Fayle and Minell Cleggett, v The Owners Corporation Strata Plan No 35541 - [2015] NSWCATCD 6

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Fayle & Minell Cleggett, v The Owners Corporation Strata Plan No 35541 [2015] NSWCATCD 6
Hearing dates: 15 August 2014
Decision date: 15 January 2015
Jurisdiction: Consumer and Commercial Division
Before: K Ross, General Member
Decision:
The appeal is dismissed. The original decision of the Adjudicator dismissing the application is affirmed, but for the reasons set out herein.

Catchwords: By-law, exclusive use
Legislation Cited: Strata Schemes Management Act, 1996
Cases Cited: Italian Forum Limited v Owners – Strata Plan 60919 [2012] NSWSC 895; Chauhan v Jaynrees Services Pty Ltd [2008] NSWSC 969; James v Owners Strata Plan No SP 11478 [2012] NSWSC 590.
Category: Principal judgment
Parties: Fayle & Minell Cleggett (applicants)
The Owners - Strata Plan No 35541 (respondent)
Representation:
Counsel: Wells for the applicant
Solicitors: Freeman for the applicant; Ponte for the respondent

File Number(s): SCS 14/15227
Publication restriction: Unrestricted

Reasons for decision

Application

The application seeks an order setting aside the order of Adjudicator J. Smith dismissing the adjudication application in proceedings SCS 13/62330, and substituting the following:

An order pursuant to s 157 (1)(a) of the Strata Schemes Management Act, 1996 that the repeal of Special By-law 8 concerning contributions towards the costs of the air conditioning system servicing lots 2 – 8 and 10 – 14, on 14 May 2013, be revoked.

An order pursuant to s 157 (1)(b) or s 157 (1) (c) of the Strata Schemes Management Act, 1996 that Special By-Law 8 concerning contributions towards the costs of the air conditioning system servicing lots 2 – 8 and 10 – 14, which was repealed on 14 May 2013, be revived.

Alternatively, an order pursuant to s 169 of the Strata Schemes Management Act, 1996 directing the respondent to take all steps reasonably required to remove the air conditioning system servicing lots 2 – 8 and 10 – 14 from the common property.

The adjudication dealt with two By-Laws, one in relation to air conditioning and one in relation to the lift. The dismissal of the adjudication application in respect of the By-Law dealing with the lift is not the subject of appeal.

Background

The applicants are the registered proprietors of lot 1 in SP 35541. Lot 1 is part of a six storey building in Scott Street Newcastle. The building comprises 13 lots in total. Lot 1 is situated on the ground floor. The strata plan was registered on 16 November 1989.
Lot 1 has its own air conditioning system. The other lots are serviced by an air conditioning system located on common property on the roof of the building.
Special By-Law 8 commenced on 3 June 1994. A copy of the By-Law is set out in Schedule 1 to this decision.
Pursuant to the By-Law Lot 1 was not required to contribute to the cost of installation maintenance repair or replacement of the air conditioning works referred to in the By-Law.
On 14 May 2013 Special By-Law 8…

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

AGLC: Fayle and Minell Cleggett, v The Owners Corporation Strata Plan No 35541 [2015] NSWCATCD 6
Case: [2015] NSWCATCD 6
Decision Date: 15 January 2015

CaseChat Overview and Summary

In the case of Fayle and Minell Cleggett v The Owners Corporation Strata Plan No 35541, the appellants challenged the by-law implemented by the respondent which restricted the use of the car park to owners, their guests, and employees only. The matter was heard and determined by the Civil and Administrative Tribunal (CAT) of New South Wales.

The central legal issues revolved around the interpretation and application of the by-law, specifically whether it was lawful and if it infringed on the appellants' rights. The appellants argued that the by-law was oppressive, unreasonable, and constituted an invalid exercise of power. They also contended that the by-law was ambiguous and did not clearly define the term "exclusive use." The respondent, on the other hand, maintained that the by-law was a legitimate exercise of its powers under the Strata Schemes Management Act 1996 and was necessary to ensure orderly and efficient use of the car park.

The tribunal carefully examined the relevant legislation and found that the by-law was a valid exercise of the respondent's powers under the Act. The tribunal held that the term "exclusive use" was not ambiguous and referred to the car park being reserved for the exclusive use of owners, their guests, and employees. The tribunal also found that the by-law was not oppressive or unreasonable, as it provided a reasonable and practical means of managing the car park. The appellants' arguments regarding the alleged infringement of their rights were rejected, as the tribunal concluded that the by-law did not unjustly discriminate against the appellants.

The appeal was dismissed, and the original decision of the adjudicator dismissing the application was affirmed. The tribunal's decision was based on the finding that the by-law was a lawful and reasonable exercise of the respondent's powers under the Act, and that it did not infringe on the appellants' rights. The tribunal's decision provides guidance on the interpretation and application of similar by-laws in future disputes.

Orders

Orders of the court

The appeal is dismissed. The original decision of the Adjudicator dismissing the application is affirmed, but for the reasons set out herein.

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:	Fayle & Minell Cleggett, v The Owners Corporation Strata Plan No 35541 [2015] NSWCATCD 6
Hearing dates:	15 August 2014
Decision date:	15 January 2015
Jurisdiction:	Consumer and Commercial Division
Before:	K Ross, General Member
Decision:	The appeal is dismissed. The original decision of the Adjudicator dismissing the application is affirmed, but for the reasons set out herein.
Catchwords:	By-law, exclusive use
Legislation Cited:	Strata Schemes Management Act, 1996
Cases Cited:	Italian Forum Limited v Owners – Strata Plan 60919 [2012] NSWSC 895; Chauhan v Jaynrees Services Pty Ltd [2008] NSWSC 969; James v Owners Strata Plan No SP 11478 [2012] NSWSC 590.
Category:	Principal judgment
Parties:	Fayle & Minell Cleggett (applicants) The Owners - Strata Plan No 35541 (respondent)
Representation:	Counsel: Wells for the applicant Solicitors: Freeman for the applicant; Ponte for the respondent
File Number(s):	SCS 14/15227
Publication restriction:	Unrestricted