McDonnell v The Owners Strata Plan No 64191 [2019] NSWCATAP 172

McDonnell v The Owners Strata Plan No 64191 [2019] NSWCATAP 172

The Tribunal found no error in the original decision: the special resolution cited by appellants only permitted lodgement of a development application, not construction work. No valid authorisation under s 65A was given; appeals grounds regarding discretionary relief under s 132 failed because they were not raised below, and no miscarriage of justice or leave to appeal was demonstrated.

Jurisdiction
Australia
Judgment Date
11 July 2019
Procedural Posture
Appeal / Appeal Panel Decision
Outcome
Appeal dismissed. Leave to appeal refused to extent sought.
Legal Topics
['strata Management' 'common Property Alterations' 'tribunal Appeals']
['strata Law' 'property Law'] ['strata Management' 'common Property Alterations' 'tribunal Appeals']

Case Brief

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Procedural Posture

Appeal / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether the appellants had obtained approval for building works in common property pursuant to s 65A of the Strata Schemes Management Act 1996' 'Whether the Tribunal erred in not exercising discretion under s 132 of the Strata Schemes Management Act 2015 to refuse relief or make an alternative order']

Ratio Decidendi

The Tribunal found no error in the original decision: the special resolution cited by appellants only permitted lodgement of a development application, not construction work. No valid authorisation under s 65A was given; appeals grounds regarding discretionary relief under s 132 failed because they were not raised below, and no miscarriage of justice or leave to appeal was demonstrated.

Court Disposition

Appeal dismissed. Leave to appeal refused to extent sought.

Orders

  • ['Leave to appeal is refused, to the extent that it was sought, and otherwise dismiss the appeal.' 'The stay made in the Appeal Panel on 8 May 2019 of orders 1(a) and (b) made by the Tribunal at first instance on 20 March 2019 is discharged.']