Cahn v The Owners – Strata Plan No 586 [2018] NSWCATAP 234

Procedural Posture

Appeal From NCAT Consumer and Commercial Division Order Requiring Removal of Dog From Strata Lot and Common Property / Application for Leave to Appeal and Appeal Before NCAT Appeal Panel

Legal Issues

1. 1 ['Whether the Tribunal denied the appellant procedural fairness.' 'Whether the Tribunal erroneously concluded the appellant conceded Lola was not an assistance animal or otherwise erred in proceeding on that basis.' "Whether the Tribunal erred in its findings of fact concerning Lola's conduct and the appellant's management of Lola on common property." 'Whether the by-law requiring approval to keep an animal was harsh, unconscionable or oppressive.']

Ratio Decidendi

Leave to appeal was refused and the appeal dismissed because the appellant did not establish a denial of procedural fairness; the evidence did not establish that Lola was an assistance animal within the meaning of the Disability Discrimination Act, 1992 (Cth); the Tribunal was entitled to prefer the Owners Corporation's evidence about Lola roaming unleashed, barking and defecating on common property; no substantial miscarriage of justice was shown; and the appellant did not establish that the relevant by-law itself was harsh, unconscionable or oppressive.

Court Disposition

Leave to appeal refused; appeal dismissed; no order for costs.

Orders

• ['Leave to appeal is refused and the appeal is dismissed.' 'No order for costs.' 'The solicitor for the respondent is not to publish or disclose the contents of MFI 1 or MFI 2 to the respondent or any other person without an order of the Tribunal.']