Bate v Owners SP 60549 - [2018] NSWCATCD 36

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Bate v The Owners-Strata Plan No SP 60549 and Anor; Birdsall v Bate [2018] NSWCATCD 36
Hearing dates: 14 March 2018
Date of orders: 03 August 2018
Decision date: 03 August 2018
Jurisdiction: Consumer and Commercial Division
Before: G.J. Sarginson, Senior Member
Decision:
In Matter SC 17/42189
(1) The application for an order invalidating a resolution passed at a general meeting on 22 August 2017 under s 24 of the Strata Schemes Management Act 2015 is dismissed.
(2) The application for an order appointing a compulsory strata manager under s 237 of the Strata Schemes Management Act 2015 is dismissed.
(3) The application for an order that the owners corporation be directed to consent to existing or proposed alterations to common property under s 126 of the Strata Schemes Management Act 2015 is dismissed.
(4) On or before 6 weeks from the date of this decision, the owners corporation in respect of The Owners-Strata Plan No 60549 is directed to convene a general meeting to consider Motions that:
(i) the owners corporation consent to the installation of the awnings on Lot 3; and
(ii) an exclusive use by-law be passed in respect of the awnings.
(5) The owner of Lot 3 is to provide to the owners corporation, in accordance with the relevant provisions of the Strata Schemes Management Act 2015 and the Strata Schemes Management Regulation 2016 a copy of a proposed exclusive use by-law prior to the general meeting.

In Matter SC 18/00627
(1) The application for an order under s 232 of the Strata Schemes Management Act 2015 that the owner of Lot 3 remove awnings and restore common property is dismissed.
In Matters SC 17/42189 and SC 18/00627
(1) The Tribunal notes that, subject to the outcome of the general meeting regarding approval of the awnings and the passing of an exclusive use by-law any party to these proceedings, or any other interested person within the meaning of the Strata Schemes Management Act 2015 may make a further application to the Tribunal.
Catchwords: STRATA SCHEMES – Resolution of disputes – Alteration to common property – Whether orders should be made to restore common property – Functioning of owners corporation – Whether order should be made for compulsory appointment of strata manager – Scope of appropriate orders
Legislation Cited: Strata Schemes Management Act 2015
Strata Schemes Management Act 1996
Cases Cited: Bischoff & Ors v Sahade & Ors [2015] NSWCATAP 135
Category: Principal judgment
Parties:
In Matter SC 17/42189
Applicant: Cheryl Bate
First Respondent: The Owners-Strata Plan No 60549
Second Respondent: Mr Peter Birdsall and Ms Kerrie Birdsall
In Matter SC 18/00627
Applicant: Mr Peter Birdsall and Ms Kerrie Birdsall
Respondent: Ms Cheryl Bate
Representation:
In Matter SC 17/42189
Applicant: In person
First Respondent: Mr G. Myers, strata manager.
Second Respondent (Mr and Ms Birdsall): In person.
In Matter SC 18/00627
Applicant: In person
Respondent: In person

File Number(s): SC 17/42189; SC 18/00627
Publication restriction: Nil

REASONS…

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 36
Decision Date: 03 August 2018

CaseChat Overview and Summary

In the case of Bate v Owners SP 60549, the applicants sought various orders to address disputes concerning alterations to common property within a strata scheme in Sydney. The applicants, represented by Ms. Bate, sought to invalidate a resolution passed by the owners corporation, compel the appointment of a strata manager, and direct the owners corporation to consent to alterations to common property, specifically the installation of awnings on Lot 3. The applicants also sought an order for the removal of the awnings and restoration of the common property. The respondents, the owners corporation and the owner of Lot 3, opposed these applications.

The legal issues before the court included the validity of a resolution passed by the owners corporation, the appropriateness of appointing a compulsory strata manager, the authority of the owners corporation to consent to alterations of common property, and the power of the court to order the removal of alterations to common property. The court had to balance the rights of individual lot owners with the collective rights of the owners corporation and the need to maintain the integrity of the strata scheme.

The court found that the resolution passed by the owners corporation was valid and dismissed the application to invalidate it. The court considered that the owners corporation had the authority to consent to the installation of awnings on Lot 3 and that the proposed exclusive use by-law would provide a suitable framework for managing the awnings. The court also found that the appointment of a compulsory strata manager was not warranted as the owners corporation was functioning adequately. Finally, the court dismissed the application for an order to remove the awnings and restore the common property, but directed the owners corporation to convene a general meeting to consider approving the awnings and passing an exclusive use by-law.

