Colbert v MacDonald & Ors

Judgment

1. These proceedings for judicial review arise from a dispute among lot owners in an apartment building in Darling Point as to whether one of them should be permitted to build a balcony onto his unit.
2. The plaintiff invokes this Court's supervisory jurisdiction, regulated by s 69 of the Supreme Court Act 1970 (NSW), in respect of a decision made on 28 October 2015 by the third defendant in his capacity as a Strata Schemes Adjudicator and Registrar of the Civil and Administrative Tribunal of NSW ("NCAT"). The plaintiff claims, inter alia, declaratory relief as well as relief in the nature of certiorari quashing the determination.
3. The claim for relief is based on an assertion that the plaintiff was denied procedural fairness by reason of the fact that neither the second nor third defendant provided him with any notice of the relevant application. This denied him the opportunity to oppose the application. The first defendant was the applicant in the proceedings before the third defendant.
4. In the course of the hearing, the plaintiff relied upon a second ground of review not previously pleaded in the summons nor included in written submissions. That ground was that the third defendant relied upon a wrong power in purporting to make the decision that he did and thus fell into jurisdictional error.
5. At the hearing before me, Mr Lazarus of counsel appeared with Mr Sheldon for the plaintiff. The second defendant ("the Owners Corporation") and the third defendant ("the Adjudicator) both filed submitting appearances save as for costs. This left the first defendant, who appeared in person, as the only contradictor in the proceedings.