The Owners – Strata Plan No. 100526 v Hamdan [2024] NSWCATAP 222

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: The Owners – Strata Plan No. 100526 v Hamdan [2024] NSWCATAP 222 Hearing dates: 17 October 2024 Date of orders: 06 November 2024 Decision date: 06 November 2024 Jurisdiction: Appeal Panel Before: A Bell SC, Senior Member G Ellis SC, Senior Member Decision: (1) The appeal is allowed. (2) The orders made by the Tribunal on 29 April 2024 in proceedings 2022/00416316 are set aside. (3) The proceedings are remitted for reconsideration by a differently constituted Tribunal. (4) The Tribunal in the remitted proceedings may allow the parties to rely on such further evidence as the Tribunal considers appropriate. (5) In relation to the costs of the appeal, if either party wishes to seek an order for costs, it is to file and serve submissions (of not more than five pages) and any relevant evidence within 14 days of the date of these orders. (6) Any submissions (of not more than five pages) and evidence in response are to be filed and served within the following 14 days. (7) Any submissions (of not more than two pages) and evidence in reply are to be filed and served within the following 7 days. (8) It is noted that the question of what costs order should be made in relation to the first instance proceedings does not yet appear to have been finalised. Catchwords: APPEALS – Error on a question of law – scope of discretion conferred by statute misconceived LAND LAW – Strata title – discretionary factors – impact on common property considered – discretion not confined to that impact CIVIL PROCEDURE – Inclusion of basis for claim in outline submissions insufficient – leave to amend should be sought prior to or at outset of hearing Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Strata Schemes Management Act 2015 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32;(2023) 414 ALR 635 House v The King [1936] HCA 40; 55 CLR 499 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 The Owners Corporation Strata Plan No. 63341 v Malachite Holdings Pty Ltd [2018] NSWCATAP 256 McDonnell v The Owners-Strata Plan No64191 [2022] NSWSC1631 New South Wales Housing Corporation v Orr [2019] NSWCA 231 Owners Corporation SP 22607 v Yang [2018] NSWCATCD 3 Smith v The Owners – Strata Plan No. 43094 [2024] NSWCATAP 186 The Owners – Strata Plan No 5319 v Price [2019] NSWCATCD 3 Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 Texts Cited: None cited Category: Principal judgment Parties: Appellant – The Owners – Strata Plan No. 100526 Respondents – Rolia Hamdan and Charlie Hamdan Representation: Counsel: M Baroni (Respondent)