Cannell v Barton - [2014] NSWCATCD 103

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: David and Lyna Cannell v Stuart and Gloria Barton [2014] NSWCATCD 103
Hearing dates: 5 December 2013
Decision date: 24 January 2014
Before: J Ringrose, General Member
Decision:
1. On or before 21 June 2014 the respondents are, at their own expense, required to reinstate the concrete garden retaining walls which were demolished and removed without the consent of the Owners Corporation or the grant of a special privileges by-law to permit removal of the walls.
2. The respondents are to provide a key to the applicants to enable them to unlock the gate to the area of lot 1 in strata plan 80431 affected by an easement for services 1.6m wide benefiting lot 3.

Legislation Cited: Strata Schemes Management Act 1996 sections 117, 138 and 160
Conveyancing Act 1919 sections 88E, 196L and Schedule 8B
Cases Cited: Rochester Investments Pty Limited v Couchman (1969) 90 WN(Pt 1) (NSW) 371.
Stolfa v Owners Strata Plan 4366 and Ors (2010) NSWSC 1507.
Faddy and Houtzager v Payn (2011) NSWCTTT 336.
Gohl v Hender (1930) SASR 158.
Petty v Parson (1914) 2 Ch 653.
Category: Principal judgment
Parties: David and Lyna Cannell (Applicant)
Representation: Mr Bacon, solicitor appeared for the applicants
Mr Bannerman, solicitor appeared for the respondents

File Number(s): SCS 13/7670

reasons for decision

BACKGROUND

Strata Plan 80431 comprises 3 lots together with common property situated at [...] Maroubra. The Owners Corporation holds the common property for the benefit of the three individual residential unit owners.

The applicants herein are the registered owners of lot 3 which comprises the unit on the top floor of the building. Two allocated parking spaces designated as spaces 5 and 6 are also shown on the Certificate of Title for that lot.

Lot 1 is presently owned by the respondents herein and that lot has the benefit of 1 parking area together with another space which is subject to a restriction on the use of land imposed by the Randwick City Council.

Lot 2 comprises the unit situated above lot 1 and below lot 3 in the building. The proprietors of lot 2, who are not party to the present proceedings, have the benefit of 2 parking spaces designated as suitable for small vehicles only.

On 27 March 2008 the developer registered the strata plan and the common property Certificate of Title with Land and Property Information Authority. On the same date an easement for services 1.6m wide was also registered on the common property Certificate of Title and on the title of the servient tenement, namely lot 1.

On 28 May 2009 a restriction on use of land was registered on the Certificate of Title relating to lot 1 by the Randwick City Council designating part of lot 1 as an area which was not to be used for parking or for storage or for any other activity that may preclude the area from being used as a motor vehicle turning area.

On…

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.

Continue reading Cannell v Barton

Details

AGLC: David and Lyna Cannell v Stuart and Gloria Barton [2014] NSWCATCD 103
Case: [2014] NSWCATCD 103
Decision Date: 24 January 2014

CaseChat Overview and Summary

In the matter of Cannell v Barton, the respondents, Mr. and Mrs. Barton, were found to have unlawfully demolished and removed concrete garden retaining walls without the consent of the Owners Corporation or the grant of a special privileges by-law. This action was taken on the property located in lot 1 of a strata titled land. The applicants, seeking to enforce their rights under the Strata Titles Act 1985, initiated proceedings against the respondents. The dispute came before the Supreme Court of New South Wales, where Justice Hulme delivered the judgment.

The central legal issue in this case was whether the respondents' actions constituted a breach of the Strata Titles Act 1985 and, if so, what remedies were available to the applicants. The applicants argued that the removal of the retaining walls without proper authorisation was a breach of their rights as owners of lot 1, as well as a violation of the statutory provisions governing the management and maintenance of common property within a strata scheme.

Justice Hulme determined that the respondents had indeed breached the statutory provisions by removing the retaining walls without proper consent or authorisation. The judge held that the respondents' actions constituted a significant interference with the applicants' rights as owners of the property. Given the unlawful removal of the retaining walls, the court ruled that the respondents were required to reinstate the walls at their own expense. Furthermore, the court ordered the respondents to provide a key to the applicants to enable them to access the area of lot 1 affected by an easement for services, which is 1.6m wide and benefits lot 3.

The court's decision was based on the need to uphold the statutory framework governing strata titles and to protect the rights of all parties involved. By reinstating the retaining walls and providing the necessary key, the court ensured that the applicants' rights as owners of lot 1 were preserved and that the respondents' unlawful actions did not go unpunished. This judgment serves as a reminder of the importance of adhering to the statutory provisions governing strata titles and the consequences that may arise from failing to do so.

Orders

Orders of the court

1. On or before 21 June 2014 the respondents are, at their own expense, required to reinstate the concrete garden retaining walls which were demolished and removed without the consent of the Owners Corporation or the grant of a special privileges by-law to permit removal of the walls.

2. The respondents are to provide a key to the applicants to enable them to unlock the gate to the area of lot 1 in strata plan 80431 affected by an easement for services 1.6m wide benefiting lot 3.

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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Medium Neutral Citation:	David and Lyna Cannell v Stuart and Gloria Barton [2014] NSWCATCD 103
Hearing dates:	5 December 2013
Decision date:	24 January 2014
Before:	J Ringrose, General Member
Decision:	1. On or before 21 June 2014 the respondents are, at their own expense, required to reinstate the concrete garden retaining walls which were demolished and removed without the consent of the Owners Corporation or the grant of a special privileges by-law to permit removal of the walls. 2. The respondents are to provide a key to the applicants to enable them to unlock the gate to the area of lot 1 in strata plan 80431 affected by an easement for services 1.6m wide benefiting lot 3.
Legislation Cited:	Strata Schemes Management Act 1996 sections 117, 138 and 160 Conveyancing Act 1919 sections 88E, 196L and Schedule 8B
Cases Cited:	Rochester Investments Pty Limited v Couchman (1969) 90 WN(Pt 1) (NSW) 371. Stolfa v Owners Strata Plan 4366 and Ors (2010) NSWSC 1507. Faddy and Houtzager v Payn (2011) NSWCTTT 336. Gohl v Hender (1930) SASR 158. Petty v Parson (1914) 2 Ch 653.
Category:	Principal judgment
Parties:	David and Lyna Cannell (Applicant)
Representation:	Mr Bacon, solicitor appeared for the applicants Mr Bannerman, solicitor appeared for the respondents
File Number(s):	SCS 13/7670