Jack Tilburn v The Owners-Strata Plan No 21079 [2014] NSWCATCD 204

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Jack Tilburn v The Owners-Strata Plan No 21079 [2014] NSWCATCD 204 Hearing dates: 20 October 2014 Decision date: 28 October 2014 Jurisdiction: Consumer and Commercial Division Before: S Westgarth, Deputy President Decision: Application dismissed Catchwords: Application for reinstatement – S 55(2) Legislation Cited: The Civil and Administrative Tribunal Act (NSW) 2013 (the Act) The Strata Schemes Management Act 1996 (SSMA) Cases Cited: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Category: Principal judgment Parties: Jack Tilburn (applicant) The Owners-Strata Plan No 21079 (respondent) Representation: J Tilburn (in person) Mr Prestipino (for the respondent) File Number(s): SCS 14/15790 Publication restriction: Unrestricted

REASONS FOR DECISION

BACKGROUND 1. This is an application under s 55(2) of the Act to reinstate proceedings which were dismissed on 11 June 2014. Those proceedings were an appeal from a decision of an Adjudicator published on 20 February 2014. The Adjudicator was exercising functions conferred by virtue of the SSMA. The applicant had sought orders from the Adjudicator invalidating one or more resolutions of the executive committee of the Body Corporate and seeking the appointment of a compulsory manager. The Adjudicator dismissed the application. The applicant appealed to the Tribunal and on 11 June 2014 the appeal was dismissed. 2. The Adjudicator stated that the applicant had not provided any evidence that is relevant to the making of an order for the appointment of a strata manager and that the applicant had failed to supply the requisite consent by a strata manager to be appointed. In addition the Adjudicator stated that the applicant had provided no evidence in support of the application that certain motions contested by the applicant should be invalidated. 3. As stated the applicant lodged an appeal in respect of the Adjudicator's decision and that appeal first came before the Tribunal on the 9 April 2014 for directions. The directions hearing was listed before the same Member who was the Adjudicator. That was an error and contrary to Tribunal practice but the matter was appropriately dealt with by adjourning the proceedings for a later directions hearing. That directions hearing occurred on 5 May 2014 before another Member. The applicant was present as was a representative of the Owners Corporation. Directions were made for the parties to exchange any relevant documents upon which they proposed to rely at the appeal. The applicant complied with that order by filing with the Tribunal a document received on the 19 May 2014. The respondent complied by filing a document received on 3 June 2014. 4. The Tribunal forwarded a Notice of Directions Hearing on 6 May 2014 advising the parties that the application had been listed before the Tribunal on 11 June 2014 at 9:15 am. That notice included the following warning: "It is important that you are on time as the Tribunal may decide the matter in your absence. The decision will be binding on you." 1. When the proceedings came before the Tribunal on 11 June a representative of the respondent was present but the applicant was not present. The Tribunal went on to determine the matter in the absence of the applicant. The Tribunal dismissed the appeal because: "The appeal is vexatious and misconceived, the appellant has failed to appear." In addition there was an order that the appellant pay the cost of the respondent in the sum of $ 600. 2. The applicant then forwarded a facsimile to the Tribunal on 8 July 2014 seeking to have the proceedings reinstated pursuant to provisions of section 55(2) of the Act. Unfortunately, the Tribunal Registry did not treat that as an application for reinstatement but instead treated it as a complaint about the conduct of the earlier hearing. It was therefore dealt with within the Registry as a complaint. 3. Subsequently the application came to the attention of the Deputy President who determined that the matter should be listed for a hearing of the application for reinstatement as contained in the facsimile received on 8 July 2014.