The Owners Strata Plan No 79642 v Five D Pty Ltd [2020] NSWCATAP 110

The Owners Strata Plan No 79642 v Five D Pty Ltd [2020] NSWCATAP 110

The Appeal Panel found no error of law or other error sufficient to warrant leave to appeal. The primary Tribunal correctly construed the original fencing orders, found substantial compliance (with any non-compliance inconsequential), and weighed evidence without procedural unfairness. The factual findings were open on the evidence and not against the weight of evidence. No substantial miscarriage of justice was established, so leave to appeal was refused and the appeal dismissed.

Jurisdiction
Australia
Judgment Date
15 June 2020
Procedural Posture
Internal Appeal (ncat Appeal Panel) / Leave to Appeal and Merits Appeal Determination
Outcome
Leave to appeal refused; appeal dismissed
Legal Topics
['dividing Fences' 'tribunal Procedure' 'renewal Proceedings' 'appeals']
['property Law' 'civil Procedure'] ['dividing Fences' 'tribunal Procedure' 'renewal Proceedings' 'appeals']

Case Brief

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Procedural Posture

Internal Appeal (ncat Appeal Panel) / Leave to Appeal and Merits Appeal Determination

Legal Issues

  1. 1 ["Whether there was an error of law or other error justifying leave to appeal regarding the Tribunal's dismissal of renewal proceedings relating to compliance with fencing orders" 'Whether the Tribunal failed to properly interpret the original orders as to fence position' 'Whether there was consequential error regarding exclusion of evidence and impact on rights of way' 'Whether there was procedural or substantial unfairness justifying leave to appeal']

Ratio Decidendi

The Appeal Panel found no error of law or other error sufficient to warrant leave to appeal. The primary Tribunal correctly construed the original fencing orders, found substantial compliance (with any non-compliance inconsequential), and weighed evidence without procedural unfairness. The factual findings were open on the evidence and not against the weight of evidence. No substantial miscarriage of justice was established, so leave to appeal was refused and the appeal dismissed.

Court Disposition

Leave to appeal refused; appeal dismissed

Orders

  • ['Leave to appeal is refused.' 'The appeal is dismissed.']