Colbert v MacDonald & Ors [2016] NSWSC 1291

Supreme Court New South Wales

Medium Neutral Citation: Colbert v MacDonald & Ors [2016] NSWSC 1291 Hearing dates: 28 July 2016 Decision date: 15 September 2016 Jurisdiction: Common Law - Administrative Law Before: N Adams J Decision: (1) Quash the decision made by the third defendant on 28 October 2015. (2) That the parties be heard further as to costs. Catchwords: ADMINISTRATIVE LAW – judicial review – where plaintiff claims that he was denied procedural fairness – whether plaintiff received notice of application to Adjudicator – question of fact – unnecessary to consider ground

ADMINISTRATIVE LAW – judicial review of decision of Strata Schemes Adjudicator – whether decision affected by jurisdictional error – whether Adjudicator purported to exercise the wrong power – where Adjudicator did not comply with statutory pre-conditions to exercise of correct power – jurisdictional error made out - relief granted Legislation Cited: Civil and Administrative Regulation 2013 (NSW), cl 9(1) Civil and Administrative Tribunal Act 2013 (NSW), ss 34, 79 Evidence Act 1995 (NSW), s 69(1) Strata Schemes Management Act 1996 (NSW), ss 51, 52, 65A, 135, 136, 140, 144, 158, 171, 177, 217, 236 Supreme Court Act 1970 (NSW), s 69 Cases Cited: Annetts v McCann (1990) 170 CLR 596 Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59 Brown v Bluestone Property Services Pty Ltd [2010] NSWSC 869 Buzrio Pty Limited v Consumer, Trader & Tenancy Tribunal [2009] NSWSC 836 Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44 Mahenthirarasa v State Rail Authority of New South Wales (2008) 72 NSWLR 273; [2008] NSWCA 201 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Citizenship v Khadgi (2010) 274 ALR 438; [2010] FCAFC 145 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 Muin v Refugee Review Tribunal (2002) 76 ALJR 966 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Category: Principal judgment Parties: Jamey Colbert (Plaintiff) John MacDonald (First Defendant) The Owners – Strata Plan 15005 (Second Defendant) Peter Smith (Third Defendant) Representation: Counsel: J E Lazarus with M E Sheldon (Plaintiff) In person (First Defendant)