Australia, June 18 -- New South Wales Land and Environment Court issued text of the following judgement on May 19:

1. This appeal is a continuation of an ongoing dispute between The Owners - Strata Plan No SP12299 (the Owners Corporation (OC)) and the owner of Lot 6 in SP12299, Stephen Mackay (Mr Mackay).

2. That dispute centres around a pool and a patio/sunroom area built on Mr Mackay's lot property prior to its purchase.

3. For the reasons which follow, we have decided that the matter should be remitted to the Consumer and Commercial Division (CCD) of the NSW Civil and Administrative Tribunal (NCAT) for redetermination on the basis that the Tribunal erred on a question of law by failing to accord procedural fairness to the parties in two main respects. We consider that these errors were sufficiently influential over the decision to affect the ultimate orders and to justify the matter being remitted for rehearing on all issues in dispute between the parties.

Proceeding at first instance

The OC's application

4. In its Strata and Community Schemes application to the CCD lodged on 6 October 2023, the OC sought emergency access orders under s 124 of the Strata Schemes Management Act 2015 (NSW) (the SSMA) to enable a firm of builders to undertake any works required to address the issues identified in their report.

5. Interim orders were made on 27 October 2023 to the effect that Mr Mackay was to give access for the purpose of the OC or its contractor conducting an inspection.

6. The other order which the OC sought was

Enforcement of SP12299 Special By-law #5 to decommission lot 6 inground pool and associated reticulation leaking into common property and pooling in the fire egress stairwell until the builder (MCM Main On Construction and Maintenance) sign off on the identified risks to the common property sufficient to facilitate close out with the Strata Insurance Providers.

The hearing

7. The Tribunal at first instance (the Tribunal) heard the proceedings over two half-days on 19 April and 28 May 2024. There was no lay or expert evidence given from the witness box during the hearing and the OC's representative (Mr Keyes, Chair of the Strata Committee) and Mr Mackay made oral submissions in respect of the issues in dispute. *Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196d7862ea742ac5512fe24b)

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