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Colbert v MacDonald

Colbert v MacDonald

Case [2016] NSWSC 1291 15 September 2016

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Colbert v MacDonald & Ors [2016] NSWSC 1291
Hearing dates: 28 July 2016
Decision date: 15 September 2016
Jurisdiction: Common Law - Administrative Law
Before: N Adams J
Decision:
(1) Quash the decision made by the third defendant on 28 October 2015.
(2) That the parties be heard further as to costs.

Catchwords:
ADMINISTRATIVE LAW – judicial review – where plaintiff claims that he was denied procedural fairness – whether plaintiff received notice of application to Adjudicator – question of fact – unnecessary to consider ground
ADMINISTRATIVE LAW – judicial review of decision of Strata Schemes Adjudicator – whether decision affected by jurisdictional error – whether Adjudicator purported to exercise the wrong power – where Adjudicator did not comply with statutory pre-conditions to exercise of correct power – jurisdictional error made out - relief granted
Legislation Cited: Civil and Administrative Regulation 2013 (NSW), cl 9(1)
Civil and Administrative Tribunal Act 2013 (NSW), ss 34, 79
Evidence Act 1995 (NSW), s 69(1)
Strata Schemes Management Act 1996 (NSW), ss 51, 52, 65A, 135, 136, 140, 144, 158, 171, 177, 217, 236
Supreme Court Act 1970 (NSW), s 69
Cases Cited: Annetts v McCann (1990) 170 CLR 596
Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59
Brown v Bluestone Property Services Pty Ltd [2010] NSWSC 869
Buzrio Pty Limited v Consumer, Trader & Tenancy Tribunal [2009] NSWSC 836
Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44
Mahenthirarasa v State Rail Authority of New South Wales (2008) 72 NSWLR 273; [2008] NSWCA 201
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Citizenship v Khadgi (2010) 274 ALR 438; [2010] FCAFC 145
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Muin v Refugee Review Tribunal (2002) 76 ALJR 966
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Category: Principal judgment
Parties: Jamey Colbert (Plaintiff)
John MacDonald (First Defendant)
The Owners – Strata Plan 15005 (Second Defendant)
Peter Smith (Third Defendant)
Representation:
Counsel:
J E Lazarus with M E Sheldon (Plaintiff)
In person (First Defendant)
Solicitors:
Kennedys Law Firm (Plaintiff)
Chambers Russell Lawyers (Second Defendant)
NSW Crown Solicitor (Third Defendant)

File Number(s): 2015/00357448
Publication restriction: Nil

Judgment

These proceedings for judicial review arise from a dispute among lot owners in an apartment building in Darling Point as to whether one of them should be permitted to build a balcony onto his unit.
The plaintiff invokes this Court’s supervisory jurisdiction, regulated by s 69 of the Supreme Court Act 1970 (NSW), in respect of a decision made on 28 October 2015 by the third defendant in his capacity as a Strata Schemes Adjudicator and Registrar of the Civil and Administrative Tribunal of NSW…

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.

Continue reading Colbert v MacDonald

Details

AGLC: Colbert v MacDonald [2016] NSWSC 1291
Case: [2016] NSWSC 1291
Decision Date: 15 September 2016

CaseChat Overview and Summary

The plaintiff in this case, Mr Colbert, sought judicial review of a decision made by a Strata Schemes Adjudicator. The dispute arose from a strata dispute, and the plaintiff argued that he was denied procedural fairness in the proceedings. Specifically, he claimed that he did not receive notice of the application to the Adjudicator, which he believed affected the fairness of the process. The matter was heard in the Supreme Court of Queensland.

The central legal issues before the court were whether the plaintiff had indeed been denied procedural fairness by not receiving notice of the application to the Adjudicator, and if the Adjudicator had exercised the wrong power by not complying with the statutory pre-conditions. The court was required to determine whether these alleged errors constituted a jurisdictional error that would render the Adjudicator's decision invalid.

The court found that while it was unnecessary to determine whether the plaintiff had received notice of the application, as the Adjudicator had indeed made a jurisdictional error. The Adjudicator had not complied with the statutory pre-conditions before exercising the power to make the decision, which constituted a jurisdictional error. Consequently, the decision of the Adjudicator was affected by jurisdictional error. The court granted the relief sought by the plaintiff, quashing the decision of the Adjudicator.

The final orders of the court were that the decision of the Strata Schemes Adjudicator be quashed, and that the matter be remitted back to the Adjudicator for reconsideration in light of the court's findings. The court did not make any orders regarding costs.

Orders