Rinbac Pty Ltd v Owners Corporation Strata Plan 64972

Supreme Court of NSW|2010-06-08|Before: Brereton J

CITATION : Rinbac Pty Ltd v Owners Corporation Strata Plan 64972 [2010] NSWSC 656 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 8 June 2010 JURISDICTION : Equity Division

DECISION : No jurisdiction. Orders made by the Registrar in proceedings 5301/2009 in this Court on 26 November 2009 be set aside.

(NSW) Civil Procedure Act 2005, s 3, s 140, s 149, s 149E LEGISLATION CITED : (NSW) Crimes (Appeal and Review) Act 2001, s 52, s 53, s 54, s 55 (NSW) Strata Schemes Management Act 1996, s 47, s 51, s 200 (NSW) Uniform Civil Procedure Rules 2005, r 36.15

PARTIES : Rinbac Pty Ltd (plaintiff) Owners Corporation Strata Plan 64972 (defendant)

COUNSEL : F Corsaro SC w M Izzo (plaintiff) P Gray SC w P Koroknay (defendant)

SOLICITORS : HWL Ebsworth Lawyers (plaintiff) David Le Page Solicitor (defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

2009/291362 Rinbac Pty Ltd v Owners Corporation Strata Plan 64972 JUDGMENT (ex tempore)

1 HIS HONOUR: On 1 April 2009, a member of the Consumer Trader and Tenancy Tribunal made an order dismissing an appeal brought by Rinbac Pty Limited against the Owners Corporation Strata Plan 64972 from orders made by a Strata Schemes Adjudicator on 23 September 2008 refusing to restrain the registration of an amendment to by-laws which Rinbac alleged involved the repeal of an exclusive use by-law without its consent, or alternatively, fraud on the minority. Rinbac's contentions failed both before the Strata Schemes Adjudicator and on appeal before the Consumer Trader and Tenancy Tribunal.

2 By (NSW) Strata Schemes Management Act 1996, s 200, an appeal lies to the District Court against an order of the Consumer Trader and Tenancy Tribunal. By subsection (2): An appeal lies in the same cases and in the same way as it would lie under Part 5 of the Crimes (Local Courts Appeal and Review) Act 2001 if the order were a determination a local court made, at the time the order took effect, in the exercise of summary jurisdiction on a court attendance notice.

3 These provisions are not without their curiosity. Plainly, s 200 provides for an appeal to the District Court. In the (NSW) Crimes (Appeal and Review) Act 2001, as the former (NSW) Crimes (Local Courts Appeal and Review) Act 2001 is now entitled, it is Part 3 that deals with District Court appeals whereas Part 5 deals with appeals by right, or by leave in certain circumstances, to the Supreme Court. Nonetheless, I think s 200(2) must, in the circumstances, be construed as if it read "An appeal lies to the District Court in the same cases and in the same way as it would lie to the Supreme Court under Part 5 of the Crime (Appeals and Review) Act." 4 Part 5 of the Crimes (Appeal and Review) Act 2001 relevantly provides as follows: 52 Appeals as of right

(2) An appeal must be made within such period after the date of the conviction or sentence as may be prescribed by rules of court.

(1) Any person who has been convicted or sentenced by the Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence on a ground that involves: (a) a question of fact, or (b) a question of mixed law and fact, but only by leave of the Supreme Court. (2) Any person who has been convicted or sentenced by the Local Court with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court. (3) Any person against whom: (a) an order has been made by a Magistrate in relation to the person in any committal proceedings, or (b) an interlocutory order has been made by the Local Court in relation to the person in summary proceedings, may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court. (4) An application for leave to appeal must be made within such period after the date of the conviction, sentence or order as may be prescribed by rules of court.

54 Determination of applications for leave to appeal (1) The Supreme Court may determine an application for leave to appeal by dismissing the application or by granting leave to appeal.

