Ashbee v The Owners - Strata Plan No 11761 - [2018] NSWCATCD 80

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Ashbee v The Owners - Strata Plan No 11761 [2018] NSWCATCD 80
Hearing dates: 11 September 2018
Date of orders: 04 December 2018
Decision date: 04 December 2018
Jurisdiction: Consumer and Commercial Division
Before: P Boyce, Senior Member
Decision:
(1) Pursuant to s 127 of the Strata Schemes Management Act 2015 declares that the applicant, Kimberley-Ann Ashton Ashbee’s, proposed air-conditioning installation for Lot 141 Strata Plan 11761 is a minor renovation for the purposes of s 110 of the Act;

(2) Pursuant to s 126(1) of the Strata Schemes Management Act 2015 orders that on or before 22 December 2018, The Owners - Strata Plan No 11761 consent to the air-conditioning installation for Lot 141 work proposed by the applicant, Kimberley-Ann Ashton Ashbee, in her terms of motion put to the general meeting of the owners corporation on 16 November 2017, including the minor renovations to the common property directly affecting the owner’s Lot 141 on the terms set out in the explanatory note prepared by the applicant.

(3) Pursuant to s 126(5) of the Strata Schemes Management Act 2015 orders that the applicant, Kimberley-Ann Ashton Ashbee, is to be responsible for the ongoing repair and maintenance of the additional property arising from the minor renovation approved under these orders.

Catchwords: LAND LAW-strata scheme-declaration of minor alterations-minor alterations unreasonably refused by owners corporation- order that owners corporation approve the works
Legislation Cited: Strata Schemes Management Act 2015 (NSW)
Strata Schemes Management Regulation 2016 (NSW)
Cases Cited: Curragh Coal Sales Co Pty Ltd v Wilcox (1984) FCR 46
Category: Principal judgment
Parties: Kimberley-Ann Ashton Ashbee (Applicant)
The Owners - Strata Plan No 11761 (Respondent)
Representation:
Solicitors:
Spiers Ryan (Applicant)
Kerin Benson Lawyers (Respondent)
Counsel:
A Blank (Applicant)
A Benson-Solicitor (Respondent)

File Number(s): SC18/09525
Publication restriction: Unrestricted

REASONS FOR DECISION

Application

This is an application filed with the Tribunal on 22 February 2018 by a lot owner in a strata scheme for an order pursuant to section 126 and 127 of the Strata Schemes Management Act 2015 (NSW) (“SSMA”) for orders to consent to the applicant’s proposed air-conditioning installation, unreasonably refused by the respondent and a declaration that the proposed air-conditioning installation is a “minor renovation” under s 110 of the SSMA and reg 28(d) of the Strata Schemes Management Regulation 2016 (NSW) (SSMR).
The applicant is the registered proprietor of Lot 141 in Strata Plan 14189.
The respondent is The Owners, Strata Plan No 14189.
The strata scheme of Strata Plan 14189 comprises thirty lots and is located at Willoughby New South Wales. Strata Plan 14189 is part of a larger strata

Legislation and jurisdiction

Section 126 of the SSMA provides that the Tribunal may make an order relating to alterations to common property, with the relevant provisions as follows:

126 Orders relating to alterations and repairs to common property and other property
(1) Order requiring owners corporation to carry out work on common property
The Tribunal may,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWCATCD 80
Decision Date: 04 December 2018

CaseChat Overview and Summary

In the matter of Ashbee v The Owners - Strata Plan No 11761, the respondent, The Owners - Strata Plan No 11761, contested the applicant's proposed installation of an air-conditioning unit on Lot 141 of the strata plan. The dispute reached the tribunal under the Strata Schemes Management Act 2015, where the applicant sought a declaration that the proposed works constituted a minor renovation and sought an order for the owners corporation to approve the proposed works.

The central legal issues before the tribunal were whether the proposed air-conditioning installation constituted a minor renovation under s 110 of the Act, and if the owners corporation's refusal to consent to the works was unreasonable. The tribunal had to determine the nature of the proposed works and assess the reasonableness of the owners corporation's refusal to consent.

