The Owners Strata Plan 675 v York & Edwards [2022] NSWCATAP 171

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: The Owners Strata Plan 675 v York & Edwards [2022] NSWCATAP 171 Hearing dates: On the papers Date of orders: 24 May 2022 Decision date: 24 May 2022 Jurisdiction: Appeal Panel Before: P Durack, Senior Member G Sarginson, Senior Member Decision: (1) The appeal is allowed. (2) Set aside the order made by the Tribunal on 18 October 2021 dismissing the application the subject of those proceedings. (3) The proceedings are remitted to a differently constituted Tribunal for redetermination of so much of the application as concerned whether the Tribunal should make the order sought under s 236 (1) of the Strata Schemes Management Act 2015 (NSW), including the question as to what are the current unit entitlements of each of the lots in the strata scheme, in circumstances where: (a) It has already been determined by the Tribunal, in accordance, with that section and s 236 (2) of that Act that it considers that the allocation of unit entitlements among the lots was unreasonable when a strata plan of subdivision was registered on 17 June 2014, as required by s 236 (1) (a) of that Act. (b) The respective values of each of the lots, within the meaning of s 236 (2) of that Act, has been ascertained by the Tribunal as being the values set out under the "Certificate of Value" set out on page 53 of the Keen Report (as referred to in these reasons). (4) Such redetermination is to be made on the basis of the evidence already adduced to the Tribunal at first instance and such further evidence as the Tribunal may allow. Catchwords: LAND LAW - strata title - application under s 236 of the Strata Schemes Management Act 2015 (NSW) for an order allocating unit entitlements among the strata scheme lots - consideration of factors other than market values of the lots. APPEALS - exercise of discretionary power-errors of law-taking account of irrelevant considerations Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Conveyancing (Strata Titles) Act 1961 (NSW) Strata Schemes Development Act 2015 (NSW) Strata Schemes Management Act 1996 (NSW) Strata Schemes Management Act 2015 (NSW) Strata Titles Act 1973 (NSW) Cases Cited: Anderson Stuart v Treleavan [2000] NSWSC 283; 49 NSWLR 88 House v R (1936) 55 CLR 499 Sahade v Owners Corporation SP 62022 [2014] NSWCA 208 Seeto v The Owners Strata Plan No 49458 [2019] NSWCATAP 166 Spencer v The Commonwealth (1907) 5 CLR 418: Texts Cited: Nil Category: Principal judgment Parties: The Owners Strata Plan 675 (Appellant) The Owners Strata Plan 675 (First Respondent) Bernadette York and Kevin Edwards (Second Respondents) Representation: Solicitors: Tankards Law (Appellant) B. York and K. Edwards self-represented (Respondents) File Number(s): AP 2021/00324989 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not Applicable Date of Decision: 18 October 2021 Before: G Meadows, Senior Member File Number(s): SC 21/17511