Community Association DP 270158 v O'Neill - [2018] NSWCATCD 26

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Community Association DP 270158 v O’Neill [2018] NSWCATCD 26
Hearing dates: 27 February 2018
Date of orders: 12 July 2018
Decision date: 12 July 2018
Jurisdiction: Consumer and Commercial Division
Before: J A Ringrose, General Member
Decision:
(1) The respondent is to cause the undertaking of all such works as may be necessary to ensure compliance with the Australian Building Code, the relevant Australian Codes for the swimming pool and fencing works surrounding it constructed on Lot 8 of the Community Association DP 270158 and is to produce evidence of compliance within 60 days of the date of these orders.

(2) The enclosure of the decks, including roofing above them in the centre of the house on Lot 8 in DP270158 is to be removed and that area is to be returned to the condition it was prior to the commencement of those works. Such works are to be completed within 60 days from the date of these orders.

(3) The respondent is to relocate the water tank at the rear of the house which is currently located outside the designated building area so that the water tank complies with the Community Management Statement for the Community Association of DP 270158. The tank is to be moved to an area located within the designated building area within 30 days of the date of these orders.

(4) The respondent is to pay the applicant’s cost as agreed or assessed on a party/party basis within 14 days after an agreement or an assessment under Pt 4.3 Div 7 of the Legal Profession Uniform Law Application Act 2014.
(5) The Appeal SCS 17/33366 is dismissed and each party is to pay its own costs
Catchwords: New Constructions and building modifications compliant with Community Management Statement – Whether the By-laws contained in the Community Management Statement are binding upon the parties Costs in respect of a community land management adjudication which has been referred to the Tribunal.
Legislation Cited: Civil and Administrative Tribunal Act 2013
Community Land Management Act 1989
Cases Cited: Colgate Palmolive Co. v Cussons Pty Ltd [1993] 46 FCR 225
Cripps v G & M Mawson [2006] NSWCA 94
Owners Corporation SP 68751 v Community Association DP 270281 [2015] NSWCATCD 99
Owners Corporation SP 80412 v Vickery [2018] NSWCATAP 29
Sakkara Landings Trust v The Residents Committee of the Landings Retirement Village [2016] NSWCATAP 52
Sewell v Zelden (No. 2) [2010] NSWSC 1181
Category: Principal judgment
Parties: Community Association DP 270158 – Applicant
Patricia May O’Neill – Respondent
Representation: Mr Bambagiotti of Counsel for the applicant
Mr Woods for the respondent
Grace Lawyers for the applicant
de Mestre & Company Solicitors for the respondents

File Number(s): SCS 17/29022 (external appeal) SCS 17/33366 (adjudication referred to Tribunal)
Publication restriction: Nil

reasons for DECISION

Background

The applicant is Community Association DP 270158 being a sub-division known as Kelman Estate. The estate is located at X XXX XXX Road Cessnock, being an area previously…

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: [2018] NSWCATCD 26
Decision Date: 12 July 2018

CaseChat Overview and Summary

Community Association DP 270158 brought an application against O'Neill regarding alleged non-compliance with the Community Management Statement. The dispute centred on several modifications made to Lot 8 of DP270158, including the construction of a swimming pool, enclosure of decks, and placement of a water tank outside the designated building area. The Central Australian Tribunal was tasked with determining whether these modifications complied with the Community Management Statement and, if not, what remedial actions were required.

The primary legal issues were whether the By-laws contained in the Community Management Statement were binding upon the parties and whether O'Neill had to undertake certain works to bring the modifications into compliance with the Australian Building Code and the relevant Australian Codes. Additionally, the court needed to decide on the costs associated with the adjudication, specifically whether they should be paid by the parties on a party/party basis.

