Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Colman v The Owners – Strata Plan 61131 [2025] NSWCA 203 Hearing dates: 26 August 2025 Date of orders: 4 September 2025 Decision date: 04 September 2025 Before: Stern JA; Price AJA Decision: (1) The summons filed by Mr Colman on 22 May 2025 seeking leave to appeal from the orders of Kirk J on 20 February 2025 is dismissed.
(2) The applicant is to pay the respondent’s costs.
Catchwords: CIVIL PROCEDURE — Court of Appeal — application for leave to appeal — whether primary judge constructively failed to exercise jurisdiction in determining whether the respondent had breached its obligations under s 106 of the Strata Schemes Management Act 2015 (NSW) — where none of the applicant’s contentions of error identified any arguable constructive failure to exercise jurisdiction by primary judge — where applicant therefore failed to identify issue of principle, question of public importance or reasonably clear injustice going beyond something merely arguable — where leave to appeal refused with costs
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 80, 83(1)
Strata Schemes Management Act 2015 (NSW), ss 9, 106, 232
Cases Cited: Colman v The Owners – Strata Plan 61131 [2023] NSWCATAP 308
Colman v The Owners – Strata Plan 61131 [2025] NSWSC 63
CZA19 v Federal Circuit Court of Australia (2021) 285 FCR 447; [2021] FCAFC 57
Day v SAS Trustee Corporation [2021] NSWCA 71
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088
Kassam v Hazzard; Henry v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299
Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209
Category: Principal judgment Parties: Gary Colman (Applicant)
The Owners – Strata Plan 61131 (Respondent)Representation: Counsel:
Solicitors:
G Colman (in person)
DF Elliott (Respondent)
Grace Lawyers Pty Ltd (Respondent)
File Number(s): 2025/100515 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- Supreme Court
- Jurisdiction:
- Common Law
- Citation:
- Date of Decision:
- 20 February 2025
- Before:
- Kirk J
- File Number(s):
- 2023/454959
JUDGMENT
-
THE COURT: The applicant, Mr Gary Colman, is the owner of Lot 147 in a strata scheme at a residential building in Pyrmont, NSW, known as the Palladium. Lot 147 is an apartment on level 10 of the Palladium and Mr Colman’s title includes a rooftop terrace on level 11, comprising a western and eastern terrace. There are also common property areas on level 11. The respondent is the owners corporation of the strata scheme for the Palladium under s 9 of the Strata Schemes Management Act 2015 (NSW) (SSM Act). The dispute giving rise to these proceedings relates to requests made by Mr Colman in 2019 and 2020 for approval of building works to be carried out on the terrace of Lot 147, some of which affected common property.
-
Some of these requests were approved but an application dated 7 January 2020 by Mr Colman for approval of building…
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- Case
- [2025] NSWCA 203
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court of Appeal was whether the primary judge had constructively failed to exercise jurisdiction in determining the alleged breach of section 106. Mr Colman contended that the primary judge's decision constituted such a failure.
The Court of Appeal found that none of the applicant's contentions of error identified any arguable constructive failure to exercise jurisdiction by the primary judge. Consequently, Mr Colman failed to identify an issue of principle, a question of public importance, or a reasonably clear injustice that went beyond something merely arguable.
Accordingly, the summons seeking leave to appeal was dismissed, and the applicant was ordered to pay the respondent's costs.
Orders
Orders of the court
(1) The summons filed by Mr Colman on 22 May 2025 seeking leave to appeal from the orders of Kirk J on 20 February 2025 is dismissed.
(2) The applicant is to pay the respondent’s costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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