Kendal v Mackay [2021] NSWCATAP 309

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kendal v Mackay [2021] NSWCATAP 309 Hearing dates: 28 September 2021 Date of orders: 07 October 2021 Decision date: 07 October 2021 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member J Currie, Senior Member Decision: 1. Time to appeal is extended up to and including 9 July 2021. 2. Leave to appeal is granted in relation to Ground 2. 3. Appeal upheld in part. 4. Order 1 made by the Tribunal on 8 June 2021 is varied so that it reads: "Within 2 calendar months of the date of these orders, the respondents are to reinstate the common property of the Strata Plan to the condition it was in prior to the construction of the unauthorised fence. This will include removal of the fence and reinstatement of the lawn and garden." 5. The proceedings are remitted to the Tribunal for consideration by the Tribunal of the appointment by the Tribunal of its own motion of a strata manager to strata plan SP 48348 pursuant to s 237 of the Strata Schemes Management Act 2015 (NSW). 6. The Tribunal is to give consideration to the joinder of Debbie Lacey to the proceedings. Catchwords: LAND LAW – strata title – common property – lot owners not to unilaterally conduct work on common property – orders to restore common property to pre-existing condition – impossibility of complying with part of order – order varied Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), Sch 4 cl 12 Strata Schemes Management Act 2015 (NSW), ss 108, 111, 237 Cases Cited: Stead v State Government Insurance Commission [1986] 161 CLR 141 Category: Principal judgment Parties: Sheila Irene Kendal (First Appellant) Gordon Kendal (Second Appellant) Timothy Andrew Mackay (Respondent) Representation: Appellants in person Respondent in person File Number(s): 2021/00198948 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 8 June 2021 Before: P Harris, General Member File Number(s): SC 21/07745