The Owners – Strata Plan No 69140 v Drewe [2017] NSWSC 845

The Owners – Strata Plan No 69140 v Drewe [2017] NSWSC 845

Leave was granted and the appeal allowed because the Senior Member's decision disclosed multiple errors of law. The Tribunal failed to apply the correct inquiry under s 140 of the Strata Schemes Management Act 1996 (NSW), misconstrued the statutory effect of s 65A and the absence of a by-law, relied on irrelevant matters including the abandoned window proposal, made findings not established by or contrary to the evidence, ignored objective evidence as to visibility of the timber doors, denied procedural fairness concerning the alleged draft by-law, and gave inadequate reasons. These errors undermined the Tribunal's conclusion that the Owners Corporation unreasonably refused retrospective...

Jurisdiction
Australia
Judgment Date
27 June 2017
Procedural Posture
Application for Judicial Review and Alternative Application for Leave to Appeal on a Question of Law Under S 83 of the Civil and Administrative Tribunal Act 2013 (nsw) / Supreme Court Determination of Leave and Appeal From NCAT Decision Dated 8 August 2016
Outcome
Leave granted; appeal allowed; Tribunal decision dated 8 August 2016 set aside.
Legal Topics
['judicial Review' 'appeal on a Question of Law' 'error of Law' 'jurisdictional Error' 'procedural Fairness' 'strata Common Property Alterations' 'retrospective Approval of Unauthorised Works' 'owners Corporation Consent']
['administrative Law' 'strata Schemes'] ['judicial Review' 'appeal on a Question of Law' 'error of Law' 'jurisdictional Error' 'procedural Fairness' 'strata Common Property Alterations' 'retrospective Approval of Unauthorised Works' 'owners Corporation Consent']

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Procedural Posture

Application for Judicial Review and Alternative Application for Leave to Appeal on a Question of Law Under S 83 of the Civil and Administrative Tribunal Act 2013 (nsw) / Supreme Court Determination of Leave and Appeal From NCAT Decision Dated 8 August 2016

Legal Issues

  1. 1 ['Whether leave should be granted under s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) to appeal on a question of law.' 'Whether the availability of an effective statutory appeal remedy meant relief by judicial review under s 69 of the Supreme Court Act 1970 (NSW) should not be granted.' 'Whether the Tribunal misconstrued and misapplied s 140 of the Strata Schemes Management Act 1996 (NSW) when deciding whether the Owners Corporation unreasonably refused consent.' 'Whether the Tribunal misconstrued s 65A of the Strata Schemes Management Act 1996 (NSW) concerning the need for a special resolution and by-law for alterations to common property.' 'Whether the Tribunal took irrelevant considerations into account, failed to consider relevant considerations, denied procedural fairness, or gave inadequate reasons.']

Ratio Decidendi

Leave was granted and the appeal allowed because the Senior Member's decision disclosed multiple errors of law. The Tribunal failed to apply the correct inquiry under s 140 of the Strata Schemes Management Act 1996 (NSW), misconstrued the statutory effect of s 65A and the absence of a by-law, relied on irrelevant matters including the abandoned window proposal, made findings not established by or contrary to the evidence, ignored objective evidence as to visibility of the timber doors, denied procedural fairness concerning the alleged draft by-law, and gave inadequate reasons. These errors undermined the Tribunal's conclusion that the Owners Corporation unreasonably refused retrospective...

Court Disposition

Leave granted; appeal allowed; Tribunal decision dated 8 August 2016 set aside.

Orders

  • ['Leave is granted under s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) to appeal on a question of law.' 'The appeal is allowed.' 'The decision of the Tribunal dated 8 August 2016 is set aside.']