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McDonnell v The Owners – Strata Plan No 64191

McDonnell v The Owners – Strata Plan No 64191

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Case Copied 30 November 2022 76 min read

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: McDonnell v The Owners – Strata Plan No 64191 [2022] NSWSC 1631
Hearing dates: 20 May 2022
Date of orders: 30 November 2022
Decision date: 30 November 2022
Jurisdiction: Common Law
Before: N Adams J
Decision:
(1) The application to extend time to bring this appeal is refused.
(2) The summons is dismissed.
(3) The plaintiffs are to pay the defendant’s costs.

Catchwords:
APPEAL – NCAT – Extension of time sought to appeal decision of NCAT – delay of over two years – appeal on question of law – leave required – plaintiffs accepted in NCAT that s 132 Strata Schemes Development Act 2015 (NSW) provided power to make orders sought – opposite position now taken for the first time – power of NCAT to make orders under s 132 Strata Schemes Development Act 2015 (NSW) – "damage" to common property under s 132 – power of NCAT to make orders conditional on approval granted under the Environmental Planning and Assessment Act 1979 – special resolution passed to permit construction/alterations on common property – concurrent proceedings in Equity Division of Supreme Court – extension of time refused

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), ss 80, 83, 84, Sch 4 cl 12
Environmental Planning and Assessment Act 1979 (NSW), cll 1.4, 1.5, 4.2, Div 4.3
Strata Scheme Amendment Act 2004 (NSW)
Strata Schemes Development Act 2015 (NSW), s 4
Strata Schemes Management Act 1996 (NSW), ss 62, 65A
Strata Schemes Management Act 2015 (NSW), ss 4, 106, 108, 109, 132, 232
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), r 50.3

Cases Cited:
Achurch v R (2014) 306 ALR 566
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Burrell v R (2008) 238 CLR 218; 248 ALR 428; [2008] HCA 34
Capcelea v The Owners – Strata Plan No 48887 [2019] NSWCATCD 27
Coulton v Holcombe (1986) 162 CLR 1
D’Orta-Ekenaike v Victoria Legal Aid and Another (2005) 214 ALR 92
Darnell v Stonehealth Pty Ltd (No 4) [2021] FCA 823
Huang v The Owners Strata Plan 7632 t/as The Owners Strata Plan 7632 [2022] NSWSC 194
Katter v Melhem (2015) 90 NSWLR 164; 325 ALR 351; [2015] NSWCA 213
McDonnell v The Owners Strata Plan No 64191 [2019] NSWCATAP 172
McDonnell v The Owners Strata Plan No 64191 (No. 2) [2020] NSWCATAP 16
Minister for Immigration and Ethnics Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v SGLB [2004] HCA 32
Owners Strata Plan No 57164 v Yau [2017] NSWCA 341
Quach v New South Wales Health Care Complaints Commission (No 4) [2016] NSWCA 285
Rothwell Boys Pty Limited v Coffs Harbour City Council [2012] NSWLEC 19
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206
Stolfa v Hempton [2010] NSWCA 218
Stolfa v Owners…

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 1631
Decision Date: 30 November 2022

CaseChat Overview and Summary

In the case of McDonnell v The Owners – Strata Plan No 64191, the dispute involved the plaintiffs, McDonnell, who sought to appeal a decision made by the New South Wales Civil and Administrative Tribunal (NCAT) concerning the construction of a carport on common property. The defendants were the owners of the strata plan, who opposed the appeal due to a significant delay on the part of the plaintiffs. The matter was heard in the Supreme Court of New South Wales.

The central legal issues the court had to address included whether the NCAT had the authority to make the orders sought under section 132 of the Strata Schemes Development Act 2015 (NSW), and whether the NCAT could make such orders conditional on approval under the Environmental Planning and Assessment Act 1979. Additionally, the court considered whether the special resolution passed by the defendants to permit construction or alterations on the common property constituted "damage" under section 132. The defendants argued that the plaintiffs had accepted in NCAT that the statutory power existed, but now took the opposite position for the first time on appeal.

The court held that the NCAT had the power to make the orders under section 132 of the Strata Schemes Development Act 2015 (NSW). However, the court also determined that the plaintiffs' delay in seeking leave to appeal was significant and amounted to an unreasonable delay. Consequently, the plaintiffs' application for an extension of time to appeal was dismissed. The court emphasised the importance of timely legal action and the consequences of undue delay in pursuing appeals.

The court further found that the special resolution passed by the defendants did not constitute "damage" to the common property, as per the definition in section 132. The court also noted that the orders made by the NCAT could be conditional on the approval granted under the Environmental Planning and Assessment Act 1979. However, due to the unreasonable delay in seeking leave to appeal, the plaintiffs' application was ultimately refused.

Orders