Decisions table

CORPORATIONS – application for reinstatement of company – company formerly involved in development of home units – wound up and deregistered soon after completion of development – proceeds of sale of apartments transferred prior to winding up to another company – alleged defects in construction – purpose of reinstatement to join company as a defendant in existing Technology and Construction List proceedings – principles relating to reinstatement of a corporation discussed.

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

APPEAL – leave to appeal – exercise of discretion – leave refused - leave to adduce new evidence refused - strata scheme – common property defects – scope of works – rectification costs – whether strata levy excessive - costs of appeal

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

ENVIRONMENT AND PLANNING — Consent — Conditions — Whether installation of a protective balustrade around a roof garden required — Whether area designed for use by occupants LOCAL GOVERNMENT — Legal proceedings — Judicial review — Judicial review of council decisions — Whether conditions imposed on development consent satisfy Newbury test for validity — Whether applicants denied procedural fairness

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

LAND LAW – Strata title – Strata Schemes Management Act 2015, ss 136, 139,150 – By-laws – Power to make by-laws – By-law not to be harsh, unconscionable or oppressive – Whether by-laws prohibiting the keeping of animals and/or regulating the number of animals that can be kept is harsh, unconscionable or oppressive

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

LAND LAW – Strata title - Strata Schemes Management Act 2015 ss 136, 139, 150 - By-laws – Power to make by-laws – By-law not to be harsh, unconscionable or oppressive – Whether by-law prohibiting the keeping of animals is harsh, unconscionable or oppressive – Proceedings for imposition of civil penalty – Jurisdiction of Appeal Panel in appeal against civil penalty decision

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

Appeal proceedings – costs-grounds of appeal inadequately expressed - no merit in the appeal - held defects in Notice of Appeal, lack of merit in certain appeal arguments together with disingenuous conduct of appellant’s solicitor constituted special circumstances-costs order made.

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

CIVIL PROCEDURE - parties - misnomer or misdescription - application to amend - where owners corporation intended to sue builder for alleged defects but mistakenly named the incorrect entity in summons and list statement - whether builder prejudiced from loss of viable cross-claims - where builder on notice of mistake, defects and proceedings - no delay in making application to amend - prejudice to owners corporation if leave not granted - dictates of justice favour granting leave to amend

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

COSTS – dismissal of application for leave to appeal an interlocutory decision – s 60(2) of the Civil and Administrative Tribunal Act 2013 – whether special circumstances are established

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

APPEAL – appeal from Local Court – appeal from costs – costs assessment under s 352(1) of the Legal Profession Act 2004 (NSW) – review decision – continued application of the Legal Profession Act 2004 (NSW) – costs order in Local Court – saving and transitional provisions of the Legal Profession Uniform Law Application Act – jurisdiction of Court – cost assessment and review appeal decision – whether amended summons brought out of time – application to extend time – refusal to extend time

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

APPEAL – Building and Construction – Home Building Act 1989 (NSW) – Building dispute – appellant ordered to pay compensation for defective building work – appellant denied that he was the builder – Home Owners Warranty insurance issued in the name of the appellant – appeal dismissed – no issue of principle

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

JUDICIAL REVIEW – remedies – materiality – review of appeal of costs assessment – incorrect application of repealed statute – application of the correct statute would have led to the same order – whether error jurisdictional – refusal of relief on discretionary grounds COSTS – appeal – cost assessment – costs assessment appeal – repealed Legal Profession Act 2004 (NSW) applied instead of Legal Profession Uniform Law Application Act 2014 (NSW) – effect of savings provisions – Interpretation Act 1

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

COSTS – costs’ assessment – late application to review certificate – application to Manager, Costs Assessment to extend time – whether assessment under Legal Profession Uniform Law Application Act 2015 (NSW) or Legal Profession Act 2004 (NSW) – error by Manager as to applicable law – whether error material – whether applicant demonstrated available grounds for review CIVIL PROCEDURE – application to review

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

COSTS – costs on appeal – whether costs should be ordered in favour of successful party – whether public interest litigation COSTS – costs at first instance – whether Appeal Panel has power to make a first instance costs order on appeal

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

COSTS – costs on appeal – whether costs should be ordered in favour of successful party – whether public interest litigation – significance of any change in the law COSTS – costs at first instance – whether first instance costs order should be reversed following a successful appeal

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

COSTS – transfer of proceedings to Local Court - appeal against order for costs – appeal dismissed – costs of appeal – whether costs should be ordered in fixed amount

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

APPEAL– civil – application for leave to appeal from

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

COSTS – costs on stay application in appeal – special circumstances

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

Appeal proceedings – grounds of appeal inadequately expressed – appeal from interlocutory decision requiring leave –application of guiding principle-held no merit in the appeal – leave to appeal refused – appeal dismissed – costs reserved.