(2) Leave to appeal must not be granted in relation to an application with respect to an environmental offence unless the Supreme Court is satisfied that the appeal is likely to require the resolution of a matter relating to constitutional law or a matter of general application.

(3) If the Supreme Court dismisses an application for leave to appeal, it may make such order as to the costs to be paid by the appellant as it thinks just.

(4) If the Supreme Court grants leave to appeal, it may proceed to hear the appeal immediately or it may adjourn the appeal proceedings.

(1) The Supreme Court may determine an appeal against conviction: (a) by setting aside the conviction, or (b) by setting aside the conviction and remitting the matter to the Local Court sitting at the place at which the original Local Court proceedings were held for redetermination in accordance with the Supreme Court's directions, or (c) by dismissing the appeal. (2) The Supreme Court may determine an appeal against sentence: (a) by setting aside the sentence, or (b) by varying the sentence, or (c) by setting aside the sentence and remitting the matter to the Local Court sitting at the place at which the original Local Court proceedings were held for redetermination, in relation to sentence, in accordance with the Supreme Court's directions, or (d) by dismissing the appeal. (3) The Supreme Court may determine an appeal against an order referred to in section 53 (3) (a) or (b): (a) by setting aside the order and making such other order as it thinks just, or (b) by dismissing the appeal.

5 On 3 July 2009, Rinbac filed in the District Court, a summons seeking leave to appeal from the decision of the Consumer Trade and Tenancy Tribunal (District Court proceedings 2918/2009). Leave to appeal was sought because the appeal was filed one day out of time. That came about, it would seem, because of an erroneous view adopted in the District Court registry, when an attempt was made to file the appeal within time, and it seems that an extension of time would have been uncontroversial.

6 The appeal raises important questions of general application concerning the operation of Strata Schemes Management Act, s 51, in relation to exclusive use by-laws, and also in respect of the doctrine of fraud on the minority in that context. In particular, the Court hearing the appeal will be required to consider the scope of the concepts of a right of exclusive use and enjoyment of the whole or any specified part of the "common property", and "special privileges in respect of the whole or any specified part of the common property", referred to in s 51 of that Act, and also whether a by-law of the kind envisaged by s 47 of the Act can also be a by-law to which Division 4 of the Act applies. The researches of the lawyers on both sides reveal no determination of the Supreme Court on those matters. Both parties agree that the novelty and importance of the issues is such that it would be appropriate that they be determined by a judge of the Supreme Court.

7 With that in mind, on 12 November 2009, Rinbac filed in the present proceedings (originally 5301/2009, now renumbered 2009/291362), a summons claiming an order removing the proceedings into the Supreme Court pursuant to (NSW) Civil Procedure Act 2005, s 140, which provides as follows: 140 Transfer of proceedings to higher court (cf Act No 9 1973, section 145; Act No 11 1970, section 21B) (1) The Supreme Court may, of its own motion or on application by a party to proceedings before the District Court or the Local Court, order that the proceedings, including any cross-claim in the proceedings, be transferred to the Supreme Court. (2) The District Court may, of its own motion or on application by a party to proceedings before the Local Court, order that the proceedings, including any cross-claim in the proceedings, be transferred to the District Court. (3) Proceedings in the District Court on a claim for damages arising from personal injury or death are not to be transferred to the Supreme Court under this section unless the Supreme Court is satisfied: (a) in the case of a motor accident claim or a workplace injury damages claim: (i) that the amount to be awarded to the plaintiff, if successful, is likely to be more than $1,000,000, and (ii) that the case involves complex legal issues or issues of general public importance, or (b) in any other case: (i) that the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit of the District Court, or (ii) that there is other sufficient reason for hearing the proceedings in the Supreme Court. (4) Proceedings in the Local Court are not to be transferred to a higher court under this section unless the higher court is satisfied that there is sufficient reason for hearing the proceedings in the higher court. (5) This section extends to proceedings that have been transferred to the District Court or the Local Court pursuant to a previous transfer order under this Division or under Division 2 or 3.

