Kaye v The Owners - Strata Plan No 4350 - [2022] NSWSC 1386

Supreme Court

New South Wales

Medium Neutral Citation: Kaye v The Owners – Strata Plan No 4350 [2022] NSWSC 1386
Hearing dates: 19 September 2022
Date of orders: 14 October 2022
Decision date: 14 October 2022
Jurisdiction: Common Law
Before: Basten AJ
Decision:
(1) With respect to the decision of the Appeal Panel given on 25 May 2022 dismissing the appeal from the senior member –
(a) Grant the plaintiffs leave to appeal, pursuant to s 83(1) of the Civil and Administrative Tribunal Act 2013;
(b) Dismiss the appeal.
(2) With respect to the application for leave to appeal from the decision of the Appeal Panel given on 28 July 2022 awarding costs – refuse the plaintiffs leave to appeal.
(3) Order that the plaintiffs pay the defendant’s costs in this Court.

Catchwords:
LAND LAW – strata title – common property – two by-laws to obtain rights to exclusive use and enjoyment of common property – first proposal offered repairs and maintenance – second proposal offered monetary compensation – other lot owners concerned about noise, loss of privacy, lack of compensation, floodgates for applications – whether refusal of first proposal unreasonable under Strata Schemes Management Act 2015 (NSW), s 149(1) – Tribunal not required to weigh interests in determining whether refusal unreasonable – other lot owners entitled to have regard to own interests and rely on experience and beliefs
LAND LAW – strata title – Strata Schemes Management Act 2015 (NSW), s 149(2) – s 149(2) considerations addressed to whether to order making of by-law – proponents’ rights and expectations not to be weighed against other lot owners’ interests
COSTS – party/party – appeal from NCAT Appeal Panel – finding of special circumstances – no mandatory considerations – unsuccessful appeal and fact of legal representation permissible considerations – finding of complexity – Tribunal’s power to award costs absent special circumstances – Civil and Administrative Tribunal Act 2013 (NSW), ss 35, 60 – Civil and Administrative Tribunal Rules 2014 (NSW), rr 38 and 38A

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), Pt 4, Sch 4, ss 4, 17, 25, 35, 60, 80, 81, 83
Civil Procedure Act 2005 (NSW), s 98
Strata Schemes Management Act 2015 (NSW), Pt 7, Div 3, ss 5, 106, 126, 141, 142, 149
Supreme Court Act 1970 (NSW), s 101
Civil and Administrative Tribunal Rules 2014 (NSW), rr 38, 38A
Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:
Capcelea v The Owners –StrataPlan No 48887 [2019] NSWCATCD 27
Cooper v The Owners – Strata Plan No 58068 (2020) 103 NSWLR 160; [2020] NSWCA 250
Emery Kaye v The Owners – Strata Plan No 4350 (Civil and Administrative Tribunal (NSW), 29 November 2021, unrep)

Category: Principal judgment
Parties: Adam Emery Kaye, Bella Rebecca Kaye, Robert George Kaye (Plaintiffs)
The Owners – Strata Plan No 4350 (Defendant)
Representation:
Counsel:
Mr R Newlinds SC / Ms M Hall (Plaintiffs)
Mr M Isaac (Defendant)
Solicitors:
Deutsch Miller (Plaintiffs)
Kerin Benson Lawyers (Defendant)

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: [2022] NSWSC 1386
Decision Date: 14 October 2022

CaseChat Overview and Summary

In Kaye v The Owners - Strata Plan No 4350, the dispute involved an application for two by-laws by a lot owner to gain exclusive use and enjoyment of common property. The application was refused by the owners committee, leading to an appeal to the NSW Civil and Administrative Tribunal (NCAT). The NCAT Appeal Panel dismissed the appeal, and the lot owner appealed to the Court of Appeal, which allowed the appeal and remitted the matter back to the NCAT for reconsideration.

The primary legal issue was whether the refusal of the first proposal was unreasonable under section 149(1) of the Strata Schemes Management Act 2015 (NSW). Additionally, the court examined whether section 149(2) of the Act required the Tribunal to weigh the proponents’ rights and expectations against the interests of other lot owners. Another issue was whether the NCAT Appeal Panel erred in finding that special circumstances existed to award costs against the lot owner.

The Court of Appeal held that the Tribunal was not required to weigh the interests of the proponents and other lot owners in determining whether the refusal was unreasonable. The court found that the Tribunal was entitled to have regard to the other lot owners’ interests and rely on their own experience and beliefs. The Court of Appeal also found that section 149(2) was addressed to whether to order the making of a by-law and did not require the Tribunal to weigh the proponents’ rights and expectations against the interests of other lot owners. Regarding costs, the Court of Appeal held that the fact that the lot owner was legally represented, the unsuccessful appeal, and the complexity of the case were permissible considerations for the Tribunal to award costs. However, the Court of Appeal found that the Tribunal had erred in finding that special circumstances existed, as there were no mandatory considerations under section 35 of the Civil and Administrative Tribunal Act 2013 (NSW) that required the Tribunal to award costs.

The Court of Appeal remitted the matter back to the NCAT for reconsideration of the costs award, without making any orders as to the costs to be awarded. The NCAT was directed to consider the permissible considerations identified by the Court of Appeal and to exercise its discretion under section 60 of the Civil and Administrative Tribunal Act 2013 (NSW) and rules 38 and 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) in making its decision.

Orders