The Owners – Strata Plan No. 18229 v Jakabah Pty Ltd [2022] NSWCATAP 229

The Owners – Strata Plan No. 18229 v Jakabah Pty Ltd [2022] NSWCATAP 229

The Tribunal's discretion under s 232(6) of the Strata Schemes Management Act 2015 may be exercised as a balancing exercise, considering the interests of all lot owners in use and enjoyment of their lots and the common property. There is no implied requirement that an Owners Corporation's refusal to consent must be unreasonable. The Tribunal did not reverse the onus, nor fail to take relevant considerations into account. No error of law or substantial miscarriage of justice was identified; leave to appeal, insofar as required, was refused and the appeal was dismissed.

Parties
Appellant: The Owners – Strata Plan No. 18229; Respondent: Jakabah Pty Ltd
Jurisdiction
Australia
Judgment Date
14 July 2022
Procedural Posture
Appeal / Decision on Appeal
Outcome
Appeal dismissed
Legal Topics
Consent to Development Application, Exercise of Tribunal's Discretion, Leave to Appeal, Costs, Property Rights in Strata
Strata Law Administrative Law Consent to Development Application Exercise of Tribunal's Discretion Leave to Appeal Costs Property Rights in Strata

Case Brief

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Parties

The Owners – Strata Plan No. 18229

Appellant

Jakabah Pty Ltd

Respondent

Procedural Posture

Appeal / Decision on Appeal

Legal Issues

  1. 1 Whether the Tribunal applied the correct test in exercising discretion under s 232(6) of the Strata Schemes Management Act 2015
  2. 2 Whether there was a reversal of the onus of proof
  3. 3 Whether relevant considerations regarding fire authority and local council requirements were omitted

Ratio Decidendi

The Tribunal's discretion under s 232(6) of the Strata Schemes Management Act 2015 may be exercised as a balancing exercise, considering the interests of all lot owners in use and enjoyment of their lots and the common property. There is no implied requirement that an Owners Corporation's refusal to consent must be unreasonable. The Tribunal did not reverse the onus, nor fail to take relevant considerations into account. No error of law or substantial miscarriage of justice was identified; leave to appeal, insofar as required, was refused and the appeal was dismissed.

Court Disposition

Appeal dismissed

Orders

  • To the extent leave is required, leave to appeal is refused.
  • Appeal dismissed.