THE OWNERS - STRATA PLAN NO. 37762 v DINH PHUONG DUNG PHAM and anor [2006] NSWSC 1287

New South Wales Supreme Court

CITATION : THE OWNERS - STRATA PLAN NO. 37762 v DINH PHUONG DUNG PHAM and anor [2006] NSWSC 1287

HEARING DATE(S) : 20/02/2006, 21/02/2006

JUDGMENT DATE : 29 November 2006

JURISDICTION : Supreme Court

JUDGMENT OF : Rothman J

DECISION : (i) To the extent necessary, leave to appeal is granted; (ii) Appeal against the orders made by the Consumer, Trader and Tenancy Tribunal ("the Tribunal") on 18 October 2005 in application SCS05-10475 is granted; (iii) The orders made by the Tribunal on 18 October 2005 in the matter, pursuant to s138 of the Strata Schemes Management Act 1996 ("the Act"), are quashed.

CATCHWORDS : CIVIL LAW - Strata Schemes Management Act - Jurisdiction of Consumer Trader & Tenancy Tribunal - planning and development - Council grant of development approval void ab initio for want of owners' consent - exclusive use by-law from owners' corporation to be gained before lodging development application with Consent Authority (Council) - construction of Environmental Protection and Assessment Act 2001 - retrospective consent for work already completed - orders of Consumer, Trader and Tenancy Tribunal quashed.

Australian Securities and Investments Commission Act 2001 Consumer, Trader & Tenancy Tribunal Act 2001 Corporations Act 2001 LEGISLATION CITED : Crimes (Local Courts Appeal and Review) Act 2001Environmental Protection and Assessment Act 1979 (NSW)Environmental Protection and Assessment Regulations 2000 Strata Schemes Management Act 1996 Suitors' Fund Act 1951

Halpin v SCC (2000) 110 LGERA 464 Harris Farm Markets Pty Ltd v Ashfield Fresh Pty Ltd and Anor [2002] NSWLEC 106 Hutchison v RTA [2000] NSWCA 332 CASES CITED : Owners Lot and Strata Plan 37762 v Pham and Others [2005] NSWLEC 500 Owners Strata Plan No. 50411 & Ors v Cameron North Sydney Investments [2003] NSWCA 5 R v Kirby; Ex parte Boilermakers' (1956) 94 CLR 254 R v Moore; ex parte Graham (1977) 138 CLR 164