McDonnell v The Owners – Strata Plan No 64191

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.