McGrath v The Owners – Strata Plan No 13631 [2021] NSWCATAP 167

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: McGrath v The Owners – Strata Plan No 13631 [2021] NSWCATAP 167 Hearing dates: 18 February and 19 March 2021 Date of orders: 4 June 2021 Decision date: 04 June 2021 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member J Lucy, Senior Member Decision: As the appellant has failed on all of his grounds of appeal, and as the respondent included a claim for costs of the appeal in its written submissions, we make the following orders: 1. Appeal dismissed. 2. If any party desires to make an application for costs of the appeal: (a) 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, and any evidence in support of the application, on or before 14 days from the date of these reasons; (b) 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, and any evidence in opposition to the application, on or before 28 days from the date of these reasons; (c) 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; (3) 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: ADMINISTRATIVE LAW — particular administrative bodies — NSW Civil and Administrative Tribunal – Tribunal not bound by the rules of evidence – Tribunal made order that Procedural Direction 3 apply to the proceedings – whether there was power to make order that Procedural Direction 3 apply to the proceedings when s 38(2) of the Civil and Administrative Tribunal Act 2013 provided that the Tribunal was not bound by the rules of evidence – held that there was power – although not bound by the rules of evidence the Tribunal had power to order that Procedural Direction 3 apply to the proceedings to ensure the Tribunal was provided with a satisfactory basis for the findings to be sought at the hearing and that expert opinions were soundly based, complete and reliable Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 26, 36(1), 38(2), 45 Evidence Act 1995 (NSW), s 56(2), 76, 79(1), 135, 136, 137 Strata Schemes Management Act 2015 (NSW), s 106 Uniform Civil Procedure Rules 2005 (NSW), r 31.23(3) Cases Cited: Allen v TriCare (Hastings) Ltd [2016] NSWCATAP 216 Chen v R [2018] NSWCCA 106 Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279 House v The King (1936) 55 CLR 499; [1936] HCA 40 Smith v Ulan Coal Mines Limited [2019] NSWSC 1263 Welker & Ors v Rinehart & Anor (No 6) [2012] NSWSC 160 Wood v The Queen (2012) 84 NSWLR 581; [2012] NSWCCA 21 Texts Cited: Nil Category: Principal judgment Parties: Peter McGrath (Appellant) The Owners – Strata Plan No 13631 (Respondent) Representation: Counsel: B Le Plastrier (Appellant) P J Gow (Respondent)