The Owners – Strata Plan No 3004 v Smith [2021] NSWCATAP 141

The Owners – Strata Plan No 3004 v Smith [2021] NSWCATAP 141

Although the Appeal Panel considered there was a reasonably strong chance that the Owners Corp could identify an error of law in the Tribunal's reliance on r 38, the appeal was filed five months and one day late, the delay was substantial and unexplained, the Owners Corp likely knew of its appeal rights, the prospects of achieving a better outcome were uncertain, and reopening the costs decision would prejudice the Smiths. Refusing the extension would not work an injustice on the Owners Corp because any potential injustice was caused by its own significant and unexplained delay.

Jurisdiction
Australia
Judgment Date
18 May 2021
Procedural Posture
Internal Appeal Under S 80(2) of the Civil and Administrative Tribunal Act 2013 (nsw) / Application to Extend Time for Filing the Notice of Appeal; Appeal Determined on the Papers
Outcome
Application to extend time refused; appeal otherwise dismissed; no order as to costs.
Legal Topics
['time to Appeal' 'extension of Time' 'costs in NCAT Proceedings' 'owners Corporation Duty to Maintain and Repair Common Property' 'rule 38 of the Civil and Administrative Tribunal Rules 2014' 'section 60 of the Civil and Administrative Tribunal Act 2013 (nsw)']
['practice and Procedure' 'strata Schemes' 'costs'] ['time to Appeal' 'extension of Time' 'costs in NCAT Proceedings' 'owners Corporation Duty to Maintain and Repair Common Property' 'rule 38 of the Civil and Administrative Tribunal Rules 2014' 'section 60 of the Civil and Administrative Tribunal Act 2013 (nsw)']

Case Brief

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Procedural Posture

Internal Appeal Under S 80(2) of the Civil and Administrative Tribunal Act 2013 (nsw) / Application to Extend Time for Filing the Notice of Appeal; Appeal Determined on the Papers

Legal Issues

  1. 1 ['Whether time should be extended for the Owners Corp to file a Notice of Appeal five months and one day late.' 'Whether the Tribunal erred by applying r 38 of the Civil and Administrative Tribunal Rules 2014 rather than s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) when making the costs order.' 'Whether the proposed appeal had sufficient prospects of success to justify an extension of time despite the substantial and unexplained delay.' 'Whether granting an extension of time would prejudice the Smiths.']

Ratio Decidendi

Although the Appeal Panel considered there was a reasonably strong chance that the Owners Corp could identify an error of law in the Tribunal's reliance on r 38, the appeal was filed five months and one day late, the delay was substantial and unexplained, the Owners Corp likely knew of its appeal rights, the prospects of achieving a better outcome were uncertain, and reopening the costs decision would prejudice the Smiths. Refusing the extension would not work an injustice on the Owners Corp because any potential injustice was caused by its own significant and unexplained delay.

Court Disposition

Application to extend time refused; appeal otherwise dismissed; no order as to costs.

Orders

  • ['Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) the Appeal Panel dispenses with a hearing of the appeal.' 'The application to extend time for the filing of the Notice of Appeal is refused.' 'The appeal is otherwise dismissed.']