The tribunal found that the proposed air-conditioning installation was indeed a minor renovation as defined by the Act, and the owners corporation's refusal to consent was unreasonable. The tribunal relied on the applicant's explanatory note, which detailed the proposed works and their minimal impact on the common property. The tribunal also considered the lack of any valid reasons provided by the owners corporation for their refusal to consent. The tribunal concluded that the proposed works were of a minor nature and did not warrant the owners corporation's refusal to consent.

Consequently, the tribunal ordered the owners corporation to consent to the proposed air-conditioning installation, including the minor renovations to the common property, on the terms set out in the applicant's explanatory note. The tribunal also ordered that the applicant would be responsible for the ongoing repair and maintenance of the additional property arising from the approved minor renovation.

Orders

Orders of the court

(1) Pursuant to s 127 of the Strata Schemes Management Act 2015 declares that the applicant, Kimberley-Ann Ashton Ashbee’s, proposed air-conditioning installation for Lot 141 Strata Plan 11761 is a minor renovation for the purposes of s 110 of the Act;

(2) Pursuant to s 126(1) of the Strata Schemes Management Act 2015 orders that on or before 22 December 2018, The Owners - Strata Plan No 11761 consent to the air-conditioning installation for Lot 141 work proposed by the applicant, Kimberley-Ann Ashton Ashbee, in her terms of motion put to the general meeting of the owners corporation on 16 November 2017, including the minor renovations to the common property directly affecting the owner’s Lot 141 on the terms set out in the explanatory note prepared by the applicant.

(3) Pursuant to s 126(5) of the Strata Schemes Management Act 2015 orders that the applicant, Kimberley-Ann Ashton Ashbee, is to be responsible for the ongoing repair and maintenance of the additional property arising from the minor renovation approved under these orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Ashbee v The Owners - Strata Plan No 11761 [2018] NSWCATCD 80
Hearing dates:	11 September 2018
Date of orders:	04 December 2018
Decision date:	04 December 2018
Jurisdiction:	Consumer and Commercial Division
Before:	P Boyce, Senior Member
Decision:	(1) Pursuant to s 127 of the Strata Schemes Management Act 2015 declares that the applicant, Kimberley-Ann Ashton Ashbee’s, proposed air-conditioning installation for Lot 141 Strata Plan 11761 is a minor renovation for the purposes of s 110 of the Act; (2) Pursuant to s 126(1) of the Strata Schemes Management Act 2015 orders that on or before 22 December 2018, The Owners - Strata Plan No 11761 consent to the air-conditioning installation for Lot 141 work proposed by the applicant, Kimberley-Ann Ashton Ashbee, in her terms of motion put to the general meeting of the owners corporation on 16 November 2017, including the minor renovations to the common property directly affecting the owner’s Lot 141 on the terms set out in the explanatory note prepared by the applicant. (3) Pursuant to s 126(5) of the Strata Schemes Management Act 2015 orders that the applicant, Kimberley-Ann Ashton Ashbee, is to be responsible for the ongoing repair and maintenance of the additional property arising from the minor renovation approved under these orders.
Catchwords:	LAND LAW-strata scheme-declaration of minor alterations-minor alterations unreasonably refused by owners corporation- order that owners corporation approve the works
Legislation Cited:	Strata Schemes Management Act 2015 (NSW) Strata Schemes Management Regulation 2016 (NSW)
Cases Cited:	Curragh Coal Sales Co Pty Ltd v Wilcox (1984) FCR 46
Category:	Principal judgment
Parties:	Kimberley-Ann Ashton Ashbee (Applicant) The Owners - Strata Plan No 11761 (Respondent)
Representation:	Solicitors: Spiers Ryan (Applicant) Kerin Benson Lawyers (Respondent) Counsel: A Blank (Applicant) A Benson-Solicitor (Respondent)
File Number(s):	SC18/09525
Publication restriction:	Unrestricted