R T Electrical Pty Ltd v Body Corporate for Carefree CTS 14400

The appellant, R T Electrical Pty Ltd, sought to appeal the decision of an adjudicator in relation to the removal of structures from common property and relief from a failure to comply with bylaws. The case involved a small scheme in Mermaid Beach consisting of three lots in a two-story building. The appellant, who owned two units on the first floor, sought the removal of various structures within the common property, including a plasterboard wall, a shower and toilet, a fence, and a cupboard. The respondents were the body corporate and the owners of the third unit on the ground floor. The adjudicator granted some of the relief sought by the appellant but refused others, leading to the appellant's appeal.

The legal issues before the court were whether the appeal was limited to questions of law and if the appellant had demonstrated any errors of law in the adjudicator's decision. The court held that the appeal was strictly limited to questions of law and that the findings of fact and exercises of discretion by the adjudicator were not subject to review unless there was no legal basis for the decision. The court found that the appellant had not identified any errors of law in the adjudicator's decision and had failed to demonstrate that the adjudicator's findings were not legally tenable. The adjudicator's decision to require the respondents to allow other owners and occupiers free access to the fenced area unless exclusive use was granted by a by-law was considered a sensible and practical resolution of the dispute.

In conclusion, the court dismissed the appeal, finding no error of law in the adjudicator's decision. The court invited submissions regarding the allocation of costs for the appeal. The question of whether the current owners of lot 1 were obliged to remove the courtyard fence at their own cost if it was originally constructed without permission was not necessary to decide in this appeal and was left uninvestigated by the court.

ORDERS:
Appeal dismissed. Adjourn question of costs.