The Owners Strata Plan No. 2000 v Bylinska [2019] NSWCATAP 116

The Owners Strata Plan No. 2000 v Bylinska [2019] NSWCATAP 116

Although the delay in filing the appeal was excessive and inadequately explained, the merits of the appeal were so strong that injustice would result if time were not extended. Order 1 was set aside because the Tribunal had not examined whether it had statutory power to make a consent order conferring use of common property and there were real questions about the enforceability of the 1997 Agreement. Order 4 was set aside because the Tribunal erred in requiring production of legal advice documents despite the Owners Corporation's entitlement to assert legal professional privilege against a lot owner in an adversarial dispute. The refusal of an adjournment after the amended application...

Jurisdiction
Australia
Judgment Date
06 May 2019
Procedural Posture
Appeal From a Decision of the Consumer and Commercial Division of the Civil and Administrative Tribunal Concerning Strata Scheme Orders / Appeal Panel Decision on Extension of Time and Appeal
Outcome
Time to appeal extended; appeal upheld; Orders 1 and 4 of the original decision set aside; application concerning the 1997 Agreement remitted for rehearing subject to a condition preserving existing use pending further order.
Legal Topics
['consent Orders' 'jurisdictional Error' 'procedural Fairness' 'legal Professional Privilege' 'inspection of Owners Corporation Records' 'extension of Time to Appeal' 'use of Common Property']
['strata Law' 'civil Procedure' 'administrative Law' 'evidence'] ['consent Orders' 'jurisdictional Error' 'procedural Fairness' 'legal Professional Privilege' 'inspection of Owners Corporation Records' 'extension of Time to Appeal' 'use of Common Property']

Case Brief

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Procedural Posture

Appeal From a Decision of the Consumer and Commercial Division of the Civil and Administrative Tribunal Concerning Strata Scheme Orders / Appeal Panel Decision on Extension of Time and Appeal

Legal Issues

  1. 1 ['Whether time for lodgement of the Notice of Appeal should be extended under s 41 of the Civil and Administrative Tribunal Act 2013.' "Whether the Tribunal had power to make Order 1 by consent concerning Mr Bylinska's use of common property." 'Whether Order 4 requiring release of documents regarding legal advice involved an error of law because the documents were protected by legal professional privilege.' 'Whether the Owners Corporation was denied procedural fairness when an adjournment was refused after an amended application had allegedly not been received or had been received only shortly before the hearing.']

Ratio Decidendi

Although the delay in filing the appeal was excessive and inadequately explained, the merits of the appeal were so strong that injustice would result if time were not extended. Order 1 was set aside because the Tribunal had not examined whether it had statutory power to make a consent order conferring use of common property and there were real questions about the enforceability of the 1997 Agreement. Order 4 was set aside because the Tribunal erred in requiring production of legal advice documents despite the Owners Corporation's entitlement to assert legal professional privilege against a lot owner in an adversarial dispute. The refusal of an adjournment after the amended application...

Court Disposition

Time to appeal extended; appeal upheld; Orders 1 and 4 of the original decision set aside; application concerning the 1997 Agreement remitted for rehearing subject to a condition preserving existing use pending further order.

Orders

  • ['Time for the lodgement of the Notice of Appeal is extended to 5 February 2019.' 'The appeal is upheld.' 'Orders 1 and 4 made in SC 18/27660 on 21 August 2018 are set aside.' 'The application of the respondent to the appeal in respect of the 1997 Agreement is remitted to the Consumer and Commercial Division of the...