The Owners – Strata Plan No 61618 v JPG Investment Holdings Pty Ltd [2023] NSWCATAP 167

The Owners – Strata Plan No 61618 v JPG Investment Holdings Pty Ltd [2023] NSWCATAP 167

The stay was continued because the appeal was at least arguable, particularly as to whether the Tribunal sufficiently exposed its reasoning about whether the development application could be lodged or approved without a water management site plan; the appeal would be rendered futile if a stay were not granted; and the respondents had not provided evidence showing disproportionate prejudice from delay before the appeal hearing. Balancing those matters, the balance of convenience favoured a stay, conditional on the appellant ratifying or having ratified the decision to lodge the appeal by motion at a general meeting.

Jurisdiction
Australia
Judgment Date
23 June 2023
Procedural Posture
Internal Appeal and Application for Stay / Appeal Panel Procedural Ruling on Stay Pending Appeal
Outcome
Stay granted in part and continued on condition; costs of the stay application made the appellant's costs in the appeal.
Legal Topics
['stay Pending Appeal' 'owners Corporation Consent to Development Application' 'development Application Affecting Strata Common Property' 'balance of Convenience' 'arguable Appeal' 'procedural Fairness' 'exercise of Discretion']
['strata Schemes' 'civil Procedure' 'planning and Environment Law'] ['stay Pending Appeal' 'owners Corporation Consent to Development Application' 'development Application Affecting Strata Common Property' 'balance of Convenience' 'arguable Appeal' 'procedural Fairness' 'exercise of Discretion']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Internal Appeal and Application for Stay / Appeal Panel Procedural Ruling on Stay Pending Appeal

Legal Issues

  1. 1 ['Whether the operation of orders requiring the appellant Owners Corporation to consent to a development application should be stayed pending the appeal.' 'Whether the appeal was arguable and would be rendered nugatory or futile without a stay.' 'Whether the balance of convenience and interests of justice favoured continuing the stay.' 'Whether any stay should be conditional on ratification of the decision to lodge the appeal at a general meeting.']

Ratio Decidendi

The stay was continued because the appeal was at least arguable, particularly as to whether the Tribunal sufficiently exposed its reasoning about whether the development application could be lodged or approved without a water management site plan; the appeal would be rendered futile if a stay were not granted; and the respondents had not provided evidence showing disproportionate prejudice from delay before the appeal hearing. Balancing those matters, the balance of convenience favoured a stay, conditional on the appellant ratifying or having ratified the decision to lodge the appeal by motion at a general meeting.

Court Disposition

Stay granted in part and continued on condition; costs of the stay application made the appellant's costs in the appeal.

Orders

  • ['In respect of the decision made on 12 May 2023 in matter number SC 22/26211, the operation of orders 1 & 2 is stayed pending further order or finalisation of the appeal, whichever is the earlier in time. This order is conditional upon the appellant, by motion passed at a general meeting, ratifying or having...