Kaye v The Owners - Strata Plan No 4350

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.