The Tribunal found that the Community Management Statement's By-laws were binding and that the modifications made by O'Neill did not comply with the required standards. Consequently, the Tribunal ordered O'Neill to undertake specific works to ensure compliance, including the removal of the enclosed decks, relocation of the water tank, and construction of the swimming pool according to the Australian Building Code and relevant Australian Codes. The Tribunal also ordered O'Neill to pay the applicant's costs as agreed or assessed on a party/party basis. The appeal against the initial decision was dismissed, with each party bearing its own costs.

Orders

Orders of the court

(1) The respondent is to cause the undertaking of all such works as may be necessary to ensure compliance with the Australian Building Code, the relevant Australian Codes for the swimming pool and fencing works surrounding it constructed on Lot 8 of the Community Association DP 270158 and is to produce evidence of compliance within 60 days of the date of these orders.

(2) The enclosure of the decks, including roofing above them in the centre of the house on Lot 8 in DP270158 is to be removed and that area is to be returned to the condition it was prior to the commencement of those works. Such works are to be completed within 60 days from the date of these orders.

(3) The respondent is to relocate the water tank at the rear of the house which is currently located outside the designated building area so that the water tank complies with the Community Management Statement for the Community Association of DP 270158. The tank is to be moved to an area located within the designated building area within 30 days of the date of these orders.

(4) The respondent is to pay the applicant’s cost as agreed or assessed on a party/party basis within 14 days after an agreement or an assessment under Pt 4.3 Div 7 of the Legal Profession Uniform Law Application Act 2014.

(5) The Appeal SCS 17/33366 is dismissed and each party is to pay its own costs

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:	Community Association DP 270158 v O’Neill [2018] NSWCATCD 26
Hearing dates:	27 February 2018
Date of orders:	12 July 2018
Decision date:	12 July 2018
Jurisdiction:	Consumer and Commercial Division
Before:	J A Ringrose, General Member
Decision:	(1) The respondent is to cause the undertaking of all such works as may be necessary to ensure compliance with the Australian Building Code, the relevant Australian Codes for the swimming pool and fencing works surrounding it constructed on Lot 8 of the Community Association DP 270158 and is to produce evidence of compliance within 60 days of the date of these orders. (2) The enclosure of the decks, including roofing above them in the centre of the house on Lot 8 in DP270158 is to be removed and that area is to be returned to the condition it was prior to the commencement of those works. Such works are to be completed within 60 days from the date of these orders. (3) The respondent is to relocate the water tank at the rear of the house which is currently located outside the designated building area so that the water tank complies with the Community Management Statement for the Community Association of DP 270158. The tank is to be moved to an area located within the designated building area within 30 days of the date of these orders. (4) The respondent is to pay the applicant’s cost as agreed or assessed on a party/party basis within 14 days after an agreement or an assessment under Pt 4.3 Div 7 of the Legal Profession Uniform Law Application Act 2014. (5) The Appeal SCS 17/33366 is dismissed and each party is to pay its own costs
Catchwords:	New Constructions and building modifications compliant with Community Management Statement – Whether the By-laws contained in the Community Management Statement are binding upon the parties Costs in respect of a community land management adjudication which has been referred to the Tribunal.
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Community Land Management Act 1989
Cases Cited:	Colgate Palmolive Co. v Cussons Pty Ltd [1993] 46 FCR 225 Cripps v G & M Mawson [2006] NSWCA 94 Owners Corporation SP 68751 v Community Association DP 270281 [2015] NSWCATCD 99 Owners Corporation SP 80412 v Vickery [2018] NSWCATAP 29 Sakkara Landings Trust v The Residents Committee of the Landings Retirement Village [2016] NSWCATAP 52 Sewell v Zelden (No. 2) [2010] NSWSC 1181
Category:	Principal judgment
Parties:	Community Association DP 270158 – Applicant Patricia May O’Neill – Respondent
Representation:	Mr Bambagiotti of Counsel for the applicant Mr Woods for the respondent Grace Lawyers for the applicant de Mestre & Company Solicitors for the respondents
File Number(s):	SCS 17/29022 (external appeal) SCS 17/33366 (adjudication referred to Tribunal)
Publication restriction:	Nil