Chen v The Owners - Strata Plan No 55792 - [2020] NSWSC 151

Supreme Court

New South Wales

Medium Neutral Citation: Chen v The Owners – Strata Plan No 55792 [2020] NSWSC 151
Hearing dates: 12 December 2019
Date of orders: 28 February 2020
Decision date: 28 February 2020
Jurisdiction: Common Law
Before: Wright J
Decision:
(1) Leave to appeal is refused.

(2) The plaintiff’s summons filed on 28 June 2019 is dismissed.
(3) The plaintiff is to pay the defendant’s costs as agreed or assessed.
Catchwords: APPEAL– civil – application for leave to appeal from decision of NCAT Appeal Panel – s 83 Civil and Administrative Tribunal Act 2013 (NSW) limited to appeal on a question of law by leave – competence and leave to appeal – whether questions of law – no questions of law raised –leave to appeal refused
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Civil Procedure Act 2005 (NSW)
Conveyancing Act 1919 (NSW)
Strata Schemes Development Act 2015 (NSW)
Strata Schemes Management Act 2015 (NSW)
Strata Schemes Management Regulation 2010
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; [2008] NSWCA 187
Council of the Municipality of Woollahra v Sved [1998] NSWCA 227
Davis v NSW Land and Housing Corporation [2016] NSWCA 325
Doppstadt Australia Pty Limited v Lovick and Son Developments Pty Limited (No 2) [2014] NSWCA 219
Doyle v Hall Chadwick [2012] NSWCA 175
PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
Wigmans v AMP Ltd [2019] NSWCA 243; (2019) 373 ALR 323
Texts Cited: Moses N J, Strata Titles (2nd Ed) (Thomson Reuters (Professional) Pty Ltd, Sydney)
Category: Principal judgment
Parties: Yan Ping Chen (Plaintiff)
The Owners –Strata Plan No 55792 (Defendant)
Representation:
Counsel:
Yan Ping Chen (Plaintiff –self represented)
D D Knoll AM (Defendant)
Solicitors:
Yan Ping Chen (Plaintiff –self represented)
Doyle Edwards Anderson Lawyers Pty Ltd (Defendant)

File Number(s): 2019/200861
Decision under appeal

Court or tribunal:

Civil and Administrative Tribunal

Jurisdiction:

Appeal Panel

Citation:

[2019] NSWCATAP 135

Date of Decision:

04 June 2019

Before:

G K Burton SC, Senior MemberP H Molony, Senior Member

File Number(s):

AP 19/06671

Judgment

By a summons filed on 28 June 2019, the plaintiff, Ms Chen, in effect sought leave to appeal from a decision of the Appeal Panel of the Civil and Administrative Tribunal of New South Wales given on 4 June 2019.
This summons was initially allocated to the Court of Appeal but, on 19 August 2019, the matter was transferred to the Common Law Division. A sealed copy of the summons and the supporting affidavit were served on the solicitors for the defendant, The Owners – Strata Plan No 55792 (the Owners Corporation) on 3 September 2019. It does not appear that a sealed copy of the summons or the affidavit had been served on the Owners Corporation prior to that time.
By a notice of motion filed on 13 September 2019, the Owners Corporation sought an order…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Chen v The Owners - Strata Plan No 55792 and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NSWSC 151
Decision Date: 28 February 2020

CaseChat Overview and Summary

In the case of Chen v The Owners – Strata Plan No 55792, the applicant, Mr Chen, sought leave to appeal a decision made by the Appeal Panel of the Civil and Administrative Tribunal of New South Wales (NCAT). The dispute involved issues related to strata management, specifically concerning the interpretation of the Strata Schemes Management Regulation 2016 (NSW). The applicant was dissatisfied with the Appeal Panel's determination and applied for leave to appeal to a higher court, pursuant to section 83 of the Civil and Administrative Tribunal Act 2013 (NSW).

The primary legal issue before the court was whether the questions raised by Mr Chen constituted questions of law, as required by the statutory provision for leave to appeal. The applicant argued that the Appeal Panel had misconstrued certain provisions of the Strata Schemes Management Regulation 2016 (NSW), leading to an unjust outcome. The court had to assess the nature of the questions presented to determine if they warranted judicial review.

The court found that the questions put forward by Mr Chen were predominantly factual and centred on the interpretation and application of the strata legislation. The court held that there was no substantive question of law that warranted appeal. Instead, the issues raised were matters of fact and discretion that were appropriately determined by the Appeal Panel. Consequently, the court concluded that Mr Chen had not demonstrated the presence of a question of law necessary for leave to appeal. Therefore, the application for leave to appeal was dismissed.

The court did not make any further orders beyond the refusal of leave to appeal, as the applicant had not successfully identified any legal errors warranting judicial intervention. The decision underscores the importance of distinguishing between questions of law and questions of fact in the context of appeals from the NCAT.

Orders