Chee Min Thoo v The Owners ‑ Strata Plan No 50276

[2014] HCASL 79

CHEE MIN THOO

v

THE OWNERS ‑ STRATA PLAN NO 50276 & ORS

[2014] HCASL 79
S178/2013

1. The first respondent ("the Owners Corporation") was constituted under the Strata Schemes Management Act 1996 (NSW) ("the Act"). It was constituted on registration of a freehold strata scheme comprising 58 lots over five floors in a building known as "the Hunter Connection". Other respondents own lots in the strata scheme.

2. The applicant is the registered proprietor of several lots, including Lot 17, which is on the basement level of the building.  The applicant wants to sublet Lot 17 in three separate tenancies for the commercial cooking and sale of food.  The Council of the City of Sydney requires that the premises be properly ventilated.

3. The building has a mechanical exhaust ventilation system.  The applicant asked the Owners Corporation to provide exhaust ventilation capacity sufficient to allow him to sublet Lot 17 as three separate tenancies for the commercial cooking and sale of food.

4. The Owners Corporation maintained, and maintains, that the existing ventilation system is already being fully used to the limit of its available design capacity.

5. The applicant sought, and obtained at first instance, orders of the Supreme Court of New South Wales (Slattery J) requiring the Owners Corporation to modify, or add to, repair or replace the existing ventilation system so that Lot 17 would receive the exhaust ventilation capacity the applicant sought.  By later orders, the applicant obtained an award of damages.

6. On appeal by the Owners Corporation (and others), the Court of Appeal (Barrett JA, Tobias AJA and Preston CJ of LEC) set aside the orders of the primary judge and dismissed the applicant's claim.  The applicant now seeks special leave to appeal to this Court.

7. The determinative issue in the Court of Appeal was whether, as the applicant submitted, the relevant obligations of the Owners Corporation were regulated principally by s 62(2) of the Act (providing that an owners corporation "must renew or replace any fixtures or fittings comprised in the common property") or s 65A (empowering an owners corporation, "[f]or the purpose of improving or enhancing the common property", to add to or alter common property or to erect a new structure on common property.)

8. There is no reason to doubt the Court of Appeal's conclusion that, in the particular facts and circumstances of this case, s 65A applied, not s 62.

9. The questions about damages for breach of statutory duty which the applicant seeks to agitate in this Court would not fall for consideration and we need express no view about whether the reasoning of the Court of Appeal on that aspect of the matter is right.

10. An appeal to this Court would enjoy insufficient prospects of success to warrant a grant of special leave.

11. Pursuant to r 41.11.1 of the High Court Rules 2004 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

K.M. Hayne
2 April 2014 S.M. Crennan