Lai v Community Association DP 270214 [2016] NSWCATCD 58

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lai v Community Association DP 270214 [2016] NSWCATCD 58 Hearing dates: 11 May 2016 (final submission's received 7 June 2016) Decision date: 03 August 2016 Jurisdiction: Consumer and Commercial Division Before: T Simon, Senior Member Decision: Appeal Dismissed Catchwords: Community Association, breach of by-law, withholding of consent Legislation Cited: Community Land Management Act 1989 (NSW) Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Owners SP 56911 v Stricke (Strata and Community Schemes) [2012] NSWCTTT 392 Category: Principal judgment Parties: Poh Wah Irene Lai (Appellant) Community Association DP 270214 (Respondent) Representation: Counsel: Ms M McMahon for the Appellant

Mr White a previous lot owner for the Respondent and Mr Koble (Chairperson of the Executive Committee) File Number(s): SCS 16/03326

Reasons for the DecIsion 1. The application was lodged with the Registry on 20 January 2016 and is an appeal of an Adjudicator's decision made on 2 December 2015. The following orders were made against the Appellant: 1. The respondents Chi Leung Au-Leung and Po Wah Irene Lai shall on or before 28 February 2016 remove all the security cameras and all related conduits on the exterior of their lot that have been installed without the permission of the Community Association and return the common property to its original condition, colour and state. 2. The respondents Chi Leung Au-Leung and Po Wah Irene Lai shall on or before 28 February 2016 remove the loose stacked faux brick walls on either side of their garden on their lot that have been installed without the permission of the Community Association and return the common property to its original condition and state" 1. The Appellant is seeking the following orders: 1. The appeal is upheld; 2. The order made by the adjudicator on 2 December on file number SCS 15/54030 be revoked; 3. The application for adjudication SCS 15/54030, lodged on 23 September 2015, be dismissed immediately. 1. The application for adjudication was made by the Community Association seeking orders that the Appellant remove a security camera and all related conduits and loose stacked faux brick walls on either side of their garden. The Community Association alleged that the items had been installed on the lot by the lot owner in breach of the by-laws and without approval from the Community Association. The Respondent had also sought an order that the Appellant return the common property to its original state. The initial adjudication had also been seeking an order that the lot owner remove the security screens across the fixed glass panels. The Adjudicator found that consent had been obtained for installation of those screens and they are not an issue in this appeal. 2. The Tribunal is of the view that this is a hearing de-novo and adopts the reasoning articulated in Owners SP 56911 v Stricke (Strata and Community Schemes) [2012] NSWCTTT 392 which concluded: 47. The provisions of sections 181 and 186 of the Act are, in my opinion, such as to demonstrate that an appeal from an Adjudicator's decision is by way of a hearing de novo. On that basis, the Tribunal is not required to first demonstrate error on the part of the Adjudicator, is required to exercise its own jurisdiction in relation to the appeal and therefore may consider fresh evidence - indeed, it follows in my view that where the factual situation has changed or better evidence becomes available, whether or not such evidence was available to the adjudicator, the Tribunal would be required to allow that fresh evidence in order to give proper consideration to the issues. 1. In that regard directions were made by the Tribunal on 10 February 2016 for the parties to exchange documents. The Tribunal received the following: 1. Submissions and documents from the Appellant on 11 March 2016. 2. Submissions and documents from the Respondent on 6 April 2016. 3. A further statement with attachments from the Appellant on 5 May 2016. 4. A statement from Ms Patricia White for the Respondent on 9 May 2016. That statement was provided outside the directions of the Tribunal and the Respondent sought leave for the Tribunal to allow the statement. The Appellant objected on the basis that the statement was prejudicial in that it was signed but not sworn and on the basis that Ms White was not available for cross examination in relation to the statement. Consideration of the statement was allowed subject to weight. 5. The Appellant's submission's in reply on 9 May 2016. 6. Submissions in relation to the issue of the appeal being made within time were provided by the Appellant on 13 May 2016. 7. Submissions and a bundle of documents were received from the Respondent on 27 May 2016. They contain material beyond simply addressing the issue of the appeal being made out of time and go to the substance of the appeal itself. The Appellant wrote to the Tribunal on 7 June 2016 objecting to those further submission's and documents being relied on. Consistent with the principals in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, the Tribunal has only considered those documents and submissions in so far as they related to whether the appeal was made within time. 1. Otherwise, the Tribunal confirmed that each party had received the other party's documents and had been given an opportunity to view them. Accordingly, all those documents received by the Tribunal from the parties have been considered in coming to this decision.