Capcelea v The Owners - Strata Plan No 48887

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Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Capcelea v The Owners – Strata Plan No 48887 [2019] NSWCATCD 27
Hearing dates: 25 January 2019
Date of orders: 15 March 2019
Decision date: 15 March 2019
Jurisdiction:Consumer and Commercial Division
Before: G Burton SC, FCIArb, Senior Member
Decision:

1. Order pursuant to section 149 of the Strata Schemes Management Act 2015 (NSW) that the by-laws described as special by-laws 45, 46, 47 and 48 in the draft minutes of the extraordinary general meeting of the Owners Corporation SP 48887 on 18 September 2018 are prescribed as changes to the by-laws of the said strata scheme, with the wording that appears in those draft minutes as copied at pages 597 to 617 of Ex A1 vol 2 in the proceedings and with special by-law 45 to operate on and from 22 May 2013 and special by-laws 46, 47 and 48 to operate on and from 18 September 2018.

 

2. Order the Owners Corporation SP 48887 promptly to do all acts necessary to record the by-laws described in order 1 pursuant to section 246 of the Strata Schemes Management Act 2015 (NSW).

 

3. Note the agreement of the parties that questions of costs can be decided on written submissions without the need for further hearing on costs.

 

4. Order as follows:

 

   4.1 Any party’s written submissions and any    further evidence in chief on costs is to be    lodged with the Tribunal and served on each    other party on or before 4 April 2019.

 

   4.2 Any party’s written submissions and any    further evidence in reply on costs is to be    lodged with the Tribunal and served on each    other party on or before 18 April 2019.

    4.3 If there are no submissions and material    lodged and served pursuant to 4.1 and 4.2,    then the order will be that there is no order as    to costs.
Catchwords: Strata management – relief on refusal to make by-laws - SSMA ss 126, 149, 232, 240
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Strata Schemes Management Act 2015 (NSW)
Strata Schemes Management Regulation 2016 (NSW)
Cases Cited: Ainsworth v Albrecht [2016] HCA 40
Bonita v Shen [2016] NSWCATAP 159
Carroll v Alldritt [2013] NSWCTTT 525
Gazebo Penthouse PL v Owners SP 73943 [2015] NSWCATCD 93
George v Rockett (1990) 170 CLR 104
Gurram v Owners SP 36589 [2018] NSWCATCD 39
Johnson t/as One Tree Constructions v Lukeman [2017] NSWCATAP 45
Latoudis v Casey (1990) 170 CLR 534
McCann v Owners SP 11318 [1998] NSWSSB 44
Milijash v Owners SP 3618 [2002] NSWCTTT 297
Milman v Owners SP 1389 [2005] NSWCTTT 196
OC SP 7596 v Risidore [2003] NSWSC 966
Oppidan Homes PL v Yang [2017] NSWCATAP 67
Oshlack v Richmond River Council (1998) 193 CLR 72
Owners SP 63341 v Malachite Holdings PL [2018] NSWCATAP 256
Owners SP 67631 v Waters and Gardner [2010] NSWCTTT 343
Owners SP 68976 v Nicholls [2018] NSWSC 270
Owners…
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Details
Case
[2019] NSWCATCD 27
Decision Date

CaseChat Overview and Summary

The case of Capcelea v The Owners - Strata Plan No 48887 involved a dispute concerning the management of a strata scheme in New South Wales. The applicant, Capcelea, sought relief under the Strata Schemes Management Act 2015 (NSW) regarding the refusal of the Owners Corporation to make specific by-laws. The matter was heard and determined by the New South Wales Civil and Administrative Tribunal. The central legal issues in this case revolved around the authority and process by which by-laws can be prescribed in a strata scheme under the Act. Specifically, the Tribunal had to determine whether the proposed by-laws were appropriately drafted and whether the process by which they were proposed complied with the legislative requirements.

The Tribunal found that the by-laws in question were indeed appropriately drafted and aligned with the provisions of the Act. It was held that the Owners Corporation had not demonstrated any valid reason to refuse the implementation of these by-laws. The Tribunal emphasized that the proposed by-laws were in the best interest of the strata scheme and its owners, aligning with the overarching objectives of the Act. Consequently, the Tribunal issued an order prescribing the by-laws as changes to the strata scheme's by-laws, with specific effective dates for each by-law. Additionally, the Tribunal mandated that the Owners Corporation take all necessary steps to record these by-laws in accordance with the Act. The matter of costs was to be determined through written submissions, with a clear timeline set for the submission and service of these documents.

In summary, the Tribunal's decision was in favour of the applicant, Capcelea, affirming the validity and appropriateness of the proposed by-laws. The Owners Corporation was ordered to implement these by-laws and record them as changes to the strata scheme's by-laws. The specific effective dates for each by-law were also outlined in the order. The determination of costs was deferred to a later stage, with a clear process set forth for the submission and service of relevant documents.

Orders

Orders of the court

1. Order pursuant to section 149 of the Strata Schemes Management Act 2015 (NSW) that the by-laws described as special by-laws 45, 46, 47 and 48 in the draft minutes of the extraordinary general meeting of the Owners Corporation SP 48887 on 18 September 2018 are prescribed as changes to the by-laws of the said strata scheme, with the wording that appears in those draft minutes as copied at pages 597 to 617 of Ex A1 vol 2 in the proceedings and with special by-law 45 to operate on and from 22 May 2013 and special by-laws 46, 47 and 48 to operate on and from 18 September 2018.

2. Order the Owners Corporation SP 48887 promptly to do all acts necessary to record the by-laws described in order 1 pursuant to section 246 of the Strata Schemes Management Act 2015 (NSW).

3. Note the agreement of the parties that questions of costs can be decided on written submissions without the need for further hearing on costs.

4. Order as follows:

4.1 Any party’s written submissions and any further evidence in chief on costs is to be lodged with the Tribunal and served on each other party on or before 4 April 2019.

4.2 Any party’s written submissions and any further evidence in reply on costs is to be lodged with the Tribunal and served on each other party on or before 18 April 2019.

4.3 If there are no submissions and material lodged and served pursuant to 4.1 and 4.2, then the order will be that there is no order as to costs.

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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