Brown v The Owners – Strata Plan No. 82527 [2022] NSWCATAP 328

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Brown v The Owners – Strata Plan No. 82527 [2022] NSWCATAP 328 Hearing dates: 4 October 2022 Date of orders: 4 October 2022 Decision date: 20 October 2022 Jurisdiction: Appeal Panel Before: M Harrowell, Deputy President G Burton SC, Senior Member Decision: 1. The orders made on 15 July 2022 in application SC 22/19796 are set aside and the application is to be listed for hearing in the Consumer and Commercial Division in the week commencing 21 November 2022. 2. The application is amended to delete the application for a civil penalty and to seek the following orders: a) An order under s 156(1) of the Strata Schemes Management Act 2015 (NSW) (SSMA) that Tania Brown remove 2 of her 3 dogs from her lot and common property. b) That Ms Brown nominates to the Owners Corporation one of her three dogs that is to remain (the remaining dog). c) An order under s 158(2)(b) of the SSMA that Ms Brown take steps to ensure the remaining dog does not continue to create a nuisance or unreasonable interference. 3. On or before 11 October 2022, the Owners Corporation is to provide particulars of the action required for the purpose of an order under s 158(2)(b) of the SSMA. 4. On or before 25 October 2022, the Owners Corporation is to file and serve any further evidence in support of its application. 5. On or before 11 November 2022, Ms Brown is to file and serve any further evidence in reply. 6. On or before 18 November 2022, the Owners Corporation is to file and serve any evidence in response and a short submission, not more than 5 pages, setting out what orders should be made and why. 7. The Tribunal notes: a) Ms Brown may lodge an application under the by-laws with the Owners Corporation to keep more than one dog, such application to be made by 11 October 2022. b) The Owners Corporation will use its best endeavours to determine such application no later than 4 November 2022. 8. In the event the application is made as recorded in paragraph 7 of these orders and is refused, any application by Ms Brown for an order in connection with such refusal must be lodged not later than 11 November 2022 and is to be listed for hearing with these proceedings. 9. The proceedings are listed for hearing in the week commencing 21 November 2022, the Registrar to advise the exact date for hearing in that week. 10. Leave is given to both parties to be legally represented. 11. Liberty to apply. Catchwords: PRACTICE AND PROCEDURE – Strata Schemes Management Act – Penalty application and application for general orders – impermissibility of combined applications – different provisions concerning evidence and manner of enquiry – different rights of appeal – failure to undertake decision-making task in connection with civil penalty proceedings – failure to exercise jurisdiction – procedural irregularity – power to set aside decision – consent orders to set aside decision. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Regulation 2022 (NSW) Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (repealed) Strata Schemes Management Act 1996 (NSW) (repealed) Strata Schemes Management Act 2015 (NSW) Cases Cited: Atkinson v Crowley [2011] NSWCA 194 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; [2015] HCA 46 Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729 at 736; [1996] 3 All ER 843 Minister for Immigration & Multicultural Affairs v Bhardwaj 209 CLR 597; [2002] HCA 11 National Companies & Securities Commission v News Corporation Ltd (1984) 156 CLR 296; [1984] HCA 29 The Owners – Strata Plan No. 21367 v Letchford [2021] NSWCATCD 112 The Owners – Strata Plan No 82306 v Anderson [2017] NSWCATCD 85 Texts Cited: None cited Category: Principal judgment Parties: Tania Kathleen Anne Brown (Appellant) The Owners – Strata Plan 82527 (Respondent) Representation: Solicitors: Appellant (Self Represented) Button & Associates Pty Ltd (Respondent) File Number(s): 2022/00225285 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 15 July 2022 Before: D Harvey, General Member File Number(s): SC 22/19796