Courtenay v Proprietors Strata Plan 12125

The New South Wales Court of Appeal considered a dispute between Mr. Courtenay and the proprietors of Strata Plan 12125 concerning the interpretation of by-laws governing the use of common property. Mr. Courtenay, a lot owner, had erected a structure on common property without the consent of the strata scheme's executive committee. The proprietors sought orders to have the structure removed.

The central legal issue before the Court of Appeal was whether the by-laws of Strata Plan 12125, specifically by-law 14, prohibited Mr. Courtenay's actions. By-law 14 stipulated that no owner or occupier of a lot could alter the common property or erect any structure on it without the prior written consent of the executive committee. The Court had to determine if Mr. Courtenay's construction constituted an alteration or erection of a structure within the meaning of this by-law, and if so, whether the proprietors were entitled to an order for its removal.

The Court of Appeal found that Mr. Courtenay's actions clearly fell within the prohibition of by-law 14. It reasoned that the erection of a structure on common property, regardless of its size or permanence, constituted an alteration and an erection of a structure. The Court emphasised that the by-laws were designed to regulate the use and enjoyment of common property for the benefit of all lot owners, and that individual owners could not unilaterally alter or build upon common property without the prescribed consent. The Court upheld the primary judge's finding that the structure was erected in contravention of the by-laws.

The Court of Appeal dismissed Mr. Courtenay's appeal and affirmed the orders made by the primary judge, which included an order for the removal of the structure and an order for Mr. Courtenay to pay the proprietors' costs.