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

LAND LAW – strata title – by-laws – construction – special by-law conferring right upon lot owner to use part of common property for parking – whether right conferred in substitution for right of lot owner to park in existing parking lot – use of extrinsic circumstances as an aid to construction – cautionary approach – special by-law construed so that right conferred is not in substitution for owner’s right to park in existing lot LAND LAW – strata title – obligations of owners and occupiers – w

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

COSTS – Withdrawal of strata application – Whether special circumstances warranting an award of costs are established

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

COSTS – Disentitling conduct – Offers of settlement

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

COSTS – Special circumstances – Abandonment of Grounds of Appeal

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

CIVIL PROCEDURE – notices to produce – client legal privilege – whether documents privileged under s 119 Evidence Act 1995 (NSW) – communications between plaintiff and witness where witness is also defendant in contingent proceedings – implied obligation of confidentiality where dominant purpose of communications is obtaining evidence

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

LAND LAW — Strata title — Strata management — Obligation of owners corporation to maintain and repair common property — Damages or compensation for breach of obligation — Jurisdiction to award such damages or compensation — SSMA ss 90(2), 104, 106, 122, 124, 232

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

Costs – costs on appeal – special circumstances

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

STRATA AND COMMUNITY SCHEMES — Repair of common property

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

APPEAL – costs – transfer of proceedings to Local Court – whether Tribunal erred in exercise of costs discretion

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

LAND LAW - Strata title - Owners corporation – By-laws

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

STRATA TITLE – appeal from order of Tribunal awarding damages for breach of statutory duty – whether s 232 of the Strata Schemes Management Act 2015 confers order making power on the Tribunal to order damages under s 106(5) STATUTORY INTERPRETATION – meaning of phrase “make an order to settle a complaint or dispute about any of the following” in s 232 of the Strata Schemes Management Act 2015

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

CIVIL PROCEDURE – application to re-open hearing – where plaintiff’s evidence was found to be inadequate in primary

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

COSTS – where plaintiff sought easements on various bases including by prescription, express grant and s 88K Conveyancing Act 1919 (NSW) – where orders under s 88K not required because plaintiff succeeded on prescriptive easement claim – where plaintiff failed on express grant claim – where successful prescriptive easements claim based on late amendment - whether plaintiff should pay defendants’ costs pursuant to s 88K(5) – whether departure from the usual order warranted – costs apportioned

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

Costs on appeal

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

APPEALS – Application for leave to appeal – No question of principle – Costs – Existence of special circumstances – Gross sum costs order

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

PRACTICE AND PROCEDURE – transfer of proceedings from the Civil and Administrative Tribunal to the Supreme Court of New South Wales – interlocutory decision – leave to appeal refused

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

Strata management – by-law excluding pets - refusal to amend or replace with new by-law - SSMA ss 134, 135, 136, 138, 139, 146, 147, 148, 149, 150, 153, 156, 157, 158, 159, 232; 1996 Regulation cll 35, 37, Sch 2, Sch 3.

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

BUILDING AND CONSTRUCTION-Home Building-compliance with applicable codes and standards including Building Code of Australia and Australian Standards-combustible architectural attachments to external walls of high rise building-breach of statutory warranty-materials good and suitable for purpose

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

COSTS – appeal from Consumer and Commercial Division – whether r 38 and r 38A Civil and Administrative Tribunal Rules 2014 apply – whether appropriate order is order for costs in the cause

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

Practice and procedure — Proceedings — Transfer of proceedings — Forum – application for summary dismissal or stay of proceedings – application for disclosure of details recorded on strata roll per Strata Schemes Management Act 2015 (NSW), ss 187, 188 and 232 – whether appropriate proceedings be transferred to NCAT – jurisdiction of Tribunal. LAND LAW — Strata title — Owners corporation —Strata roll – application for production from building manager of contact details of owners recorded on strat

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

APPEAL – costs

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

Costs –special circumstances established

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

COSTS – Existence of special circumstances

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

Strata Title- appeal from order of Tribunal making an award of damages under sec 106(5) of the Strata Schemes Management Act 2015- held Tribunal lacked jurisdiction and power to make an award of damages Strata Title – on appeal held Tribunal arguably may have power to make order for payment of compensation under section 232 of the Strata Schemes Management Act - Proceedings stood over with liberty to apply

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

JUDGMENTS AND ORDERS – exercise of liberty to apply to enforce earlier orders made giving effect to strata renewal plan – appointment of trustee to one lot where non-compliance by owner with requirement to execute contract of sale of lot – costs considered

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

CIVIL PROCEDURE – registrars – review of registrar’s decision – court of appeal – no issue of principle

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

COSTS - do ordinary rules apply to costs of appeal when not applicable in primary proceedings - special circumstances - appeal against non-party costs orders

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

LAND LAW – easements – creation of easements – creation by prescription – long use of land from late 1880’s and from 1981 – whether doctrine of lost modern grant applies where identity of owners of land unknown from 1880s to 2008 – held that easement by prescription could still arise – use sufficiently open that a diligent owner would have been aware of it LAND LAW – easements – creation of easements – creation under statute – applications under s 88K Conveyancing Act 1919 (NSW) – easements for

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

By-law banning all animals

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

HOME BUILDING – Time to commence proceedings – consideration of interim and final occupation certificates – collateral review.

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

By-law – construction of by-law – consent to amend by-law – damages

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

CIVIL PROCEDURE – Personal injury claim – Negligence – Strata Scheme – Failure to take reasonable care – tree felling – procedures not followed for authorisation of work – duty of care – engagement of professional contractor

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.