Marinko v The Owners – Strata Plan No 7596 [2022] NSWCATAP 187

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Marinko v The Owners – Strata Plan No 7596 [2022] NSWCATAP 187 Hearing dates: 10 and 11 May 2022 Date of orders: 07 June 2022 Decision date: 07 June 2022 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member D Robertson, Senior Member Decision: (1) The appeal is allowed. (2) The orders made by the Tribunal on 25 November 2021 and 10 February 2022 are set aside. (3) The proceedings are remitted to a differently constituted Tribunal for redetermination. (4) The redetermination of the proceedings is to be made upon the evidence already presented to the Tribunal at first instance and such further evidence as the parties may wish to present concerning events and circumstances that have occurred since 31 May 2021 (the last day of the hearing before the Tribunal), only. (5) No order as to the costs of the appeal. Catchwords: LAND LAW - Strata titles - application for the appointment of a compulsory strata manager under s 237 of the Strata Titles Management Act 2015 (NSW) (SMA) - alleged failure by the owners corporation to comply with consent orders made in earlier proceedings in respect of rectification work to be done for the benefit of a lot owner, including to raise special levies - alleged breach by the owners corporation of s 106 of the SMA - costs order made against the lot owner in dismissing his proceedings against the owners corporation on the basis he was the unsuccessful party. APPEAL - alleged errors of law, principally, by the Tribunal failing to respond to substantial and significant submissions and supporting evidence - whether Rule 38 of the Civil and Administrative Rules 2014 (NSW) was applicable to the proceedings at first instance and, hence, on appeal by reason of Rule 38A. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Strata Schemes Management Act 2015 (NSW) Cases Cited: Allen v Tricare (Hastings) Ltd [2017] NSWCATAP 25 ARG 15 & Others v Minister for Immigration and Border Protection and Another [2016] FCAFC 174; 250 FCR 109 Bischoff & Ors v Rita Sahade & Anor [2015] NSWCATAP 135 Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 DYH v Public Guardian (No 3) [2022] NSWCATAP 34 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 Jabulani v Walkabout II Pty Ltd [2016] NSWCA 267 Lee v The Owners – Strata Plan No. 56120 [2021] NSWCATCD 8 Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited; Forbidden Foods Pty Limited v Rice Marketing Board for the State of New South Wales [2020] NSWCATAP 182 Rodger v De Gelder [2015] NSWCA 211 Secretary, NSW Department of Education v Gabriel's Family Day Care Pty Ltd [2021] NSWCATAP 263 The Owners - Strata Plan No 1813 v Keevers (No 2) [2021] NSWCATAP 229 The Owners – Strata Plan No 55773 v Roden (Costs) [2020] NSWCATAP 197 The Owners – Strata Plan No 58068 v Cooper (Costs) [2020] NSWCATAP 198 The Owners Corporation Strata Plan No. 63341 v Malachite Holdings Pty Ltd [2018] NSWCATAP 256 The Owners – Strata Plan No 63731 v B & G Trading Pty Ltd (No 2) [2020] NSWCATAP 273 The Owners – Strata Plan No 76700 v Trentelman (No 2) [2021] NSWCATAP 268 The Owners – Strata Plan No 90189 v Liu (No 2) [2022] NSWCATAP 74 Texts Cited: None cited Category: Principal judgment Parties: Neville Marinko (Appellant) The Owners – Strata Plan No 7596 (Respondent) Representation: Counsel: D Knoll (Appellant)