Kimber v The Owners Strata Plan No. 48216 - [2016] NSWSC 1397

Supreme Court

New South Wales

Medium Neutral Citation: Kimber v The Owners Strata Plan No. 48216 [2016] NSWSC 1397
Hearing dates: 29 September 2016
Date of orders: 30 September 2016
Decision date: 30 September 2016
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Dismiss the summons.

(2) Refuse leave to the plaintiff to appeal against the decision of the New South Wales Civil and Administrative Tribunal, constituted by Senior Member Boyce, made on 25 May 2016 that she pay the defendant’s costs for the period 11 March 2016 until 13 April 2016 as agreed or assessed on the ordinary basis.
(3) Order the plaintiff to pay the defendant’s costs of the proceedings.
Catchwords: COSTS – appeal – application for leave to appeal decision of NSW Civil and Administrative Tribunal – no error of law identified in decision of Tribunal – application dismissed
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 50, 55. 60, 83
Uniform Civil Procedure Rules (2005) NSW, r 51.12
Cases Cited: Kimber v The Owners Strata Plan No. 48216 [2016] FCA 1090
Category: Principal judgment
Parties: Janelle Kimber
The Owners Strata Plan No. 48216 (Defendant)
Representation:
Counsel:
Plaintiff in person
S Heimanis (solicitor) (Defendant)
Solicitors:
Plaintiff in person
Grace Lawyers (Defendant)

File Number(s): 2016/190018
Decision under appeal

Court or tribunal:

New South Wales Civil and Administrative Tribunal

Jurisdiction:

Consumer and Commercial Division

Citation:

2016 NSWCAT

Date of Decision:

25 May 2016

Before:

P Boyce, Senior Member

File Number(s):

SCS 15/58745

Judgment

Introduction

By summons filed on 22 June 2016 Janelle Kimber, the plaintiff, seeks the following orders:

“For Leave to Appeal to be granted with the appropriate extension of time considered.
to allow the plaintiff to appeal the whole of the decision made on 25 May 2016 by Senior Tribunal Member Boyce of NSW Civil & Administrative Tribunal.
for a date to be set for after 27 July 2016 to accommodate the existing interlocutory Application Directions Hearing set down for 27 July 2016 in the Federal Court where the plaintiff will be raising this NCAT ‘related matter’ with ‘core matters’ now proceeding in that court, seeking to transfer this ‘costs appeal’’ into the Federal Court according to [s 32 and 22 of the Federal Court of Australia Act 1976 (Cth)]
For costs and damages to be awarded to the plaintiff.”

The order in respect of which leave to appeal is sought was made on 25 May 2016. The summons was filed on 22 June 2016. Under Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 51.12(1)(a), the time within which the summons is to be filed is 28 days from the material date. Accordingly, the defendant accepted that the summons was filed within time and that no extension was necessary.
The Owners Corporation SP No. 48216, the defendant, opposed the relief claimed in the summons. It opposed the second prayer for relief on two bases: first, that no question of law arose; and secondly, that no error in the decision had been shown. It opposed the…

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: [2016] NSWSC 1397
Decision Date: 30 September 2016

CaseChat Overview and Summary

The case of Kimber v The Owners Strata Plan No. 48216 involved the applicant, Ms Kimber, appealing against a decision of the New South Wales Civil and Administrative Tribunal. The dispute centred around costs incurred in relation to strata title matters, specifically the refusal of the Tribunal to grant leave to appeal a decision pertaining to these costs. The Tribunal had found that the application for leave to appeal did not identify any error of law in its previous decision, leading to the dismissal of the application.

The primary legal issue before the court was whether the applicant had demonstrated that the Tribunal had erred in law when it refused to grant leave to appeal. This involved an examination of the Tribunal's decision-making process and its application of relevant legal principles. The court had to determine if the Tribunal had correctly applied the law and if there was any basis for finding that the Tribunal's decision was flawed.

In considering the application, the court noted that the Tribunal had meticulously reviewed the evidence and arguments presented. It found that the Tribunal's decision was well-reasoned and consistent with established legal principles. The court concluded that there was no evident error of law in the Tribunal's decision to refuse leave to appeal. Therefore, the application for leave to appeal was dismissed.

The final orders of the court were straightforward, affirming the decision of the Tribunal. The court upheld the dismissal of the application for leave to appeal, thereby finalising the dispute concerning the costs in question.

Orders