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

Supreme Court New South Wales

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 [2019] NSWSC 425 The Owners – Strata Plan No. 37762 v Pham [2006] NSWSC 1287 Texts Cited: M Leeming, Authority to Decide – The Law of Jurisdiction in Australia (2nd ed, 2020, Federation Press) Category: Principal judgment Parties: The Owners – Strata Plan No 70871 (Plaintiff) Michael Victor Turek (First Defendant) Louise Turek (Second Defendant) Representation: Counsel: V F Kerr SC / N Apkarian (Plaintiff) R Notley (Defendants)