The Owners – Strata Plan No 20427 v A Halliwell Nominees Pty Ltd [2022] NSWCATAP 225

The Owners – Strata Plan No 20427 v A Halliwell Nominees Pty Ltd [2022] NSWCATAP 225

The Tribunal did not err in declining the restoration order, as it properly considered the relevant statutory framework, the context of the factual findings, and weighed relevant and not irrelevant considerations. It acted within its powers under s 232 of the Strata Schemes Management Act 2015 to make alternative orders. However, the order requiring a building alteration plan to be lodged under s 19 of the Strata Schemes Development Act 2015 was not necessary and should be set aside.

Parties
Appellant: The Owners – Strata Plan No 20427; First Respondent: A Halliwell Nominees Pty Ltd; Second Respondent: Peter Irvine
Jurisdiction
Australia
Judgment Date
08 July 2022
Procedural Posture
Strata Title Dispute Appeal / Appeal From Tribunal Decision
Outcome
Appeal allowed in part; order 1(3) set aside; leave to appeal refused; appeal otherwise dismissed.
Legal Topics
Common Property, Unauthorised Works, Appeals, Tribunal Discretion, Restoration Orders
Strata Law Administrative Law Common Property Unauthorised Works Appeals Tribunal Discretion Restoration Orders

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Parties

The Owners – Strata Plan No 20427

Appellant

A Halliwell Nominees Pty Ltd

First Respondent

Peter Irvine

Second Respondent

Procedural Posture

Strata Title Dispute Appeal / Appeal From Tribunal Decision

Legal Issues

  1. 1 Whether the Tribunal erred in declining a reinstatement/restoration order for unauthorised works to common property
  2. 2 Whether Tribunal took into account irrelevant considerations or failed to consider relevant considerations in declining reinstatement
  3. 3 Whether Tribunal erred in ordering the lodging of a building alteration plan under s 19 of Strata Schemes Development Act 2015

Ratio Decidendi

The Tribunal did not err in declining the restoration order, as it properly considered the relevant statutory framework, the context of the factual findings, and weighed relevant and not irrelevant considerations. It acted within its powers under s 232 of the Strata Schemes Management Act 2015 to make alternative orders. However, the order requiring a building alteration plan to be lodged under s 19 of the Strata Schemes Development Act 2015 was not necessary and should be set aside.

Court Disposition

Appeal allowed in part; order 1(3) set aside; leave to appeal refused; appeal otherwise dismissed.

Orders

  • The appeal is allowed in part.
  • Order 1(3) made by the Tribunal in proceedings SC 20/06967 on 5 March 2021 is set aside.