Feedback Deli Pty Ltd v The Owners – Strata Plan No 36613 [2019] NSWCATAP 6

Feedback Deli Pty Ltd v The Owners – Strata Plan No 36613 [2019] NSWCATAP 6

The Appeal Panel held that leave should be granted to the extent necessary because the joinder decision was pivotal to the dismissal of the proceedings. Although the specific procedural fairness complaint was rejected because the issue had been raised during the hearing, the Tribunal erred in concluding as a matter of law that no order could be made in favour of Feedback Holdings Pty Ltd and in treating the utility point as inarguable without considering whether Special By-Law 14 might be without force or effect under s 136(2) or harsh, unconscionable or oppressive under s 139(1) of the Strata Schemes Management Act 2015 (NSW). Feedback Holdings Pty Ltd was arguably an interested person...

Jurisdiction
Australia
Judgment Date
02 January 2019
Procedural Posture
Internal Appeal in Strata Schemes Proceedings / Appeal Panel Hearing on Appeal From Civil and Administrative Tribunal, Consumer and Commercial Division Decisions Dismissing Joinder and Substantive Application, and Making a Costs Order
Outcome
Leave to appeal granted; appeal allowed; matter remitted to a differently constituted Tribunal for reconsideration; Feedback Holdings Pty Ltd joined as an applicant to the remitted proceedings.
Legal Topics
['joinder of Parties' 'standing' 'strata by Laws' 'common Property Toilets' 'procedural Fairness' 'tribunal Powers' 'remitter' 'costs']
['strata Schemes' 'civil Procedure' 'administrative Tribunal Appeals'] ['joinder of Parties' 'standing' 'strata by Laws' 'common Property Toilets' 'procedural Fairness' 'tribunal Powers' 'remitter' 'costs']

Case Brief

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Procedural Posture

Internal Appeal in Strata Schemes Proceedings / Appeal Panel Hearing on Appeal From Civil and Administrative Tribunal, Consumer and Commercial Division Decisions Dismissing Joinder and Substantive Application, and Making a Costs Order

Legal Issues

  1. 1 ['Whether leave to appeal was required or should be granted in relation to the joinder decision.' 'Whether the Tribunal denied procedural fairness when dismissing the joinder application and subsequently the substantive application.' 'Whether the Tribunal erred in concluding that joinder of Feedback Holdings Pty Ltd had no utility because the Tribunal could not make the remaining order sought under ss 232 or 241 of the Strata Schemes Management Act 2015 (NSW).' 'Whether Feedback Holdings Pty Ltd should be joined as an applicant in the remitted proceedings.']

Ratio Decidendi

The Appeal Panel held that leave should be granted to the extent necessary because the joinder decision was pivotal to the dismissal of the proceedings. Although the specific procedural fairness complaint was rejected because the issue had been raised during the hearing, the Tribunal erred in concluding as a matter of law that no order could be made in favour of Feedback Holdings Pty Ltd and in treating the utility point as inarguable without considering whether Special By-Law 14 might be without force or effect under s 136(2) or harsh, unconscionable or oppressive under s 139(1) of the Strata Schemes Management Act 2015 (NSW). Feedback Holdings Pty Ltd was arguably an interested person...

Court Disposition

Leave to appeal granted; appeal allowed; matter remitted to a differently constituted Tribunal for reconsideration; Feedback Holdings Pty Ltd joined as an applicant to the remitted proceedings.

Orders

  • ['Leave to appeal granted.' 'Appeal allowed.' 'Matter remitted to the Tribunal constituted by a different Member for reconsideration.' 'Feedback Holdings Pty Ltd is joined as an applicant to the remitted proceedings.' 'If the appellants seek costs, they should file and serve submissions by 14 January 2019.' 'The...