The Owners Strata Plan No. 58146 v Peter Faeghi [2012] NSWDC 13

District Court New South Wales

Medium Neutral Citation: The Owners Strata Plan No. 58146 v Peter Faeghi [2012] NSWDC 13 Hearing dates: 23 February 2012 Decision date: 23 February 2012 Before: MURRELL SC DCJ Decision: Appeal allowed; Order for costs set aside Catchwords: CTTT Costs Lacking in substance Revised schedule of unit entitlements Community scheme Legislation Cited: Community Land Management Act 1989, s 78, s104 Cases Cited: The Owners Corporation of Strata Plan 4521 v Zouk & Anor. [2007] NSWCA 23 Category: Principal judgment Parties: The Owners Strata Plan No. 58146 Peter Faeghi Representation: Mr V Kerr (Plaintiff) Mr A Kaufmann File Number(s): 2011/317473

Judgment

Background 1The plaintiff appeals against a costs decision of the Consumer Trader and Tenancy Tribunal (the CTTT). 2A community scheme was established to create a staged development on a site in Waverton. The deposited plan consisted of five lots. One lot was community property. Three lots were development lots. The final lot contained a heritage building, which was to be used as a cafe/restaurant (or another use approved by the local council). The restaurant was a commercial failure. The council approved a change to residential use. The defendant purchased the property. The plaintiff (the owner of one of the development lots) was dissatisfied because, under the initial schedule of unit entitlements, the defendant's lot attracted a very small entitlement and the plaintiff wanted the defendant to make a greater contribution to community scheme levies. 3The plaintiff made an application to the CTTT under s 78 of the Community Land Management Act 1989 (the Act), seeking a revised schedule of unit entitlements. The plaintiff's application was dismissed (the principal decision). At par (42) of the principal decision, the CTTT stated: " A major factor in this result has been a lack of reliable evidence on the plaintiff's part." The defendant's application for costs was successful (the costs decision). At par (10) of the costs decision, the CTTT stated: "The finding that the basis for dismissal was the lack of reliable evidence amounts to a finding that the applicant's case was lacking in substance." There has been no appeal against the principal decision. 4The costs appeal raises a question of law: Whether, given the reasoning in the principal decision, it was open to the CTTT to order costs on the basis that the plaintiff's application was "lacking in substance".