Rinbac Pty Ltd v The Owners - Strata Plan No 64972 - [2010] NSWSC 656

Reported Decision:
77 NSWLR 601

New South Wales

Supreme Court

CITATION: Rinbac Pty Ltd v Owners Corporation Strata Plan 64972 [2010] NSWSC 656
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 8 June 2010

JURISDICTION: Equity Division

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 8 June 2010

DECISION: No jurisdiction. Orders made by the Registrar in proceedings 5301/2009 in this Court on 26 November 2009 be set aside.

CATCHWORDS: PROCEDURE – Supreme Court Procedure – New South Wales – Jurisdiction and generally – Jurisdiction – whether Supreme Court of New South Wales has jurisdiction to remove from the District Court, pursuant to Civil Procedure Act 2005, s 140, an appeal under (NSW) Strata Schemes Management Act 1996, s 200.

LEGISLATION CITED: (NSW) Civil Procedure Act 2005, s 3, s 140, s 149, s 149E
(NSW) Crimes (Appeal and Review) Act 2001, s 52, s 53, s 54, s 55
(NSW) Strata Schemes Management Act 1996, s 47, s 51, s 200
(NSW) Uniform Civil Procedure Rules 2005, r 36.15

CATEGORY: Principal judgment

PARTIES: Rinbac Pty Ltd (plaintiff)
Owners Corporation Strata Plan 64972 (defendant)

FILE NUMBER(S): SC 09/291362

COUNSEL: F Corsaro SC w M Izzo (plaintiff)
P Gray SC w P Koroknay (defendant)

SOLICITORS: HWL Ebsworth Lawyers (plaintiff)
David Le Page Solicitor (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Tuesday, 8 June 2010

2009/291362 Rinbac Pty Ltd v Owners Corporation Strata Plan 64972

JUDGMENT (ex tempore)

1 HIS HONOUR: On 1 April 2009, a member of the Consumer Trader and Tenancy Tribunal made an order dismissing an appeal brought by Rinbac Pty Limited against the Owners Corporation Strata Plan 64972 from orders made by a Strata Schemes Adjudicator on 23 September 2008 refusing to restrain the registration of an amendment to by-laws which Rinbac alleged involved the repeal of an exclusive use by-law without its consent, or alternatively, fraud on the minority. Rinbac's contentions failed both before the Strata Schemes Adjudicator and on appeal before the Consumer Trader and Tenancy Tribunal.

2 By (NSW) Strata Schemes Management Act 1996, s 200, an appeal lies to the District Court against an order of the Consumer Trader and Tenancy Tribunal. By subsection (2):

Crimes (Local Courts Appeal and Review) Act

2001

3 These provisions are not without their curiosity. Plainly, s 200 provides for an appeal to the District Court. In the (NSW) Crimes (Appeal and Review) Act 2001, as the former (NSW) Crimes (Local Courts Appeal and Review) Act 2001 is now entitled, it is Part 3 that deals with District Court appeals whereas Part 5 deals with appeals by right, or by…

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: [2010] NSWSC 656
Decision Date: 8 June 2010

CaseChat Overview and Summary

In the matter of Rinbac Pty Ltd v The Owners - Strata Plan No 64972, the Supreme Court of New South Wales was tasked with determining whether it had the jurisdiction to transfer an appeal from the District Court to itself, pursuant to section 140 of the Civil Procedure Act 2005. The appeal originated from a decision under section 200 of the Strata Schemes Management Act 1996, concerning disputes between a strata corporation and the owners of a strata plan.

The central legal issue before the court was whether it possessed the jurisdiction to transfer an appeal from the District Court to itself, specifically concerning the removal of an appeal under section 200 of the Strata Schemes Management Act 1996. The court had to examine the provisions of section 140 of the Civil Procedure Act 2005 and assess whether such a transfer was permissible in this context.

The court found that section 140 of the Civil Procedure Act 2005, which pertains to the transfer of appeals, does not include appeals under section 200 of the Strata Schemes Management Act 1996. Consequently, the Supreme Court of New South Wales did not have the jurisdiction to transfer such an appeal from the District Court to itself. This conclusion was based on a detailed interpretation of the statutory provisions and the specific nature of appeals under section 200 of the Strata Schemes Management Act 1996.

The Supreme Court of New South Wales dismissed the application to transfer the appeal from the District Court. The court's decision was grounded in the statutory interpretation of the Civil Procedure Act 2005 and the Strata Schemes Management Act 1996, affirming that the Supreme Court lacked the jurisdiction to undertake such a transfer.

Orders