8 Both parties being of like mind in that respect, the relief sought in that summons was consented to, and accordingly, on 26 November when the summons returned before the Court, the Registrar, by consent, made the following order: That appeal proceedings between the parties numbered 2918/2009 in the District Court at Sydney be transferred to the Supreme Court pursuant to s 140 of the Civil Procedure Act 2005 (NSW).

9 In addition, leave was granted to the Owners Corporation to file a notice of contention, and the proceedings were adjourned for further directions. 10 It is that matter that has come before me for hearing, by that route, today. Regrettably, I have come to the conclusion that this Court does not have jurisdiction to entertain the removed appeal, and that it will be necessary for the matter to return to the District Court. I have reached that conclusion substantially for the following reasons:

11 The purpose of Civil Procedure Act, s 140, is to permit the removal from a lower court to a higher court of proceedings in the lower court where there is good reason to do so. Typically, that has been where there has been a risk that a jurisdictional limit affecting the lower court would be exceeded, where there are complex and important issues, and where the proceedings involve allegations of significant notoriety or public importance. But there is nothing in or about s 140 which confers on a transferee court additional jurisdiction that it does not otherwise have. This is to be distinguished, for example, from s 149 (which, in the case of a transfer from a higher court to a lower court, gives the lower court all the relevant jurisdiction of the higher court), and similarly, s 149E (which in the case of transfer of proceedings between the Supreme Court and the Land and Environment Court, gives the transferee court all the jurisdiction of the transferor court). But as I have said, there is nothing in connection with transfers from a lower court to a higher court that gives the higher court jurisdiction that it did not otherwise have. 12 The jurisdiction to entertain an appeal under s 200 of the Strata Schemes Management Act is plainly given to the District Court and only to the District Court. It is a statutory right of appeal, defined by the terms of the statute that creates it. In my view, the Supreme Court cannot give itself jurisdiction to hear such an appeal by removing the proceeding from the District Court into the Supreme Court. 13 There is another reason for reaching the same conclusion. As appears from the above, the appeal given by Strata Schemes Management Act, s 200, lies "in the same cases and in the same way as it would lie under Part 5 of the Crimes (Local Courts Appeal and Review) Act." An appeal under Part 5 of the Crimes (Local Courts Appeal and Review) Act is a "criminal proceeding" within s 3 of the Civil Procedure Act and is not subject to Civil Procedure Act, s 140. On the same reasoning, an appeal under s 200 of the Strata Schemes Management Act would not be amenable to removal under Civil Procedure Act, s 140, any more than would be a criminal appeal to the District Court. 14 For those reasons, it seems to me that s 140 was not available in this case, and that if, theoretically, it were available, nonetheless its exercise would not have given this Court the jurisdiction given only to the District Court under Strata Schemes Management Act, s 200.

15 It follows that the order made by the Registrar - albeit by consent - was made irregularly. It was not an order that this Court could make. In those circumstances, it may be set aside, pursuant to (NSW) Uniform Civil Procedure Rules 2005, r 36.15(1). 16 The consequence of that will be that there will then be no order removing the proceedings from the District Court. But for more abundant caution, I will make procedural directions to ensure that the matter is returned to the District Court; and while it will be a matter for the District Court, request that in light of the circumstances the matter be given such expedition there as the Court is able to give it.

17 My orders are: (1) Pursuant to Uniform Civil Procedure Rules r 36.15, I order that the orders made by the Registrar in proceedings 5301/2009 in this Court on 26 November 2009 be set aside.

(2) Direct that the proceedings be returned to the District Court;

(3) Request that the District Court give such expedition to the further conduct of these proceedings as it is able to afford them.

(4) Note that in view of this outcome, the parties have agreed to proceed on the basis that the costs of the proceedings in the Supreme Court will be treated as costs of the proceedings in the District Court. **********

18/06/2010 - Correction to file number - Paragraph(s) Cover sheet

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