The Owners - Strata Plan No. 74442 v Harrison [2023] NSWCATAP 144

The Owners - Strata Plan No. 74442 v Harrison [2023] NSWCATAP 144

No error, breach of procedural fairness, or denial of natural justice was established. The Tribunal was entitled to prefer Clisdells and had jurisdiction to make the order for appointment as compulsory strata manager notwithstanding the terms and conditions not being in evidence at first instance, as they did in fact exist and were sufficiently identified in the order.

Parties
Appellant: The Owners Strata Plan No. 74442; First Respondent: Mandana Harrison; Second Respondent: Milo Brogan; Third Respondent: Carolyn Arnett; Fourth Respondent: Vasiliki Tsiavos; Fifth Respondent: Raveen Prakesh; Sixth Respondent: Saliya Gunawardena; Seventh Respondent: Petar Trajkovsji; Eighth Respondent: Sandor Jakucs
Jurisdiction
Australia
Judgment Date
30 May 2023
Procedural Posture
Internal Appeal / Determination of Appeal After Hearing and Consideration of Leave to Appeal and New Evidence
Outcome
Appeal dismissed after limited grant of leave to appeal; costs to be determined following written submissions.
Legal Topics
Strata Schemes, Apprehended Bias, Procedural Fairness, Hearing Rule, Compulsory Strata Management, Conduct of Tribunal Proceedings
Land Law Strata Schemes Apprehended Bias Procedural Fairness Hearing Rule Compulsory Strata Management Conduct of Tribunal Proceedings

Case Brief

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Parties

The Owners Strata Plan No. 74442

Appellant

Mandana Harrison

First Respondent

Milo Brogan

Second Respondent

Carolyn Arnett

Third Respondent

Vasiliki Tsiavos

Fourth Respondent

Raveen Prakesh

Fifth Respondent

Saliya Gunawardena

Sixth Respondent

Petar Trajkovsji

Seventh Respondent

Sandor Jakucs

Eighth Respondent

Procedural Posture

Internal Appeal / Determination of Appeal After Hearing and Consideration of Leave to Appeal and New Evidence

Legal Issues

  1. 1 Whether procedural fairness was denied by apprehended bias, breach of the hearing rule, or failure to comply with the Member Code of Conduct
  2. 2 Whether Tribunal erred in preferring the appointment of Clisdells as compulsory strata manager over SMS
  3. 3 Whether Tribunal erred by appointing a compulsory strata manager in the absence of terms and conditions in evidence as required by s 237(5) of the Strata Schemes Management Act 2015 (NSW)

Ratio Decidendi

No error, breach of procedural fairness, or denial of natural justice was established. The Tribunal was entitled to prefer Clisdells and had jurisdiction to make the order for appointment as compulsory strata manager notwithstanding the terms and conditions not being in evidence at first instance, as they did in fact exist and were sufficiently identified in the order.

Court Disposition

Appeal dismissed after limited grant of leave to appeal; costs to be determined following written submissions.

Orders

  • The time for filing the Notice of Appeal is extended to 11 May 2022.
  • Leave to appeal in respect of grounds 1 – 3 is granted to the extent it is required.