Gregory v Community Association DP No 270127 - [2024] NSWCATCD 42

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Gregory v Community Association DP No 270127 [2024] NSWCATCD 42
Hearing dates: 27 November 2023, final written submissions received 8 December 2023
Date of orders: 03 June 2024
Decision date: 03 June 2024
Jurisdiction: Consumer and Commercial Division
Before: D Robertson, Senior Member
Decision:
(1) The application is dismissed.
(2) Unless either party files submissions in accordance with order (3) below, there will be no order in relation to the costs of the proceedings.
(3) If either party seeks an order in relation to the costs of the proceedings, they may file, and serve upon the other party, submissions of no more than five pages, with any evidence in support, within 14 days of the publication of these orders.
(4) If a party files and serves submissions pursuant to Order (3) above, the other party may file and serve submissions in response of no more than five pages, with any evidence in support, within a further 14 days.
(5) Submissions in reply to submissions filed and served pursuant to Order (4) above, of no more than three pages, may be filed and served within a further 7 days.
(6) Any submissions filed pursuant to Orders (3) or (4) above must include submissions concerning whether an order should be made pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) dispensing with a hearing of the application for costs.

Catchwords:
LAND LAW – Community title – Community scheme – Community association – Where by-laws of community association require the approval of the community association for any alteration to a lot which alters the external appearance of the lot – Extent of the jurisdiction of the Tribunal to review a decision of a community association to refuse approval – Circumstances in which a decision of a community association may be set aside or overruled by the Tribunal.

Legislation Cited:
Community Land Development Act 1989 (NSW)
Community Land Development Act 2021 (NSW)
Community Land Management Act 1989 (NSW)
Community Land Management Act 2021 (NSW) ss 128, 193, 195
Environmental Planning and Assessment Act 1979 (NSW)
Strata Schemes Management Act 1996 (NSW) s 138
Strata Schemes Management Act 2015 (NSW) ss 126, 149, 232

Cases Cited:
Cooper v Owners – Strata Plan No 58068 (2020) 103 NSWLR 160; [2020] NSWCA 250
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Foley v Padley (1984) 154 CLR 349
Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425
Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2010] NSWCA 145; (2010) 174 LGERA 67
New South Wales v Beck [2013] NSWCA 437
Quo Warranto Pty Ltd v Goodman [2022] NSWCATAP 315
The Owners – Strata Plan No 37762 v Pham [2006] NSWSC 1287
The Owners – Strata Plan Number 68255 v Downs; Downs v The Owners – Strata Plan No 68255 [2021] NSWCATCD 34
The Owners of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc

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: [2024] NSWCATCD 42
Decision Date: 03 June 2024

CaseChat Overview and Summary

In the matter of Gregory v Community Association DP No 270127, the dispute revolved around the refusal by the community association to approve alterations to a lot within a community title scheme. The applicant, Gregory, sought to make changes to the external appearance of his lot, which required the community association's approval as per the by-laws. When the association denied the approval, Gregory approached the Civil and Administrative Tribunal (CAT) to review the decision. The central legal issues in this case pertained to the scope of the Tribunal's jurisdiction to review decisions made by the community association and the circumstances under which such decisions could be set aside or overruled.

The CAT meticulously examined the statutory framework governing community title schemes and the role of the community association within that framework. The court held that the Tribunal's jurisdiction to review decisions of the community association was limited, and such decisions could only be set aside if there was evidence of a failure to comply with the statutory requirements or procedural unfairness. The Tribunal found that the association's decision was within its authority and adhered to the requisite procedures, thus no grounds for setting aside the decision existed. Consequently, the application to review the association's decision was dismissed.

Following the dismissal, the CAT considered the orders regarding the costs of the proceedings. The court mandated that unless either party sought an order for costs, no such order would be made. However, if either party did seek an order for costs, they were required to submit concise written submissions, with any supporting evidence, within a specified timeframe. The opposing party could then respond in kind, and any reply submissions had to be filed within a further limited period. Additionally, the submissions concerning costs could include arguments for dispensing with a hearing under section 50 of the Civil and Administrative Tribunal Act 2013 (NSW). The court's orders provided a clear framework for the potential resolution of costs without unnecessarily prolonging the proceedings.

Orders

Orders of the court

(1) The application is dismissed.

(2) Unless either party files submissions in accordance with order (3) below, there will be no order in relation to the costs of the proceedings.

(3) If either party seeks an order in relation to the costs of the proceedings, they may file, and serve upon the other party, submissions of no more than five pages, with any evidence in support, within 14 days of the publication of these orders.

(4) If a party files and serves submissions pursuant to Order (3) above, the other party may file and serve submissions in response of no more than five pages, with any evidence in support, within a further 14 days.

(5) Submissions in reply to submissions filed and served pursuant to Order (4) above, of no more than three pages, may be filed and served within a further 7 days.

(6) Any submissions filed pursuant to Orders (3) or (4) above must include submissions concerning whether an order should be made pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) dispensing with a hearing of the application for costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Gregory v Community Association DP No 270127 [2024] NSWCATCD 42
Hearing dates:	27 November 2023, final written submissions received 8 December 2023
Date of orders:	03 June 2024
Decision date:	03 June 2024
Jurisdiction:	Consumer and Commercial Division
Before:	D Robertson, Senior Member
Decision:	(1) The application is dismissed. (2) Unless either party files submissions in accordance with order (3) below, there will be no order in relation to the costs of the proceedings. (3) If either party seeks an order in relation to the costs of the proceedings, they may file, and serve upon the other party, submissions of no more than five pages, with any evidence in support, within 14 days of the publication of these orders. (4) If a party files and serves submissions pursuant to Order (3) above, the other party may file and serve submissions in response of no more than five pages, with any evidence in support, within a further 14 days. (5) Submissions in reply to submissions filed and served pursuant to Order (4) above, of no more than three pages, may be filed and served within a further 7 days. (6) Any submissions filed pursuant to Orders (3) or (4) above must include submissions concerning whether an order should be made pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) dispensing with a hearing of the application for costs.
Catchwords:	LAND LAW – Community title – Community scheme – Community association – Where by-laws of community association require the approval of the community association for any alteration to a lot which alters the external appearance of the lot – Extent of the jurisdiction of the Tribunal to review a decision of a community association to refuse approval – Circumstances in which a decision of a community association may be set aside or overruled by the Tribunal.
Legislation Cited:	Community Land Development Act 1989 (NSW) Community Land Development Act 2021 (NSW) Community Land Management Act 1989 (NSW) Community Land Management Act 2021 (NSW) ss 128, 193, 195 Environmental Planning and Assessment Act 1979 (NSW) Strata Schemes Management Act 1996 (NSW) s 138 Strata Schemes Management Act 2015 (NSW) ss 126, 149, 232
Cases Cited:	Cooper v Owners – Strata Plan No 58068 (2020) 103 NSWLR 160; [2020] NSWCA 250 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 Foley v Padley (1984) 154 CLR 349 Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425 Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2010] NSWCA 145; (2010) 174 LGERA 67 New South Wales v Beck [2013] NSWCA 437 Quo Warranto Pty Ltd v Goodman [2022] NSWCATAP 315 The Owners – Strata Plan No 37762 v Pham [2006] NSWSC 1287 The Owners – Strata Plan Number 68255 v Downs; Downs v The Owners – Strata Plan No 68255 [2021] NSWCATCD 34 The Owners of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc