Phillip Nolan v The Owners - Strata Plan No 5803 [2014] NSWCATCD 47

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Phillip Nolan v The Owners - Strata Plan No 5803 [2014] NSWCATCD 47 Hearing dates: 5 November 2012 Decision date: 10 April 2014 Before: R F Buckley, Senior Member Decision: The applications in SCS12/26301 and SCS12/26299 are dismissed. The appeals are both lacking in substance. The applicant, Phillip Nolan in applications SCS 12/26301 and SCS 12/26299 is ordered to pay the costs of the respondent in both matters, Owners Corporation SP 5803,as agreed or assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004. Catchwords: Error arising from an accidental slip or omission Legislation Cited: Consumer Trader & Tenancy Tribunal Regulation 2009 (NSW) (repealed) Civil and Administrative Tribunal Act 2013 Strata Schemes Management Act 1996 Cases Cited: Koidu von Reisner v Chepurin & Anor [2013] NSWSC 874 Category: Principal judgment Parties: Phillip Nolan (applicant) The Owners - Strata Plan No 5803 (respondent) Representation: - File Number(s): SCS 12/26299 & SCS 12/26301 Publication restriction: Unrestricted

reasons for decision APPLICATION 1.This is an application brought by the applicant pursuant to s 62(2) of the Civil and Administrative Tribunal Act 2013 requesting a written statement of reasons for the decision of the Tribunal of 11 March 2014, altering an order of the Tribunal dated 6 November 2013 pursuant to the terms of s50 of the Consumer, Trader and Tenancy Tribunal Act 2001 (the CTTTA) (repealed, but the provisions of which are applicable in accordance with the transitional provisional provisions of Division 3, Schedule 1 of the Civil and Administrative Tribunal Act 2013). 2.Neither the original substantive decision of the Tribunal dated 29 May 2013 nor the original costs decision of 6 November 2013 contained any reference to a dismissal of the applications, that being a statutory prerequisite to the Tribunal making an order for the payment of costs pursuant to s 192 of the Strata Schemes Management Act 1996 (the SSMA).The decision of 6 November 2013 ordered the applicant in both proceedings to pay the costs of the respondent, referring to certain reasons in the substantive decision and concluding at paragraph 7 of the reasons of 6 November 2013 that the appeals in both applications were lacking in substance. 3.On 3 January 2014 the Tribunal received a letter dated 31 December 2013 from the solicitor for the respondent requesting an alteration of the previous orders made by the Tribunal, in accordance with the provisions of s 50 of the CTTTA, by correcting the accidental omission of dismissal orders with respect to both applications. 4.Submissions were called for and provided by both parties as to "whether or not, and for what reasons, the submission that the Tribunal make the order sought pursuant to Section 50 of the Consumer, Trader and Tenancy Tribunal Act 2001 should be accepted." 5.I have read and considered the submissions of both parties. DECISION 6.In providing examples of "obvious errors in the text of a decision or statement of reasons for a decision, "s 50(3)(b) includes "an error arising from an accidental slip or omission." 7.The applicant submits, inter alia that the Tribunal is precluded from exercising its discretion under s 50 CTTTA by reason of the asserted preventative effect of s 189 of the SSMA which provides that "unless specifically provided by this Act, an order made by the Tribunal is not capable of being varied or revoked by the Tribunal." 8.On 6 November 2013 the Tribunal made an order directing the applicant to pay the legal costs of the respondent. That order is neither being varied nor revoked. 9.Under s 185(5) of the SSMA the, "Tribunal may, by order, dismiss an appeal." This section is not inconsistent with the Tribunal making a separate corrective order under s 50 CTTTA dismissing the relevant applications. 10.I do not accept the applicant's submission that the Tribunal was functus officio after making its substantive decision affirming the Adjudicator's orders, and failing at that point to dismiss the applications. It should be noted that submissions on costs were requested and it was only after consideration was given to those submissions, was a discretionary decision made to make a costs order in accordance with s 192 of the SSMA. As at 6 November 2013 it was incumbent on the Tribunal to dismiss the applications before any costs order could be made against the applicant. 11.The applicant's submission as to incurring District Court costs is, in my view not appropriate. The corrective avenue of a s 50 application was at all times open to the respondent. 12.I accept the submission of the respondent that the circumstances of its present application would justify, pursuant to s 50(1) CTTTA the Tribunal being, "satisfied that there is an obvious error in the text of a notice of the decision." 13.The comments of Slattery J in Koidu von Reisner v. Chepurin & Anor [2013] NSWSC 874 at [11] and [12] are apposite; "The slip rule generally applies where the fact of an error, mistake or omission or a "slip" is a matter on which no real difference of opinion can exist. It applies even if there are different possible "corrections" to the alleged error. But the essential common feature of the application of the rule is that the choice between those competing corrections does not involve a matter of controversy or of substance or require the exercise of independent discretion: See Elyard Corp Pty Limited v DDB Needham (Sydney) Operations Pty Limited (1995 61 FCR 385 at 390-392 and Newmont Yandall Operations Pty Limited v J Aron Corporation [2007] NSWCA 195." "A convenient criterion for determining whether a proposed correction is justified is the hypothetical inquiry whether the supposed error, if it had been drawn to the attention of the Court or the parties at the relevant time, would have been corrected as a matter of course: See Hatton v Harris [1892] AC 547 at 558." 14.Once a determination had been made within the terms of s 192(a) of the SSMA that the applications (SCS 12/26299 and SCS 12/26301), were lacking in substance, an exercise of independent discretion was not required. The failure to make a separate order dismissing the applications was an accidental omission on the part of the Tribunal. 15.For the reasons set out above the making of an alteration under s 50 of the CTTTA is justified. (signed) R F Buckley Senior Member Civil and Administrative Tribunal of New South Wales 10 April 2014 I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar