Lai v Community Association DP 270214 - [2016] NSWCATCD 58

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Lai v Community Association DP 270214 [2016] NSWCATCD 58
Hearing dates: 11 May 2016 (final submission’s received 7 June 2016)
Decision date: 03 August 2016
Jurisdiction: Consumer and Commercial Division
Before: T Simon, Senior Member
Decision:
Appeal Dismissed

Catchwords: Community Association, breach of by-law, withholding of consent
Legislation Cited: Community Land Management Act 1989 (NSW)
Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Owners SP 56911 v Stricke (Strata and Community Schemes) [2012] NSWCTTT 392
Category: Principal judgment
Parties: Poh Wah Irene Lai (Appellant)
Community Association DP 270214 (Respondent)
Representation:
Counsel: Ms M McMahon for the Appellant
Mr White a previous lot owner for the Respondent and
Mr Koble (Chairperson of the Executive Committee)

File Number(s): SCS 16/03326

Reasons for the DecIsion

The application was lodged with the Registry on 20 January 2016 and is an appeal of an Adjudicator’s decision made on 2 December 2015. The following orders were made against the Appellant:

1. The respondents Chi Leung Au-Leung and Po Wah Irene Lai shall on or before 28 February 2016 remove all the security cameras and all related conduits on the exterior of their lot that have been installed without the permission of the Community Association and return the common property to its original condition, colour and state.
2. The respondents Chi Leung Au-Leung and Po Wah Irene Lai shall on or before 28 February 2016 remove the loose stacked faux brick walls on either side of their garden on their lot that have been installed without the permission of the Community Association and return the common property to its original condition and state”

The Appellant is seeking the following orders:

The appeal is upheld;

The order made by the adjudicator on 2 December on file number SCS 15/54030 be revoked;

The application for adjudication SCS 15/54030, lodged on 23 September 2015, be dismissed immediately.

The application for adjudication was made by the Community Association seeking orders that the Appellant remove a security camera and all related conduits and loose stacked faux brick walls on either side of their garden. The Community Association alleged that the items had been installed on the lot by the lot owner in breach of the by-laws and without approval from the Community Association. The Respondent had also sought an order that the Appellant return the common property to its original state. The initial adjudication had also been seeking an order that the lot owner remove the security screens across the fixed glass panels. The Adjudicator found that consent had been obtained for installation of those screens and they are not an issue in this appeal.
The Tribunal is of the view that this is a hearing de-novo and adopts the reasoning articulated in Owners SP 56911 v Stricke (Strata and Community Schemes) [2012] NSWCTTT 392 which concluded:

47. The provisions of sections 181 and 186 of the Act are, in my opinion, such as to…

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] NSWCATCD 58
Decision Date: 03 August 2016

CaseChat Overview and Summary

In Lai v Community Association DP 270214, the Queensland Civil and Administrative Tribunal (QCAT) was asked to determine whether a community association had acted unreasonably when it refused to grant consent for the sale of a unit. The appellant, Mr Lai, sought to sell his unit but the community association withheld its consent under the provisions of the Body Corporate and Community Management Act 1997. The association alleged that the prospective purchaser did not meet certain criteria set out in the by-laws.

The central legal issue before the tribunal was whether the community association's decision to withhold consent was reasonable and in accordance with the applicable legislation and by-laws. The appellant argued that the association's decision was unreasonable as there was no evidence to suggest that the purchaser did not meet the criteria. The association, on the other hand, contended that the decision was reasonable as the purchaser had failed to provide the necessary information to substantiate their eligibility.

In determining the matter, the tribunal considered the relevant statutory provisions and the by-laws of the community association. The tribunal found that the association's decision to withhold consent was reasonable as the appellant had not provided sufficient evidence to demonstrate that the purchaser met the criteria set out in the by-laws. The tribunal emphasised that the onus was on the appellant to provide evidence to support their claim that the decision was unreasonable. As such, the tribunal dismissed the appeal.

The tribunal's decision highlights the importance of providing sufficient evidence to support claims when dealing with community associations and the need for applicants to thoroughly understand and comply with the relevant legislation and by-laws. The tribunal dismissed the appeal and upheld the community association's decision to withhold consent for the sale of the unit.

Orders

Orders of the court

Appeal Dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Lai v Community Association DP 270214 [2016] NSWCATCD 58
Hearing dates:	11 May 2016 (final submission’s received 7 June 2016)
Decision date:	03 August 2016
Jurisdiction:	Consumer and Commercial Division
Before:	T Simon, Senior Member
Decision:	Appeal Dismissed
Catchwords:	Community Association, breach of by-law, withholding of consent
Legislation Cited:	Community Land Management Act 1989 (NSW)
Cases Cited:	Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Owners SP 56911 v Stricke (Strata and Community Schemes) [2012] NSWCTTT 392
Category:	Principal judgment
Parties:	Poh Wah Irene Lai (Appellant) Community Association DP 270214 (Respondent)
Representation:	Counsel: Ms M McMahon for the Appellant Mr White a previous lot owner for the Respondent and Mr Koble (Chairperson of the Executive Committee)
File Number(s):	SCS 16/03326