Malcolm Patrick and Margarita Patrick v The Owners-Strata Plan No 9079 [2014] NSWCATCD 232

Malcolm Patrick and Margarita Patrick v The Owners-Strata Plan No 9079 [2014] NSWCATCD 232

The affidavit evidence established that the owners corporation received and became aware of the Adjudicator's order on 15 May 2014, rebutting the postal service presumption in s 76. The order therefore took effect on 15 May 2014, the 21-day appeal period expired on 5 June 2014, and the appeal lodged on 6 June 2014 was out of time. Because s 177(4) of the Strata Schemes Management Act 1996 excludes the Tribunal's power to extend time under s 41 of the Civil and Administrative Tribunal Act 2013, the Tribunal had no jurisdiction and was required to dismiss the appeal.

Jurisdiction
Australia
Judgment Date
02 December 2014
Procedural Posture
Appeal Pursuant to S 177 of the Strata Schemes Management Act 1996 Against the Order of a Strata Adjudicator / Jurisdiction Determination on Whether the Appeal Was Filed Out of Time
Outcome
The appeal is dismissed and the Adjudicator's decision is affirmed.
Legal Topics
['jurisdiction' 'appeal Time Limits' 'service by Post' 'rebuttable Presumption of Service' 'extension of Time']
['strata Schemes' 'administrative Law' 'civil Procedure'] ['jurisdiction' 'appeal Time Limits' 'service by Post' 'rebuttable Presumption of Service' 'extension of Time']

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Procedural Posture

Appeal Pursuant to S 177 of the Strata Schemes Management Act 1996 Against the Order of a Strata Adjudicator / Jurisdiction Determination on Whether the Appeal Was Filed Out of Time

Legal Issues

  1. 1 ["Whether the Tribunal had jurisdiction to hear and determine the appeal against the Strata Adjudicator's order." "Whether the Adjudicator's order took effect on 15 May 2014 when actually received by the owners corporation or on the fourth working day after posting under s 76 of the Interpretation Act." 'Whether the appeal lodged on 6 June 2014 was lodged not later than 21 days after the order took effect.' 'Whether the Tribunal could extend time under s 41 of the Civil and Administrative Tribunal Act 2013 despite s 177(4) of the Strata Schemes Management Act 1996.']

Ratio Decidendi

The affidavit evidence established that the owners corporation received and became aware of the Adjudicator's order on 15 May 2014, rebutting the postal service presumption in s 76. The order therefore took effect on 15 May 2014, the 21-day appeal period expired on 5 June 2014, and the appeal lodged on 6 June 2014 was out of time. Because s 177(4) of the Strata Schemes Management Act 1996 excludes the Tribunal's power to extend time under s 41 of the Civil and Administrative Tribunal Act 2013, the Tribunal had no jurisdiction and was required to dismiss the appeal.

Court Disposition

The appeal is dismissed and the Adjudicator's decision is affirmed.

Orders

  • ['The appeal is dismissed.' "The Adjudicator's decision is affirmed." 'The applicant may make written submissions as to costs by filing those submissions with the Tribunal and serving a copy on the respondent within 14 days of the publication of this decision.' 'The respondent may make written submissions as to...