The orders made by the court required the owners corporation to convene a general meeting to consider motions for the approval of the awnings and the passing of an exclusive use by-law. The owner of Lot 3 was directed to provide a copy of the proposed exclusive use by-law to the owners corporation before the meeting. The court also noted that any party to the proceedings or other interested persons could make a further application if the outcome of the general meeting did not resolve the dispute.

Orders

Orders of the court

In Matter SC 17/42189

(1) The application for an order invalidating a resolution passed at a general meeting on 22 August 2017 under s 24 of the Strata Schemes Management Act 2015 is dismissed.

(2) The application for an order appointing a compulsory strata manager under s 237 of the Strata Schemes Management Act 2015 is dismissed.

(3) The application for an order that the owners corporation be directed to consent to existing or proposed alterations to common property under s 126 of the Strata Schemes Management Act 2015 is dismissed.

(4) On or before 6 weeks from the date of this decision, the owners corporation in respect of The Owners-Strata Plan No 60549 is directed to convene a general meeting to consider Motions that:

(i) the owners corporation consent to the installation of the awnings on Lot 3; and

(ii) an exclusive use by-law be passed in respect of the awnings.

(5) The owner of Lot 3 is to provide to the owners corporation, in accordance with the relevant provisions of the Strata Schemes Management Act 2015 and the Strata Schemes Management Regulation 2016 a copy of a proposed exclusive use by-law prior to the general meeting.

In Matter SC 18/00627

(1) The application for an order under s 232 of the Strata Schemes Management Act 2015 that the owner of Lot 3 remove awnings and restore common property is dismissed.

In Matters SC 17/42189 and SC 18/00627

(1) The Tribunal notes that, subject to the outcome of the general meeting regarding approval of the awnings and the passing of an exclusive use by-law any party to these proceedings, or any other interested person within the meaning of the Strata Schemes Management Act 2015 may make a further application to the Tribunal.

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:	Bate v The Owners-Strata Plan No SP 60549 and Anor; Birdsall v Bate [2018] NSWCATCD 36
Hearing dates:	14 March 2018
Date of orders:	03 August 2018
Decision date:	03 August 2018
Jurisdiction:	Consumer and Commercial Division
Before:	G.J. Sarginson, Senior Member
Decision:	In Matter SC 17/42189 (1) The application for an order invalidating a resolution passed at a general meeting on 22 August 2017 under s 24 of the Strata Schemes Management Act 2015 is dismissed. (2) The application for an order appointing a compulsory strata manager under s 237 of the Strata Schemes Management Act 2015 is dismissed. (3) The application for an order that the owners corporation be directed to consent to existing or proposed alterations to common property under s 126 of the Strata Schemes Management Act 2015 is dismissed. (4) On or before 6 weeks from the date of this decision, the owners corporation in respect of The Owners-Strata Plan No 60549 is directed to convene a general meeting to consider Motions that: (i) the owners corporation consent to the installation of the awnings on Lot 3; and (ii) an exclusive use by-law be passed in respect of the awnings. (5) The owner of Lot 3 is to provide to the owners corporation, in accordance with the relevant provisions of the Strata Schemes Management Act 2015 and the Strata Schemes Management Regulation 2016 a copy of a proposed exclusive use by-law prior to the general meeting. In Matter SC 18/00627 (1) The application for an order under s 232 of the Strata Schemes Management Act 2015 that the owner of Lot 3 remove awnings and restore common property is dismissed. In Matters SC 17/42189 and SC 18/00627 (1) The Tribunal notes that, subject to the outcome of the general meeting regarding approval of the awnings and the passing of an exclusive use by-law any party to these proceedings, or any other interested person within the meaning of the Strata Schemes Management Act 2015 may make a further application to the Tribunal.
Catchwords:	STRATA SCHEMES – Resolution of disputes – Alteration to common property – Whether orders should be made to restore common property – Functioning of owners corporation – Whether order should be made for compulsory appointment of strata manager – Scope of appropriate orders
Legislation Cited:	Strata Schemes Management Act 2015 Strata Schemes Management Act 1996
Cases Cited:	Bischoff & Ors v Sahade & Ors [2015] NSWCATAP 135
Category:	Principal judgment
Parties:	In Matter SC 17/42189 Applicant: Cheryl Bate First Respondent: The Owners-Strata Plan No 60549 Second Respondent: Mr Peter Birdsall and Ms Kerrie Birdsall In Matter SC 18/00627 Applicant: Mr Peter Birdsall and Ms Kerrie Birdsall Respondent: Ms Cheryl Bate
Representation:	In Matter SC 17/42189 Applicant: In person First Respondent: Mr G. Myers, strata manager. Second Respondent (Mr and Ms Birdsall): In person. In Matter SC 18/00627 Applicant: In person Respondent: In person
File Number(s):	SC 17/42189; SC 18/00627
Publication restriction:	Nil