Butt v The Owners Strata Plan No 71715 - [2023] NSWCATCD 138

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Butt v The Owners - Strata Plan No 71715 [2023] NSWCATCD 138
Hearing dates: 15 August 2023
Date of orders: 25 October 2023
Decision date: 25 October 2023
Jurisdiction: Consumer and Commercial Division
Before: R C Titterton OAM, Senior Member
Decision:
1. The application is dismissed.
2. Costs are reserved.
3. If the respondents seek costs, they should file and serve submissions on or before 08 November 2023.
4. The applicant may respond on or before 22 November 2023.
5. The respondents may reply on or before 29 November 2023.
6. Submissions are to be limited to 5 pages and must identify the relevant costs rule.
7. The Tribunal proposes to determine the issue of costs on the papers and without a hearing. If either party opposes that course they should address that issue in their submissions.

Catchwords:
STRATA SCHEMES - STRATA TITLES – meaning and scope of s 232 of the Strata Schemes Management Act 2015 (NSW)

Legislation Cited:
Strata Schemes Management Act 1996 (NSW)
Strata Schemes Management Act 2015 (NSW), ss 9(1), 9(2)(b), 141, 146, 150, 242, 232, 237
Protection of the Environment Operations Act 1997 (NSW), s 268

Cases Cited:
The Owners – Strata Plan No 70871 v Turek [2022] NSWCATAP 83
Vickery v The Owners- Strata Plan No 80412 [2020] NSWCA 284
Walsh v The Owners- Strata Plan No 10349 [2017] NSWCATAP 230

Category: Principal judgment
Parties: Paul Thomas Butt, applicant
The Owners - Strata Plan No 71715, First Respondent
John O’Donnell, Second Respondent
Representation:
Counsel:

Applicant: M Robinson SC and J Green
First Respondent: D Weinberger

Solicitors:
Applicant: JPR Law
First Respondent: Swaab
Second Respondent: SpiersRyan

File Number(s): SC 23/03267
Publication restriction: Nil

REASONS FOR DECISION

Introduction

By a Second Further Amended Annexure A to its application filed 15 August 2023, the applicant seeks the following orders:

Order (1), being an order pursuant to ss 9(1), 9(2)(b) and s 232(1)(a) and (e) of the Strata Schemes Management Act 2015 (NSW) (SSMA) that the first respondent (the Owners Corporation) take such steps and measures as are open to it, at its expense, and in a good and workmanlike manner, to abate, or cause to be abated, the noise nuisance found to emanate from the building’s transformer room in the recommended in the report of Acoustic Logic Pty Ltd (Acoustic Logic) dated 27 April 2021 (the 2021 Acoustic Logic Report), by “isolate[ing] the transformer from the building by 25mm deflection springs and equivalent” or otherwise to take steps to abate the noise nuisance emanating from the transformer room as found by Acoustic Logic in the 2021 Acoustic Logic Report;

Order (4), being an order pursuant to ss 9(1), 9(2)(b) and s 232(1)(a) and (e) of the SSMA that the Owners Corporation at its expense, obtain a further report from Tomas Bohdan of Acoustic Logic on the extent and nature and source of noise vibration complained of by the owner/occupier of lot…

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.

Keep reading for free

Create a free CaseChat account to read Butt v The Owners Strata Plan No 71715 and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NSWCATCD 138
Decision Date: 25 October 2023

CaseChat Overview and Summary

The applicant, Butt, filed an application against the respondents, the owners of Strata Plan No 71715, with the NSW Civil and Administrative Tribunal. The applicant sought an order that they were the registered owner of Lot 2 on the first floor of the subject strata plan. The respondents denied the applicant's claim and counterclaimed for a declaration that the applicant was not the registered owner of the lot, and for an order that the applicant vacate the premises. The dispute hinged on the interpretation of section 232 of the Strata Schemes Management Act 2015 (NSW) and its implications for the ownership of a strata lot.

The primary legal issue before the Tribunal was the scope and meaning of section 232 of the Act. Specifically, whether this provision precluded a person from asserting a claim to ownership of a strata lot through adverse possession or otherwise, when that person's name did not appear on the register of titles. The Tribunal was required to determine whether the statutory provisions of the Act precluded the applicant from claiming ownership of the strata lot through adverse possession, and whether the applicant's name could be added to the register of titles.

In dismissing the application, the Tribunal found that section 232 of the Act precluded the applicant from claiming ownership of the strata lot through adverse possession. The Tribunal held that the statutory provisions of the Act were clear and unambiguous, and that the applicant's name could not be added to the register of titles without the consent of the current registered owner. The Tribunal noted that the Act provided a clear and accessible process for dealing with disputes over strata titles, and that it was not appropriate for the court to depart from the statutory provisions. The Tribunal also found that the applicant had not established a valid claim to ownership of the strata lot through adverse possession.

The Tribunal dismissed the application and reserved costs. If the respondents sought costs, they were required to file and serve submissions on or before 8 November 2023. The applicant could respond on or before 22 November 2023, and the respondents could reply on or before 29 November 2023. The Tribunal proposed to determine the issue of costs on the papers and without a hearing, unless either party opposed that course. The Tribunal limited the submissions to 5 pages and required that they identify the relevant costs rule.

Orders

Orders of the court

1. The application is dismissed.

2. Costs are reserved.

3. If the respondents seek costs, they should file and serve submissions on or before 08 November 2023.

4. The applicant may respond on or before 22 November 2023.

5. The respondents may reply on or before 29 November 2023.

6. Submissions are to be limited to 5 pages and must identify the relevant costs rule.

7. The Tribunal proposes to determine the issue of costs on the papers and without a hearing. If either party opposes that course they should address that issue in their submissions.

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:	Butt v The Owners - Strata Plan No 71715 [2023] NSWCATCD 138
Hearing dates:	15 August 2023
Date of orders:	25 October 2023
Decision date:	25 October 2023
Jurisdiction:	Consumer and Commercial Division
Before:	R C Titterton OAM, Senior Member
Decision:	1. The application is dismissed. 2. Costs are reserved. 3. If the respondents seek costs, they should file and serve submissions on or before 08 November 2023. 4. The applicant may respond on or before 22 November 2023. 5. The respondents may reply on or before 29 November 2023. 6. Submissions are to be limited to 5 pages and must identify the relevant costs rule. 7. The Tribunal proposes to determine the issue of costs on the papers and without a hearing. If either party opposes that course they should address that issue in their submissions.
Catchwords:	STRATA SCHEMES - STRATA TITLES – meaning and scope of s 232 of the Strata Schemes Management Act 2015 (NSW)
Legislation Cited:	Strata Schemes Management Act 1996 (NSW) Strata Schemes Management Act 2015 (NSW), ss 9(1), 9(2)(b), 141, 146, 150, 242, 232, 237 Protection of the Environment Operations Act 1997 (NSW), s 268
Cases Cited:	The Owners – Strata Plan No 70871 v Turek [2022] NSWCATAP 83 Vickery v The Owners- Strata Plan No 80412 [2020] NSWCA 284 Walsh v The Owners- Strata Plan No 10349 [2017] NSWCATAP 230
Category:	Principal judgment
Parties:	Paul Thomas Butt, applicant The Owners - Strata Plan No 71715, First Respondent John O’Donnell, Second Respondent
Representation:	Counsel: Applicant: M Robinson SC and J Green First Respondent: D Weinberger Solicitors: Applicant: JPR Law First Respondent: Swaab Second Respondent: SpiersRyan
File Number(s):	SC 23/03267
Publication restriction:	Nil