Nowacki v S & Q Assets Pty Limited

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Nowacki v S & Q Assets Pty Limited [2022] NSWCATEN 1

Hearing dates:

On the papers

Date of orders:

22 July 2022

Decision date:

22 July 2022

Jurisdiction:

Enforcement

Before:

I R Coleman SC ADCJ, Principal Member

Decision:

(1) Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) the Tribunal is satisfied that it is appropriate to dispense with a hearing of the referral application.

(2) Pursuant to s 73(5) of the Civil and Administrative Tribunal Act 2013 (NSW) the Application filed 27 October 2021 for contempt be referred to the Supreme Court of New South Wales for determination.

(3)    Costs are reserved.

Catchwords:

PRACTICE AND PROCEDURE- contempt - where respondent in breach of Tribunal orders - whether evidence capable of establishing contempt of Tribunal - whether contempt application should be referred to Supreme Court

Legislation Cited:

Local Government Act 1993 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Residential (Land Lease) Communities Act 2013 (NSW)

Cases Cited:

DVI v ZTT [2021] NSWCATEN 4

Mohareb v Palmer 27 NSWCA 281

Burns v Corbett [2015] NSWCATAD 188

Australasian Meat Industry Employees Union v Mudginberri Station Pty Limited [1986] HCA 46; (1986) 161 CLR 98

Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525

National Australia Bank Limited v Juric [2001] VSC 375

Category:

Principal judgment

Parties:

Dianne Nowacki (Appellant)
S & Q Assett Pty Ltd (Respondent)

Representation:

Nil

File Number(s):

PC 21/44309

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. On 27 October 2021 Diane Nowacki and others (Applicants) filed an application seeking orders against S & Q Assets Pty Limited (Respondent) that proceedings for contempt be taken against the Respondent for “wilfully and deliberately disobeying orders made by the Tribunal 27 March 2020 in RC20/02707 and varied by orders made on 4 June 2020 in RC20/18735 and on 16 October 2020 in RC20/29501” or that “these matters be referred to the Supreme Court of New South Wales for determination” (“referral application”).

2. The grounds for the application were pleaded in the following terms:

“On 27 March 2020 in proceedings RC20/02707, the Tribunal made orders directing the Respondent operator of a residential community to carry out work by 20 April 2020. Reasons were given. Order 1 comprised a work order with 5 items, in summary directed to a reasonable arrangement for mail receipt; to curing a danger caused by pipes lying on the ground of common property; to curing a danger caused by roots; to informing the Applicant the basis upon which her electricity was charged; and to informing the Applicant the basis upon which her water was charged. On 4 June 2020 in proceedings RC/18735, the Tribunal extended time for compliance and ordered that if the orders were not complied with by 26 June 2020, then by 31 July 2020, the Applicant owner could request the relisting so that further orders could be considered.”

3. At all material times the Applicants have…