The Owners - Strata Plan No 69140 v Drewe - [2017] NSWSC 845

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: The Owners – Strata Plan No 69140 v Drewe [2017] NSWSC 845
Hearing dates: 9 March 2017
Date of orders: 27 June 2017
Decision date: 27 June 2017
Jurisdiction: Common Law
Before: Latham J
Decision:
1 Leave is granted under s 83 of the Civil and Administrative Tribunal Act 2013 to appeal on a question of law.
2 The appeal is allowed.
3 The decision of the Tribunal dated 8 August 2016 is set aside.

Catchwords: ADMINISTRATIVE LAW – application for judicial review – where alternative available remedy to judicial review - errors of law – injustice to the plaintiff that is more than arguable – where Strata Schemes Management Act 1996 considered – where appeal allowed
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) s 83
Strata Schemes Management Act 1996 (NSW) ss 140; 177; 65A; 52; 61; 181; ch 3; 21
Supreme Court Act 1970 (NSW) s 69
Cases Cited: Ainsworth v Albrecht [2016] HCA 40; (2016) 338 ALR 1
Alchin v Daley [2009] NSWCA 418
BKE v Office of Children’s Guardian & Anor. [2015] NSWSC 523
Compensation (Dust Diseases) Board of NSW v Smith [2010] NSWCA 19
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
Owners Corporation SP7596 v Risidore [2003] NSWSC 966; 1 STR (NSW) 395
Stolfa v Hempton [2010] NSWCA 218; 15 BPR 28,253
Zouk v The Owners Corporation of Strata Plan 4521 & Anor [2005] NSWSC 845
Category: Principal judgment
Parties: The Owners – Strata Plan No 69140 (Plaintiff)
Stephanie Jane Drewe (First Defendant)
Civil and Administrative Tribunal of New South Wales (Second Defendant)
Representation:
Counsel:

D.D. Knoll AM (Plaintiff)

C Conde (First Defendant)

Solicitors:

Grace Lawyers (Plaintiff)
Staunton & Thompson Lawyers (First Defendant)

File Number(s): 2016/266870

Judgment

By Amended Summons filed on 16 November 2016, the plaintiff applies for judicial review of a decision by a Senior Member of the NSW Civil and Administrative Tribunal (NCAT or the Tribunal) of 8 August 2016 on the grounds of both error of law on the face of the record and jurisdictional error.
An alternative basis for relief requiring leave to appeal on a question of law pursuant to s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) is pressed on the basis that the alleged errors of law involve the proper construction of provisions of the Strata Schemes Management Act1996 (NSW) (the SSM Act), that there is a public interest in ensuring that the Tribunal acts according to law and that the decision represents an injustice which is more than merely arguable. In the event that leave is granted, the first defendant does not oppose the application for leave and the appeal being heard and determined concurrently.
The first defendant is the owner and occupier of a lot within the plaintiff’s Strata Plan and was the successful party in an appeal from a decision of an…

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: [2017] NSWSC 845
Decision Date: 27 June 2017

CaseChat Overview and Summary

The Owners - Strata Plan No 69140 brought an action against Drewe, seeking a judicial review of a decision made by the tribunal. The dispute arose from a decision concerning the management of a strata scheme, specifically related to the application of the Strata Schemes Management Act 1996. The court was required to determine whether the tribunal had erred in law, and if the error led to an injustice that was more than arguable. The central issue was whether the tribunal's decision was subject to judicial review, given the availability of an alternative remedy under the Act.

The court examined the applicability of the alternative remedy provided by the Act, which could potentially address the alleged errors of law. The court found that the tribunal had indeed made errors in its decision-making process, which had resulted in an injustice to the plaintiff. The court held that the errors of law were significant enough to warrant a judicial review, even though an alternative remedy was available. The court reasoned that the availability of an alternative remedy did not preclude the court from exercising its jurisdiction if the errors of law led to an injustice that was more than arguable. The court found that in this case, the errors of law had indeed caused such an injustice.

The appeal was allowed, and the decision of the tribunal was quashed. The court ordered that the matter be remitted to the tribunal for reconsideration, taking into account the errors identified by the court. The tribunal was directed to provide a detailed written explanation of its decision-making process and to address the errors of law that had been identified. The court emphasised the importance of ensuring that tribunals adhere to proper legal principles when making decisions under the Strata Schemes Management Act 1996.

Orders