Kaye v The Owners – Strata Plan No 4350 [2022] NSWSC 1386

Supreme Court New South Wales

Medium Neutral Citation: Kaye v The Owners – Strata Plan No 4350 [2022] NSWSC 1386 Hearing dates: 19 September 2022 Date of orders: 14 October 2022 Decision date: 14 October 2022 Jurisdiction: Common Law Before: Basten AJ Decision: (1) With respect to the decision of the Appeal Panel given on 25 May 2022 dismissing the appeal from the senior member – (a) Grant the plaintiffs leave to appeal, pursuant to s 83(1) of the Civil and Administrative Tribunal Act 2013; (b) Dismiss the appeal. (2) With respect to the application for leave to appeal from the decision of the Appeal Panel given on 28 July 2022 awarding costs – refuse the plaintiffs leave to appeal. (3) Order that the plaintiffs pay the defendant's costs in this Court. Catchwords: LAND LAW – strata title – common property – two by-laws to obtain rights to exclusive use and enjoyment of common property – first proposal offered repairs and maintenance – second proposal offered monetary compensation – other lot owners concerned about noise, loss of privacy, lack of compensation, floodgates for applications – whether refusal of first proposal unreasonable under Strata Schemes Management Act 2015 (NSW), s 149(1) – Tribunal not required to weigh interests in determining whether refusal unreasonable – other lot owners entitled to have regard to own interests and rely on experience and beliefs LAND LAW – strata title – Strata Schemes Management Act 2015 (NSW), s 149(2) – s 149(2) considerations addressed to whether to order making of by-law – proponents' rights and expectations not to be weighed against other lot owners' interests COSTS – party/party – appeal from NCAT Appeal Panel – finding of special circumstances – no mandatory considerations – unsuccessful appeal and fact of legal representation permissible considerations – finding of complexity – Tribunal's power to award costs absent special circumstances – Civil and Administrative Tribunal Act 2013 (NSW), ss 35, 60 – Civil and Administrative Tribunal Rules 2014 (NSW), rr 38 and 38A Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), Pt 4, Sch 4, ss 4, 17, 25, 35, 60, 80, 81, 83 Civil Procedure Act 2005 (NSW), s 98 Strata Schemes Management Act 2015 (NSW), Pt 7, Div 3, ss 5, 106, 126, 141, 142, 149 Supreme Court Act 1970 (NSW), s 101 Civil and Administrative Tribunal Rules 2014 (NSW), rr 38, 38A Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: Capcelea v The Owners – Strata Plan No 48887 [2019] NSWCATCD 27 Cooper v The Owners – Strata Plan No 58068 (2020) 103 NSWLR 160; [2020] NSWCA 250 Emery Kaye v The Owners – Strata Plan No 4350 (Civil and Administrative Tribunal (NSW), 29 November 2021, unrep) Category: Principal judgment Parties: Adam Emery Kaye, Bella Rebecca Kaye, Robert George Kaye (Plaintiffs) The Owners – Strata Plan No 4350 (Defendant) Representation: Counsel: Mr R Newlinds SC / Ms M Hall (Plaintiffs) Mr M Isaac (Defendant)