Lai v Community Association No DP 270214 - [2018] NSWDC 222

District Court

New South Wales

Medium Neutral Citation: Lai v Community Association No DP 270214 [2018] NSWDC 222
Hearing dates: 31 July 2018
Date of orders: 17 August 2018
Decision date: 17 August 2018
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
(1) The time for the filing of the Summons is extended up to the date the Summons was filed.
(2) The orders of Senior Member Paull are affirmed. The appeal is dismissed;
(3) The plaintiffs are to pay the costs of the defendant of the appeal as agreed or assessed;
(4) The parties have liberty to apply within 28 days to vary Order 3 above.

Catchwords: Appeal – appeal from the New South Wales Civil and Administrative Tribunal in relation to the imposition of a civil penalty – whether errors of law established – whether failure to give adequate reasons by the Tribunal Member
Legislation Cited: Community Land Management Act 1989 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Uniform Civil Procedure Rules
Cases Cited: Chahal Group Pty Ltd v 7-Eleven Stores Pty Ltd [2018] NSWCA 58
House v The King (1936) 55 CLR 499
John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69
Jones v Dunkel (1959) 101 CLR 298
Lukac v The Royal Australian and New Zealand College of Obstetricians and Gynaecologists [2018] NSWSC 436
Madden v The Owners-Strata Plan No 64970 [2013] NSWSC 469
Matterson v Sunrise Pools Australia Pty Ltd [2017] NSWCATAP 211
Newell v De Costi Seafoods (Franchises) Pty Ltd [2018] NSWCA 49
Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
The Owners-Strata Plan No 82306 v Anderson [2017] NSWCATCD 85
Tomko v Pilasty (No 2) [2007] NSWCA 369
Tudor Capital Australia Pty Ltd v Christensen [2017] NSWCA 260
Category: Principal judgment
Parties: Po Wah Irene Lai (First Plaintiff)
Chi Leung Au-Leung (Second Plaintiff)
Community Association DP No 270214 (Defendant)
Representation:
Counsel:
D O’Connor (Plaintiffs)
D Weinberger (Defendant)
Solicitors:
Accuro Legal (Brisbane) (Plaintiffs)
Bannermans Lawyers (Defendant)

File Number(s): 2018/00124448

Judgment

This is an appeal by the plaintiffs (appellants) in relation to a decision by Ms C Paull, Senior Member of the New South Wales Civil and Administrative Tribunal (“NCAT”) dated 13 February 2018, imposing a civil penalty on the plaintiffs of $3,000 pursuant to s 97B of the Community Land Management Act 1989 (NSW) (“the CLM Act”) for breach of orders of an Adjudicator made on 1 December 2015. The plaintiffs claim that Senior Member Paull made a number of errors in her reasons for decision dated 13 February 2018 which constitute errors of law and which require the orders made by Senior Member Paull to be set aside. The defendant (respondent) Community Association denies that any errors of law were made and further submits that if any error of law has occurred, that the court should substitute its own decision in relation to the penalty, if any, which should be imposed on the plaintiffs.

The grounds of…

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: [2018] NSWDC 222
Decision Date: 17 August 2018

CaseChat Overview and Summary

The appeal before the court involved Lai as the appellant against the Community Association No DP 270214, the respondent. The dispute arose from a decision made by the New South Wales Civil and Administrative Tribunal (NCAT) concerning the imposition of a civil penalty. Lai contested the penalty's validity and sought to overturn the Tribunal's decision, arguing that there were errors in the legal process and a failure to provide adequate reasons for the penalty imposed.

The central legal issues the court needed to address were whether any errors of law were present in the Tribunal's decision and if the Tribunal Member failed to give sufficient reasons for the penalty. Lai argued that the Tribunal did not correctly apply the relevant laws, and the reasons provided were inadequate to justify the penalty. The court had to examine the reasoning and the application of law by the Tribunal to determine if the appeal had merit.

In its decision, the court found no merit in Lai's arguments. It affirmed that the Tribunal's decision was legally sound and that the reasons provided were adequate. The court concluded that the Tribunal had correctly applied the law and that there was no error warranting the overturning of the penalty. As a result, the appeal was dismissed, and the original orders of the Tribunal were upheld. The court also ordered Lai to pay the appeal costs to the respondent.

Orders

Orders of the court

(1) The time for the filing of the Summons is extended up to the date the Summons was filed.

(2) The orders of Senior Member Paull are affirmed. The appeal is dismissed;

(3) The plaintiffs are to pay the costs of the defendant of the appeal as agreed or assessed;

(4) The parties have liberty to apply within 28 days to vary Order 3 above.

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:	Lai v Community Association No DP 270214 [2018] NSWDC 222
Hearing dates:	31 July 2018
Date of orders:	17 August 2018
Decision date:	17 August 2018
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) The time for the filing of the Summons is extended up to the date the Summons was filed. (2) The orders of Senior Member Paull are affirmed. The appeal is dismissed; (3) The plaintiffs are to pay the costs of the defendant of the appeal as agreed or assessed; (4) The parties have liberty to apply within 28 days to vary Order 3 above.
Catchwords:	Appeal – appeal from the New South Wales Civil and Administrative Tribunal in relation to the imposition of a civil penalty – whether errors of law established – whether failure to give adequate reasons by the Tribunal Member
Legislation Cited:	Community Land Management Act 1989 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Uniform Civil Procedure Rules
Cases Cited:	Chahal Group Pty Ltd v 7-Eleven Stores Pty Ltd [2018] NSWCA 58 House v The King (1936) 55 CLR 499 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Jones v Dunkel (1959) 101 CLR 298 Lukac v The Royal Australian and New Zealand College of Obstetricians and Gynaecologists [2018] NSWSC 436 Madden v The Owners-Strata Plan No 64970 [2013] NSWSC 469 Matterson v Sunrise Pools Australia Pty Ltd [2017] NSWCATAP 211 Newell v De Costi Seafoods (Franchises) Pty Ltd [2018] NSWCA 49 Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 The Owners-Strata Plan No 82306 v Anderson [2017] NSWCATCD 85 Tomko v Pilasty (No 2) [2007] NSWCA 369 Tudor Capital Australia Pty Ltd v Christensen [2017] NSWCA 260
Category:	Principal judgment
Parties:	Po Wah Irene Lai (First Plaintiff) Chi Leung Au-Leung (Second Plaintiff) Community Association DP No 270214 (Defendant)
Representation:	Counsel: D O’Connor (Plaintiffs) D Weinberger (Defendant) Solicitors: Accuro Legal (Brisbane) (Plaintiffs) Bannermans Lawyers (Defendant)
File Number(s):	2018/00124448