McDonnell v The Owners – Strata Plan No 64191 [2022] NSWSC 1631

McDonnell v The Owners – Strata Plan No 64191 [2022] NSWSC 1631

The Court refused an extension of time because none of the asserted errors was established. NCAT had power under s 132 of the Strata Schemes Management Act 2015 (NSW) to make rectification orders requiring removal and reinstatement of common property even though compliance required development consent; the need for consent affected enforcement, not the existence of power. The Senior Member's references to restoring and making good the common property were sufficient to reflect satisfaction that the unauthorised works had caused damage. The challenge to the construction and effect of the 2004 special resolution was factual or mixed fact and law, not a permissible question of law under s...

Jurisdiction
Australia
Judgment Date
30 November 2022
Procedural Posture
Appeal From New South Wales Civil and Administrative Tribunal Appeal Panel Under S 83 of the Civil and Administrative Tribunal Act 2013 (nsw), With Application to Extend Time and for Leave to Appeal on Questions of Law / Supreme Court Principal Judgment on Extension of Time and Summons
Outcome
The application to extend time to bring the appeal was refused and the summons was dismissed.
Legal Topics
['extension of Time to Appeal' 'leave to Appeal From NCAT Appeal Panel' 'question of Law' 'rectification of Common Property' 'special Resolution for Changes to Common Property' 'development Consent and Demolition Works' 'new Arguments Raised on Appeal']
['administrative Law' 'civil Procedure' 'strata Schemes' 'planning and Environment'] ['extension of Time to Appeal' 'leave to Appeal From NCAT Appeal Panel' 'question of Law' 'rectification of Common Property' 'special Resolution for Changes to Common Property' 'development Consent and Demolition Works' 'new Arguments Raised on Appeal']

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Procedural Posture

Appeal From New South Wales Civil and Administrative Tribunal Appeal Panel Under S 83 of the Civil and Administrative Tribunal Act 2013 (nsw), With Application to Extend Time and for Leave to Appeal on Questions of Law / Supreme Court Principal Judgment on Extension of Time and Summons

Legal Issues

  1. 1 ['Whether time should be extended for the plaintiffs to bring an appeal more than two years after the NCAT Appeal Panel decision.' 'Whether leave should be granted under s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW).' 'Whether the Tribunal had power under s 132 of the Strata Schemes Management Act 2015 (NSW) to make orders requiring removal of works where development consent under the Environmental Planning and Assessment Act 1979 (NSW) would be required.' 'Whether s 132 of the Strata Schemes Management Act 2015 (NSW) was enlivened absent an express finding of damage to common property.' 'Whether s 65A of the Strata Schemes Management Act 1996 (NSW) required a special resolution authorising commencement of construction works, or whether the 2004 resolution authorising lodgement of a development application was sufficient.' 'Whether arguments not raised before NCAT should be entertained for the first time in the Supreme Court appeal.']

Ratio Decidendi

The Court refused an extension of time because none of the asserted errors was established. NCAT had power under s 132 of the Strata Schemes Management Act 2015 (NSW) to make rectification orders requiring removal and reinstatement of common property even though compliance required development consent; the need for consent affected enforcement, not the existence of power. The Senior Member's references to restoring and making good the common property were sufficient to reflect satisfaction that the unauthorised works had caused damage. The challenge to the construction and effect of the 2004 special resolution was factual or mixed fact and law, not a permissible question of law under s...

Court Disposition

The application to extend time to bring the appeal was refused and the summons was dismissed.

Orders

  • ['The application to extend time to bring this appeal is refused.' 'The summons is dismissed.' "The plaintiffs are to pay the defendant's costs."]