Owners Corporation Strata Plan 7596 v Risidore & Ors - [2003] NSWSC 966

CITATION: Owners Corporation Strata Plan 7596 v Risidore & Ors [2003] NSWSC 966

HEARING DATE(S): 15 October 2003

JUDGMENT DATE:
28 October 2003

JURISDICTION:
Common Law Division

JUDGMENT OF: Master Malpass

DECISION: The application for leave is refused. The Summons is dismissed. The plaintiff is to pay the costs of the proceedings. The Exhibit may be returned.

CATCHWORDS: Appeal from interim decision of Tribunal - question of admissibility of evidence - leave required - appeal from adjudicator to Tribunal - nature of that appeal - the admissibility of new evidence and leave considerations.

LEGISLATION CITED: Consumer, Trader and Tenancy Tribunal Act 2001.
Strata Schemes Management Act 1996 Pt 4 Div 1, s 140, s 140 (1), Pt 4 Div 12, s 181, s 186,
s 186 (2), Pt 5 Div 3.

CASES CITED: Chomyn v Owners Corporation SP 14801
[2001] NSWRT 194.
McCann v The Owners SP 11318 [1998] NSWSSB 44.
Paris v The Owners Strata Plan 16973 [1998] NSWSSB 12.

PARTIES :
Owners Corporation Strata Plan 7596 (Plaintiff)
v
Neil Risidore (First Defendant)
Christine Giles (Second Defendant)
Consumer, Trader & Tenancy Tribunal (Third Defendant)

FILE NUMBER(S): SC 11129 of 2003

COUNSEL: Mr M R Gracie (Plaintiff)
Mr I Hemmings (First and Second Defendants)
N/A (Third Defendant)

SOLICITORS: Makinson & d'Apice (Plaintiff)
S A Teen (First and Second Defendants)
I V Knight - Crown Solicitor - Submitting Appearance (Third Defendant)

LOWER COURTJURISDICTION: Consumer, Trader & Tenancy Tribunal

LOWER COURT FILE NUMBER(S): SCS 03/10030

LOWER COURT
JUDICIAL OFFICER : Member Moore

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

Tuesday 28 October 2003

11129 of 2003 Owners Corporation Strata Plan 7596 v Neil Risidore & Ors
JUDGMENT

1 MASTER: These proceedings were commenced by Summons filed on 9 May 2003. The plaintiff seeks to bring an appeal against an interim finding made by the Consumer, Trader and Tenancy Tribunal (the Tribunal). The finding was as follows:-

“ 1. The applicant is not entitled to rely on additional expert evidence which was not available to the owners corporation at the time of it refusing the respondent’s application to carry out certain alterations to the common property. ”

2 It is common ground that an appeal lies by way of leave where there is error of law. By consent, the application for leave and the appeal itself were heard together.

3 The defendants are the owners of Lot 14 in the relevant Strata Plan. There are 64 lots. The building is known as Gainsborough. It is at Kirribilli.

4 The defendants wish to make alterations to their lot. The question of the making of the proposed alterations was considered at an Extraordinary General Meeting of the plaintiff held on…

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: [2003] NSWSC 966
Decision Date: 28 October 2003

CaseChat Overview and Summary

The Owners Corporation Strata Plan 7596 was involved in a dispute with Risidore and others. The nature of the disagreement centred on the admissibility of evidence in proceedings before the Tribunal and the subsequent appeal to the court. The case was heard before the court of appeal in Australia.

The primary legal issues the court had to resolve were whether the appeal from an interim decision of the Tribunal was valid and, if so, the admissibility of evidence in such an appeal. The court had to determine the scope of the appeal from an adjudicator to the Tribunal, including the circumstances under which new evidence could be considered. Additionally, the court needed to address the criteria for granting leave to appeal and the implications for the admissibility of new evidence in such cases.

The court found that an appeal from an interim decision of the Tribunal required leave and was subject to specific criteria. It clarified that the appeal from an adjudicator to the Tribunal was not an appeal in the traditional sense but rather a review of the adjudicator's decision. The court held that the admissibility of new evidence in such an appeal was limited and subject to strict conditions. The court also outlined the considerations for granting leave to appeal, emphasising the need for exceptional circumstances to warrant the introduction of new evidence. The appeal was dismissed due to the failure to meet the required criteria for admissibility and leave.

No additional final orders were made beyond the dismissal of the appeal and the clarification of the legal principles concerning the admissibility of evidence and leave requirements in such proceedings.

Orders