Gelder v The Owners – Strata Plan No 38308 [2020] NSWCATAP 227

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Gelder v The Owners – Strata Plan No 38308 [2020] NSWCATAP 227 Hearing dates: 1 October 2020 Date of orders: 5 November 2020 Decision date: 05 November 2020 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President S Goodman SC, Senior Member Decision: (1) The appeal is allowed. (2) Paragraphs (2) and (3) of the Orders made by the Tribunal on 8 July 2020 in file numbers SC 19/48418 and 20/06550 are set aside. (3) In lieu of paragraph (3) of the Orders made by the Tribunal on 8 July 2020, order that: The Owners – Strata Plan No. 38308 is to take all steps necessary to ensure that the by-law referred to in paragraph (1) of these orders is registered and effective. (4) If any party desires to make an application for costs of the appeal: (a) that party is to so inform the other party within 14 days of the date of these reasons; (b) the applicant for costs is to lodge with the Appeal Panel and serve on the respondent to the costs application any written submissions of no more than five pages on or before 14 days from the date of these reasons; (c) the respondent to any costs application is to lodge with the Appeal Panel and serve on the applicant for costs any written submissions of no more than five pages on or before 28 days from the date of these reasons; (d) any reply submissions limited to three pages are to be lodged with the Appeal Panel and served on the other party within 35 days of the date of these reasons; (e) the parties are to indicate in their submissions whether they consent to an order dispensing with an oral hearing of the costs application, and if they do not consent, submissions of no more than one page as to why an oral hearing should be conducted rather than the application being determined on the papers. Catchwords: LAND LAW – strata title – common property – common property rights by-law – whether unreasonable refusal to consent – errors of law Legislation Cited: Civil and Administrative Tribunal Act 2013 Strata Schemes Management Act 2015 Cases Cited: Ainsworth v Albrecht (2016) 261 CLR 167 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1KB 223 Capcelea v The Owners-Strata Plan No. 48887 [2019] NSWCATAD 27 Collins v Urban [2014] NSWCATAP 17 Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425 Goncalves v Bora Developments Pty Ltd; Bora Developments Pty Ltd v Goncalves [2020] NSWCATAP 9 Kimberley Developments Pty Ltd v Cicihour Pty Ltd [2020] NSWCATAP 213 Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 Olive Grove Investment Holdings Pty Ltd v The Owners-Strata Plan No 5942 [2015] NSWCATAD 120 Owners Corporation Strata Plan 5164 v Givney (2013) NSWCTTT 261 Owners of Strata Plan No 74835 v Pullicin [2020] NSWCATAP 5 SZRLO v Minister for Immigration and Citizenship [2013] FCA 825 The Owners of Strata Plan No. 3397 v Tate (2007) 70 NSWLR 344 The Owners-Strata Plan No 12289 v Donaldson [2019] NSWCATAP 213 The Owners – Strata Plan No 37762 v Pham [2006] NSWSC 1287 The Owners-Strata Plan No 69140 v Drewe [2017] NSWSC 845 Walsh v The Owners – Strata Plan No 10349 [2017] NSWCATAP 230 White v Betalli (2006) 66 NSWLR 690 Texts Cited: Nil Category: Principal judgment Parties: Michelle Gelder (Applicant) The Owners – Strata Plan 38308 (Respondent) Representation: Counsel: DD Knoll AM (Appellant)