Beitzel v The Owners Strata Plan No. 67504 - [2023] NSWCATCD 96

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:
Mr R J Pietriche (Applicant)
Mr M Forgacs (Respondents)
Solicitors:
Bartier Perry (Applicant)
J S Mueller & Co Lawyers (Respondents)

File Number(s): SC 22/08841
Publication restriction: Nil

REASONS FOR DECISION

Introduction

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.
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.
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.

The applicant wishes to construct a swimming pool in the rear…

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: [2023] NSWCATCD 96
Decision Date: 29 August 2023

CaseChat Overview and Summary

In the case of Beitzel v The Owners Strata Plan No. 67504, the dispute before the court involved the applicant's challenge to the refusal of the first respondent to amend the by-laws to recognise certain common property rights. The applicants sought to compel the first respondent to make specific by-laws regarding the rights of common property owners within the strata scheme, particularly those owning parking spaces and those with rights to store items in the common areas.

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

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:	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: Mr R J Pietriche (Applicant) Mr M Forgacs (Respondents) Solicitors: Bartier Perry (Applicant) J S Mueller & Co Lawyers (Respondents)
File Number(s):	SC 22/08841
Publication restriction:	Nil