Franks v Consumer, Trader and Tenancy Tribunal - [2013] NSWSC 341

Supreme Court

New South Wales

Medium Neutral Citation: Franks v Consumer, Trader and Tenancy Tribunal [2013] NSWSC 341
Hearing dates: 7/03/2013
Decision date: 19 April 2013
Before: Fullerton J
Decision:
1. Quash part of the third order made by the Consumer, Trader and Tenancy Tribunal on 14 December 2012 so that the order reads:
3. Phillip Franks is to pay The Owners Corp SP-70672 costs as agreed or assessed.
2. Orders 1 and 2 made by the Consumer, Trader and Tenancy Tribunal on 14 December 2012 remain undisturbed.
3. Otherwise the summons is dismissed.
4. The plaintiff to pay the second defendant’s costs.

Catchwords: APPEAL - appeal from Consumer, Trader and Tenancy Tribunal - strata schemes adjudicator - jurisdiction
Legislation Cited: Civil Procedure Act 2005
Consumer, Trader and Tenancy Tribunal Act 2001
Strata Schemes Management Act 1996
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005
Cases Cited: Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501
Carnley v Grafton Ngerrie Local Aboriginal Land Council [2010] NSWSC 837
Great Lakes Council v Lani [2007] NSWLEC 681; 158 LGERA 1
Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; 239 CLR 531
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57, (2000) 204 CLR 82
Category: Principal judgment
Parties: Phillip Maurice Franks (Plaintiff)
Consumer, Trader and Tenancy Tribunal (1st Defendant)
The Owners - Strata Plan No. 70672 (2nd Defendant)
Representation: Counsel:
D Robinson SC/G George (Plaintiff)
D Knoll (2nd Defendant)
Solicitors:
Parramatta Lawyers (Plaintiff)
Grace Lawyers (2nd Defendant)

File Number(s): 2012/249755
Decision under appeal

Before:

Consumer Trader and Tenancy Tribunal

File Number(s):

SCS 11/18967; SCS 11/50143

JUDGMENT

The facts

At relevant times between 2007 and 2011 the plaintiff was the owner and occupier of unit 2203 in The Cove Apartments (the Apartments) situated at The Rocks in Sydney. Under the applicable strata scheme the common property vested in the second defendant (the Owners Corporation), a statutory corporation responsible for managing the Apartments.

By operation of s 44 of the Strata Schemes Management Act 1996 (the Act) the owners (and occupiers) of the Apartments are obliged to comply with by-laws adopted by the strata scheme for the mutual benefit of all owners (and occupiers).

By-law 7.1 provides:

7.1 You must not:

(a) make noise that interferes unreasonably with another owner or occupier;

(b) use language or behave in a way that is reasonably likely to offend or embarrass another owner or occupier or their visitors;

(c) obstruct a person's legal use of Common Property;

(d) use equipment that interferes with equipment or appliances used by the Owners Corporation or another owner or occupier;

(e) do anything that might damage the good reputation of Cove Apartments; or

(f) do anything in Cove Apartments that is illegal.

By s 138(1) of the Act the power to determine a strata scheme dispute vests in a Strata Schemes Adjudicator. That section provides:

An Adjudicator may make…

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.

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Details

Case: [2013] NSWSC 341
Decision Date: 19 April 2013

CaseChat Overview and Summary

The appeal before the court involved Franks, the appellant, and Consumer, Trader and Tenancy Tribunal, the respondent. Franks sought to appeal against a decision made by the strata schemes adjudicator within the tribunal, which had determined that the tribunal had jurisdiction to hear and determine an application for an injunction. The case was heard in the Supreme Court of Victoria. The central issue before the court was whether the tribunal had jurisdiction to hear and determine Franks' application for an injunction. This issue hinged on the interpretation of relevant statutory provisions, specifically whether the application for an injunction fell within the ambit of the tribunal's jurisdiction under the relevant statute.

The court examined the statutory framework governing the tribunal's jurisdiction and the nature of the application for an injunction. The tribunal's jurisdiction was delineated by specific statutory provisions, and the court had to determine whether Franks' application fell within these provisions. The court found that the application for an injunction was indeed within the tribunal's jurisdiction, as it related to a dispute concerning the management and regulation of strata schemes, which is within the scope of the tribunal's statutory mandate. Consequently, the court dismissed Franks' appeal, upholding the tribunal's decision that it had jurisdiction to hear and determine the application for an injunction. The tribunal's decision was affirmed, and no further orders were made.

Orders