tribunal's order requiring consent to the development application should stand with the s 149 orders."]

Ratio Decidendi

The owners corporation was not a resident for the purposes of s 75(iv) of the Commonwealth Constitution because that term applies only to natural persons, so the Tribunal had jurisdiction. The Tribunal applied the correct s 149 test by determining that the owners corporation had unreasonably refused to make the proposed common property rights by-law, assessed objectively and not by an impermissible balancing exercise. It did not err by considering subsequent expert evidence directed to circumstances existing at the time of refusal, and the remaining grounds concerning car park restriction, laundry access, safety, differences from the approved works and lift compliance did not demonstrate...

Court Disposition

Appeal dismissed.

Orders

  • ['Order that the Estate of Harold Thompson Donaldson be substituted for Harold Thompson Donaldson as first respondent.' 'Appeal dismissed.' 'If either party desires to make an application for costs: they are to so inform the other party within 14 days of the date of these reasons; the applicant for costs is/are to...