Kendal v Mackay [2021] NSWCATAP 309

Kendal v Mackay [2021] NSWCATAP 309

The procedural fairness ground failed because the appellants were on notice before the Tribunal hearing that the respondent sought removal of the fence and water meter and restoration of common property, and they identified no evidence or submissions that could have produced a different result. Ground 2 succeeded because new evidence showed Tweed Shire Council refused to disconnect the separate water meter, making compliance with that part of the Tribunal's order impossible and causing a substantial miscarriage of justice if the order remained unchanged. The order was therefore varied to remove the requirement concerning restoration to a single water meter, and the proceedings were...

Jurisdiction
Australia
Judgment Date
07 October 2021
Procedural Posture
Strata Title Appeal / Appeal Panel Decision on Extension of Time, Leave to Appeal and Appeal From Orders of the Consumer and Commercial Division
Outcome
Time to appeal extended; leave to appeal granted on Ground 2; appeal upheld in part; Tribunal order varied; proceedings remitted for consideration of appointment of a strata manager and joinder of Debbie Lacey.
Legal Topics
['common Property' 'unauthorised Works on Common Property' 'procedural Fairness' 'new Evidence on Appeal' 'appointment of Strata Managing Agent' 'variation of Tribunal Orders']
['land Law' 'strata Title' 'administrative Law'] ['common Property' 'unauthorised Works on Common Property' 'procedural Fairness' 'new Evidence on Appeal' 'appointment of Strata Managing Agent' 'variation of Tribunal Orders']

Case Brief

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Procedural Posture

Strata Title Appeal / Appeal Panel Decision on Extension of Time, Leave to Appeal and Appeal From Orders of the Consumer and Commercial Division

Legal Issues

  1. 1 ['Whether the appellants were denied procedural fairness because they were allegedly unaware before the Tribunal hearing that removal of the fence and water meter was sought by reference to s 108 of the Strata Schemes Management Act 2015 (NSW).' "Whether new evidence that Tweed Shire Council refused to disconnect the separate water meter showed that the appellants could not comply with the Tribunal's order and that the order should be varied." 'Whether the evidence justified remitting the proceedings for consideration of appointing a strata managing agent under s 237 of the Strata Schemes Management Act 2015 (NSW).']

Ratio Decidendi

The procedural fairness ground failed because the appellants were on notice before the Tribunal hearing that the respondent sought removal of the fence and water meter and restoration of common property, and they identified no evidence or submissions that could have produced a different result. Ground 2 succeeded because new evidence showed Tweed Shire Council refused to disconnect the separate water meter, making compliance with that part of the Tribunal's order impossible and causing a substantial miscarriage of justice if the order remained unchanged. The order was therefore varied to remove the requirement concerning restoration to a single water meter, and the proceedings were...

Court Disposition

Time to appeal extended; leave to appeal granted on Ground 2; appeal upheld in part; Tribunal order varied; proceedings remitted for consideration of appointment of a strata manager and joinder of Debbie Lacey.

Orders

  • ['Time to appeal is extended up to and including 9 July 2021.' 'Leave to appeal is granted in relation to Ground 2.' 'Appeal upheld in part.' 'Order 1 made by the Tribunal on 8 June 2021 is varied so that it reads: "Within 2 calendar months of the date of these orders, the respondents are to reinstate the common...