Moallem v Consumer, Trader and Tenancy Tribunal & Ors [2013] NSWSC 1700

Supreme Court New South Wales

Medium Neutral Citation: Moallem v Consumer, Trader and Tenancy Tribunal & Ors [2013] NSWSC 1700 Hearing dates: 1 and 4 November 2013 Decision date: 04 November 2013 Jurisdiction: Equity Division Before: White J Decision: Refer to para [32] and following of judgment of 4 November 2013 Catchwords: REAL PROPERTY - strata title - application to set aside resolutions of owners corporation and quash decision of Strata Schemes Adjudicator - notice of application pursuant to s 135 of the Strata Schemes Management Act 1996 - Wednesbury unreasonableness - procedural fairness - jurisdiction of adjudicator pursuant to s 153(1) - effect of orders of superior court of record - orders valid until set aside - a Strata Schemes Adjudicator is not the Consumer, Trader and Tenancy Tribunal (CTTT) - joinder of individual adjudicator as appropriate defendant - Strata Schemes Adjudicator a tribunal for the purposes of s 69(4) of the Supreme Court Act 1970 - setting aside resolutions of owners corporation - resolutions made contrary to court order but pursuant to decision of Strata Schemes Adjudicator - power of court to make order allowing owners corporation to levy lot owners other than in proportion to unit entitlement - interpretation of court orders - meaning of "necessary" Legislation Cited: Strata Schemes Management Act 1996 Environmental Planning and Assessment Act 1979 Supreme Court Act 1970 Civil Procedure Act 2005 Consumer, Trader and Tenancy Tribunal Act 2001 Cases Cited: Phillips v Walsh (1990) 20 NSWLR 206 Owners, Strata Plan 50411 v Cameron North Sydney Investments Pty Ltd [2003] NSWCA 5 Symes v The Proprietors, Strata Plan 31731 [2003] NSWCA 7 Short v Crawley (No. 45) [2013] NSWSC 1541 New South Wales v Kable [2013] HCA 26; (2013) 298 ALR 144 Owners, Strata Plan 60919 v Consumer, Trader and Tenancy Tribunal & Ors [2009] NSWSC 1158; 16 BPR 31,673 Gillett v Walsh [2009] NSWSC 1436 Kerr v Commissioner of Police [1977] 2 NSWLR 721 Sinkovich v Attorney General of NSW [2013] NSWCA 383 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 Category: Principal judgment Parties: Susan Moallem (Plaintiff) Consumer, Trader and Tenancy Tribunal (1st Defendant) Owners' Corporation, SP 79205 (2nd Defendant) Luiz Marcos (3rd Defendant) Benvinda Aura Nunes Xabregas (4th Defendant) Westpac Banking Corporation (5th Defendant) Representation: Counsel: M A Friedgut (Plaintiff) By mention (1st Defendant) D Radman, sol'r (2nd Defendant) In person (3rd and 4th Defendants) S Docker and Ms K Fraser (5th Defendant, submitting appearance) Solicitors: Slater & Gordon (Plaintiff) Grace Lawyers (2nd Defendant) Kemp Strang (5th Defendant) File Number(s): 2013/327776