Sahade v The Owners - Strata Plan 62022 [2014] NSWCA 208

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Sahade v The Owners - Strata Plan 62022 [2014] NSWCA 208 Hearing dates: 3 June 2014 Decision date: 01 July 2014 Before: McColl JA at [1]; Basten JA at [2]; Sackville AJA at [55] Decision: (1) Set aside the order of the District Court remitting the matter to the Consumer, Trader and Tenancy Tribunal. (2) In place of that order, order that: (i) the decision of the Consumer, Trader and Tenancy Tribunal (Strata and Community Schemes Division) made on 4 September 2012, dismissing an application for variation of unit entitlements, be set aside; (ii) order that the New South Wales Civil and Administrative Tribunal redetermine so much of the application as concerned - (a) whether the original allocation of unit entitlements was unreasonable; (b) if so, whether the unit entitlements should be reallocated, and (c) if so, the appropriate allocation of unit entitlements, on the basis of the values of the respective lots assessed by the Tribunal on 4 September 2012. (3) Declare that in deciding the questions set out at 2(ii)(b) and (c), the Tribunal is entitled to take into account: (a) if a variation in the allocations will affect the level of control of the owners' corporation currently enjoyed by each lot holder, that fact, and (b) if a particular reallocation could lead to the potential for deadlock in voting at meetings of the owners' corporation, that fact. (4) Order the applicant to pay the costs of the active respondents in this Court, being the owners' corporation up to 2 June 2014 and the second, third and fourth respondents thereafter. (5) Grant the parties leave to - (a) make submissions as to the source of the appeal to the District Court and the appropriateness of orders (2) and (3) set out above, and (b) seek a variation of orders (2) and (3) above on the basis of any submissions made pursuant to (a), within 14 days of the date of this judgment. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: ADMINISTRATIVE LAW - judicial review - error of law - tribunal declined to reallocate unit entitlements in strata scheme - appeal to District Court - remittal to tribunal ordered on the basis that there was a failure to give reasons - whether an error of law disclosed in requiring the issue of control of strata scheme management to be considered on remittal