Liana Maree Taylor v John Merity, Michael Edwards, Pamela Cominos and The Owners-Strata Plan No 76899 [2014] NSWCATCD 195

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Liana Maree Taylor v John Merity, Michael Edwards, Pamela Cominos and The Owners-Strata Plan No 76899 [2014] NSWCATCD 195 Hearing dates: 23 September 2014 (Decision on the papers) Decision date: 24 October 2014 Jurisdiction: Consumer and Commercial Division Before: Geoffrey Meadows, Senior Member Decision: The appeal is dismissed Catchwords: Appeal against Adjudicator's order – appeal filed out of time – extension of time to file appeal Legislation Cited: Civil and Administrative Tribunal Act 2013 Strata Schemes Management Act 1996 Category: Principal judgment Parties: Appellant: Liana Maree Taylor; First Respondent: John Merity; Second Respondent: Michael Edwards; Third Respondent: Pamela Cominos; Fourth Respondent: The Owners -Strata Plan No 76899 Representation: The parties appeared in person File Number(s): SCS 14/34439 Publication restriction: Nil

Judgment 1. On 11 February 2014, the appellant filed an application for an Adjudicator's order, being SCS 14/08210. 2. That application was determined by Adjudicator J. Smith on 30 May 2014. Adjudicator Smith made an order that the respondent was to comply with its obligations under s 62 of the Strata Schemes Management Act 1996 ("the Act") and the adjudication application was otherwise dismissed. According to the information on the Adjudication file, a copy of the order and the reasons for decision were posted to the relevant parties, including the appellant, on 2 June 2014. A copy of the order was posted to the appellant at her home address. 3. Pursuant to s 177 of the Strata Schemes Management Act 1996 ("the Act"), the following provisions apply to an appeal against an Adjudicator's order: 177 Appeal against order of Adjudicator (1) Each of the following persons may appeal against an order made by an Adjudicator under this Part: (a) the applicant for the order, (b) a person who made a written submission on the application for the order, (c) a person required by the order to do or refrain from doing a specified act, (d) in the case of a leasehold strata scheme, the lessor of the strata scheme. Note. An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013. (2) … (3) An appeal must be lodged: (a) in the case of an appeal against an order dismissing an application—not later than 21 days after the order takes effect, or (b) in the case of an appeal against any other order: (i) not later than 21 days after the order takes effect, or (ii) by leave of the Tribunal (given on sufficient cause being shown why the notice was not lodged within the time limited by paragraph (a))—not later than 90 days after the order takes effect. (4) Section 41 of the Civil and Administrative Tribunal Act 2013 does not apply in relation to the periods referred to in subsection (3). 1. On that basis, if the order was served on the appellant, the Owners Corporation and the other parties by 3 June 2014 (as submitted by the respondents) the appeal was required to be lodged no later than 24 June 2014. 2. Pursuant to s 76 of the Interpretation Act 1987, service is deemed to have been effected 4 working days after the date of postage. On that basis, service is deemed to have been effected by 6 June 2014. 3. In accordance with the usual procedures of the Tribunal, the appeal was listed for directions on 13 August 2014, before me. On that occasion, the respondents raised the issue that the appeal had been filed out of time. I made orders for the parties to provide written submissions in relation to that preliminary issue, which, by agreement of the parties, was to be decided on the papers.