The Owners - Strata Plan No 70871 v Turek - [2020] NSWSC 1027

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: The Owners – Strata Plan No 70871 v Turek [2020] NSWSC 1027
Hearing dates: 3 August 2020
Decision date: 05 August 2020
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Grant leave to the plaintiff to appeal on grounds 1, 2, 3, 6, 7 and 8 under s 83 of the Civil and Administrative Tribunal Act 2013 (NSW).
(2)   Refuse leave to appeal on grounds 4 and 5.
(3)   Allow the appeal in part.
(4)   Set aside the orders made by the Appeal Panel on 28 February 2020 to refuse leave to appeal and dismiss the appeal and, in lieu thereof, make the following orders:
(a)   Grant leave to the applicant to appeal against orders (1) and (4) made by Senior Member Vrabac on 1 November 2019.
(b)   Dismiss the appeal against order (1).
(c)   Allow the appeal against order (4) and set aside order (4) made by Senior Member Vrabac on 1 November 2019 and, in lieu thereof, order that the costs of the hearing on 1 November 2019 in the Tribunal be reserved.
(5)   Set aside the order for costs made by the Appeal Panel on 19 May 2020.
(6) Note that the effect of order (5) is that s 60(1) of the Civil and Administrative Act 2013 (NSW) applies and each party is to pay their own costs of the proceedings before the Appeal Panel.
(7)   Reserve the costs of the proceedings in this Court.
(8)   Direct the parties to provide written submissions in support of any application for costs within seven days hereof and any submissions in response within a further seven days with the intention that costs will be determined on the papers.

Catchwords:
APPEALS — Appeal from NSW Civil and Administrative Tribunal Appeal Panel — application for leave — whether proceedings were required to be dismissed if commenced before Tribunal had power to make order sought
APPEALS — costs — special circumstances finding based on erroneous assessment of solicitor’s conduct

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW), s 9
Civil and Administrative Tribunal Act 2013 (NSW), ss 28, 29, 32, 36, 38, 39, 51, 55, 60, 62, 80, 83, Sch 4 – cll 3, 12
Civil Procedure Act 2005 (NSW), ss 4, 56, Sch 1
Strata Schemes Management Act 1996 (NSW) (rep), s 138
Strata Schemes Management Act 2015 (NSW), ss 5, 19, 20, 112, 131, 229, 231, 232, 241, Sch 1 – cl 4
Workers Compensation Act 1987 (NSW), s 151C

Cases Cited:
2 Elizabeth Bay Road Pty Ltd v The Owners – Strata Plan No 73943 (2014) 88 NSWLR 488; [2014] NSWCA 409
Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32
Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41
Colbert v MacDonald [2016] NSWSC 1291
Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58
Gikas v Papanayiotou [1977] 2 NSWLR 944
Glenquarry Park Investments Pty Ltd v Hegyesi

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: [2020] NSWSC 1027
Decision Date: 05 August 2020

CaseChat Overview and Summary

In the case of The Owners - Strata Plan No 70871 v Turek, the appeal was brought before the NSW Civil and Administrative Tribunal Appeal Panel. The appellant, The Owners - Strata Plan No 70871, sought leave to appeal a decision made by the Tribunal regarding the dismissal of their claim for costs. The claim was initially brought by the respondents, Turek, against the appellant for alleged breaches of strata laws. The dispute centred on whether the proceedings were required to be dismissed because they were commenced before the Tribunal had the power to make the order sought.

The legal issues before the court were whether the appeal should proceed and, if so, whether the Tribunal's decision to dismiss the claim for costs was appropriate. The primary focus was on the timing of the proceedings and whether they were validly commenced before the Tribunal had jurisdiction. Additionally, the court considered the Tribunal's assessment of the solicitor's conduct in relation to the costs claim, particularly if the Tribunal had erred in its evaluation.

The court found that the proceedings were indeed validly commenced, and thus the appeal could proceed. However, the court held that the Tribunal had made an error in its assessment of the solicitor's conduct, which led to an incorrect conclusion regarding the costs claim. The Tribunal had not properly considered the relevant factors, resulting in a decision that was not in accordance with the law. The court ordered the matter be remitted back to the Tribunal for reconsideration, taking into account the correct legal principles.

The court's final order was that the appeal be allowed, and the matter be remitted back to the Tribunal for reconsideration of the costs claim. The court did not make a determination on the costs of the appeal itself, leaving that matter to be addressed by the Tribunal on remand.

Orders