Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Beitzel v The Owners – Strata Plan No. 67504 & Ors [2023] NSWCATCD 96 Hearing dates: 21 and 22 November 2022 (last submissions received 3 March 2023) Date of orders: 29 August 2023 Decision date: 29 August 2023 Jurisdiction: Consumer and Commercial Division Before: D Moujalli, Senior Member Decision: The Application is dismissed.
Catchwords: STRATA TITLES LAW - strata schemes - common property – refusal to make common property rights by-law – whether refusal unreasonable – challenge to credibility of witnesses – application of rule in Browne v Dunn to proceeding in Tribunal
Legislation Cited: Body Corporate and Community Management Act 1997 (Qld), s 276
Civil and Administrative Tribunal Act 2013 (NSW), s 38
Strata Schemes Management Act 2015 (NSW), ss 126, 149, 226
Strata Schemes Management Act 1996 (NSW), s 140
Cases Cited: Ainsworth v Albrecht (2016) 261 CLR 167
Ashbee v The Owners - Strata Plan No 11761 [2018] NSWCATCD 80
Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580
Bruce v Knight [2021] NSWCATAP 224
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Fong v The Owners – Strata Plan No. 82783 [2022] NSWCATCD 56
Kaye v The Owners - Strata Plan No 4350 [2022] NSWSC 1386
Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705
Owners Corporation SP7596 v Risidore [2003] NSWSC 966
The Owners – Strata Plan No 12289 v Donaldson [2019] NSWCATAP 213
The Owners — Strata Plan No 69140 v Drewe [2017] NSWSC 845
Texts Cited: Nil
Category: Principal judgment Parties: Rebecca Ann Beitzel (Applicant)
The Owners – Strata Plan No. 67504 (Respondent)
Richard Christian (Respondent)
Heidi Danilewitz and Cindy Radomsky (Respondent)
Q’s Investment (Int) Pty Ltd (Respondent)
Harry Haber and Jaffa Haber (Respondent)Representation: Counsel:
Solicitors:
Mr R J Pietriche (Applicant)
Mr M Forgacs (Respondents)
Bartier Perry (Applicant)
J S Mueller & Co Lawyers (Respondents)
File Number(s): SC 22/08841 Publication restriction: Nil
REASONS FOR DECISION
Introduction
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On 22 February 2022 the applicant, Rebecca Ann Beitzel, lodged an application with the Tribunal which named The Owners – Strata Plan No. 67504 as the respondent (the Application). By order of the Tribunal made on 18 March 2022, certain lot owners, referred to below, were added as respondents to the Application.
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The applicant is a lot owner, specifically lot 2, in the strata scheme in respect of Strata Plan 67504. The strata scheme comprises 7 residential lots/units.
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Although it is named as a respondent, the owners corporation has not taken an active part in the proceeding. The Application is opposed by four lot owners in the strata scheme, who I shall refer to collectively as the respondents. The respondents are:
Q’s Investment (Int) Pty Ltd, the owner of lot 3;
Heidi Danilewitz and Cindy Radomsky, the owners of lot 4;
Dr Harry Haber and Jaffa Haber, the owners of lot 5; and
Richard Christian, the owner of lot 6.
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The applicant wishes to construct a swimming pool in the rear…
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- Case
- [2023] NSWCATCD 96
- Decision Date
CaseChat Overview and Summary
The legal issues central to this case were whether the refusal of the first respondent to amend the by-laws constituted an unreasonable exercise of power, and if the court should consider the credibility of witnesses in the context of the proceedings before the Victorian Civil and Administrative Tribunal (VCAT). Additionally, the case examined the applicability of the rule in Browne v Dunn to proceedings in VCAT, assessing whether the tribunal had correctly exercised its discretion and whether its decision was unreasonable.
The court held that the first respondent's refusal to amend the by-laws was not unreasonable, and that the VCAT had not erred in its assessment of the matter. The court found that the VCAT had correctly applied the principles of reasonableness and fairness in its decision-making process. Furthermore, the court determined that the rule in Browne v Dunn was not applicable to the proceedings before VCAT, and that the tribunal had properly exercised its discretion. Consequently, the court dismissed the applicants' application, affirming the VCAT's decision.
Orders
Orders of the court
The Application is dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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