The Owners - Strata Plan No 37762 v Pham - [2006] NSWSC 1287

CITATION: THE OWNERS - STRATA PLAN NO. 37762 v DINH PHUONG DUNG PHAM and anor [2006] NSWSC 1287

HEARING DATE(S): 20/02/2006, 21/02/2006

JUDGMENT DATE :
29 November 2006

JURISDICTION: Supreme Court

JUDGMENT OF: Rothman J

DECISION: (i) To the extent necessary, leave to appeal is granted; (ii) Appeal against the orders made by the Consumer, Trader and Tenancy Tribunal (“the Tribunal”) on 18 October 2005 in application SCS05-10475 is granted; (iii) The orders made by the Tribunal on 18 October 2005 in the matter, pursuant to s138 of the Strata Schemes Management Act 1996 (“the Act”), are quashed.

CATCHWORDS: CIVIL LAW - Strata Schemes Management Act - Jurisdiction of Consumer Trader & Tenancy Tribunal - planning and development - Council grant of development approval void ab initio for want of owners’ consent - exclusive use by-law from owners’ corporation to be gained before lodging development application with Consent Authority (Council) - construction of Environmental Protection and Assessment Act 2001 - retrospective consent for work already completed - orders of Consumer, Trader and Tenancy Tribunal quashed.

LEGISLATION CITED: Australian Securities and Investments Commission Act 2001
Consumer, Trader & Tenancy Tribunal Act 2001
Corporations Act 2001
Crimes (Local Courts Appeal and Review) Act 2001Environmental Protection and Assessment Act 1979
(NSW)Environmental Protection and Assessment Regulations 2000
Strata Schemes Management Act 1996
Suitors’ Fund Act 1951

CASES CITED: Halpin v SCC (2000) 110 LGERA 464
Harris Farm Markets Pty Ltd v Ashfield Fresh Pty Ltd and Anor [2002] NSWLEC 106
Hutchison v RTA [2000] NSWCA 332
Owners Lot and Strata Plan 37762 v Pham and Others [2005] NSWLEC 500
Owners Strata Plan No. 50411 & Ors v Cameron North Sydney Investments [2003] NSWCA 5
R v Kirby; Ex parte Boilermakers’ (1956) 94 CLR 254
R v Moore; ex parte Graham (1977) 138 CLR 164

PARTIES: P: THE OWNERS - STRATA PLAN NO. 37762
D1: Ms Dinh Phuong Dung PHAM
D2: CONSUMER, TRADER & TENANCY TRIBUNAL

FILE NUMBER(S): SC 153007/2005

COUNSEL: P: Mr Young
D1: Mr C D Norton

SOLICITORS: P: Andreones Pty Ltd Lawyers
D1:Woolf Associates, Solicitors (no longer appearing)

LOWER COURT JURISDICTION: Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT FILE NUMBER(S): SCS05/19616; 05/19610

LOWER COURT JUDICIAL OFFICER : Member Moore

LOWER COURT DATE OF DECISION: 18 October 2005

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ROTHMAN J

29 November 2006
153007/2005
THE OWNERS - STRATA PLAN NO. 37762
v
DINH PHUONG DUNG PHAM and Anor

JUDGMENT

1 HIS HONOUR: The plaintiff appeals the orders made by the Consumer, Trader & Tenancy Tribunal (“the Tribunal”), and seeks ancillary orders and declarations, in relation to a matter arising under the Strata Schemes Management Act 1996 (the Act). The Tribunal ordered that the plaintiff consent to the application of the first defendant, Dinh Phuong Dung Pham (hereinafter DPD Pham or the defendant) for development consent, to Liverpool City Council.

2 The second defendant, being the Tribunal, has filed a submitting appearance and submits to any order of the Court save…

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: [2006] NSWSC 1287
Decision Date: 29 November 2006

CaseChat Overview and Summary

The Owners - Strata Plan No 37762 v Pham was a case heard by the Supreme Court of New South Wales, where the Owners of a strata scheme sought to challenge a decision made by the Consumer, Trader and Tenancy Tribunal (CTTT). The dispute centred around the validity of a development approval granted by a local council and the construction of a balcony by one of the owners, which was deemed to have been carried out without the necessary consent of the Owners' Corporation. The legality of the CTTT's jurisdiction in hearing the matter was also in question.

The primary legal issues that the court was required to decide were whether the development approval granted by the Council was void due to the lack of the Owners' Corporation's consent, and if so, whether retrospective consent could be obtained from the Owners' Corporation for the work already completed. Additionally, the court had to determine if the CTTT had the jurisdiction to hear the matter or if the dispute should have been resolved by another body, such as the NSW Civil and Administrative Tribunal (NCAT).

The Supreme Court held that the development approval granted by the Council was indeed void ab initio as it did not have the consent of the Owners' Corporation, as required by the Strata Schemes Management Act. The court further ruled that the Owners' Corporation could not provide retrospective consent for the work that had already been completed, as this would contravene the provisions of the Environmental Protection and Assessment Act 2001. Finally, the court determined that the CTTT did not have jurisdiction to hear the matter, as the dispute should have been brought before the NCAT. Consequently, the orders made by the CTTT were quashed.

In light of the above findings, the court set aside the orders made by the CTTT and directed that the matter be remitted to the NCAT for further determination. The court emphasised the importance of Owners' Corporations obtaining the necessary consent before lodging a development application with the Consent Authority (Council) to avoid similar disputes in the future.

Orders