The Owners – Strata Plan No 70871 v Turek [2020] NSWSC 1027

The Owners – Strata Plan No 70871 v Turek [2020] NSWSC 1027

The Tribunal was entitled, in the exercise of discretion, to adjourn proceedings where preconditions for substantive relief had not yet been satisfied, rather than being obliged to dismiss them; however, where an order for costs did not reflect the Tribunal's reasons, the discrepancy should be corrected. The Appeal Panel's finding of special circumstances for costs was based on erroneous conclusions and should be set aside.

Jurisdiction
Australia
Judgment Date
05 August 2020
Procedural Posture
Appeal / Decision on Leave and Partial Allowance of Appeal From Tribunal Appeal Panel
Outcome
Appeal allowed in part; leave to appeal granted in part; costs orders varied/reserved.
Legal Topics
['leave to Appeal' 'jurisdiction of Tribunal' 'case Management Orders' 'strata Schemes Management Act' 'costs Orders']
['administrative Law' 'strata Title Law' 'civil Procedure'] ['leave to Appeal' 'jurisdiction of Tribunal' 'case Management Orders' 'strata Schemes Management Act' 'costs Orders']

Case Brief

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Procedural Posture

Appeal / Decision on Leave and Partial Allowance of Appeal From Tribunal Appeal Panel

Legal Issues

  1. 1 ['Whether Tribunal had power to adjourn proceedings when precondition for order under s 131 Strata Schemes Management Act 2015 (NSW) not met' 'Whether Tribunal could make orders requiring owners corporation to hold EGM to consider draft licence' "Whether the Tribunal's costs order and the Appeal Panel's refusal to correct it were legally erroneous" 'Whether special circumstances warranted adverse costs order by Appeal Panel']

Ratio Decidendi

The Tribunal was entitled, in the exercise of discretion, to adjourn proceedings where preconditions for substantive relief had not yet been satisfied, rather than being obliged to dismiss them; however, where an order for costs did not reflect the Tribunal's reasons, the discrepancy should be corrected. The Appeal Panel's finding of special circumstances for costs was based on erroneous conclusions and should be set aside.

Court Disposition

Appeal allowed in part; leave to appeal granted in part; costs orders varied/reserved.

Orders

  • ['Grant leave to the plaintiff to appeal on grounds 1, 2, 3, 6, 7 and 8 under s 83 of the Civil and Administrative Tribunal Act 2013 (NSW)' 'Refuse leave to appeal on grounds 4 and 5' 'Allow the appeal in part' 'Set aside orders made by the Appeal Panel on 28 February 2020 to refuse leave to appeal and dismiss the...