The Owners Strata Plan No 68976 v Nicholls [2018] NSWSC 270

The Owners Strata Plan No 68976 v Nicholls [2018] NSWSC 270

None of the grounds of appeal raised by the plaintiff identified an arguable question of law under s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW). Both NCAT and the Adjudicator applied the correct legal test for By-law 17 on available evidence, provided adequate reasons, and procedural fairness was not denied. Issues raised were factual or against weight of evidence, not legal errors. Therefore, leave to appeal was refused and the summons dismissed.

Jurisdiction
Australia
Judgment Date
06 March 2018
Procedural Posture
Appeal / Application for Leave to Appeal Judgment of NCAT in Supreme Court
Outcome
Leave to appeal refused, proceedings dismissed, costs ordered against plaintiff.
Legal Topics
['strata Schemes by Law Compliance' 'appeal on Question of Law' 'procedural Fairness' 'interpretation of by Laws']
['strata Law' 'administrative Law' 'civil Procedure'] ['strata Schemes by Law Compliance' 'appeal on Question of Law' 'procedural Fairness' 'interpretation of by Laws']

Case Brief

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Procedural Posture

Appeal / Application for Leave to Appeal Judgment of NCAT in Supreme Court

Legal Issues

  1. 1 ["Whether NCAT erred in interpretation of By-law 17 relating to 'in keeping with the rest of the building'" 'Whether NCAT failed to provide sufficient reasons regarding By-law 17' 'Whether denial of procedural fairness occurred for failure to allow cross-examination and admission of evidence' "Whether NCAT's decision was without evidence or against weight of evidence" 'Whether rejection of expert report (Marchese Report) was procedurally fair']

Ratio Decidendi

None of the grounds of appeal raised by the plaintiff identified an arguable question of law under s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW). Both NCAT and the Adjudicator applied the correct legal test for By-law 17 on available evidence, provided adequate reasons, and procedural fairness was not denied. Issues raised were factual or against weight of evidence, not legal errors. Therefore, leave to appeal was refused and the summons dismissed.

Court Disposition

Leave to appeal refused, proceedings dismissed, costs ordered against plaintiff.

Orders

  • ['Leave to appeal refused' "Plaintiff's summons dismissed" "Plaintiff to pay defendants' costs of and incidental to the proceedings" 'Proceedings dismissed']