Gao v The Owners Strata Plan No 100946; Jiang v Gao
[2025] NSWCATCD 130
•25 September 2025
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New South Wales |
Case Name: | Gao v The Owners Strata Plan No 100946; Jiang v Gao |
Medium Neutral Citation: | [2025] NSWCATCD 130 |
Hearing Date(s): | 26 June 2025 |
Date of Orders: | 25 September 2025 |
Decision Date: | 25 September 2025 |
Jurisdiction: | Consumer and Commercial Division |
Before: | D Bluth, Senior Member |
Decision: | (1) The Respondent being the Owners-Strata Plan No 100946 is to within 14 days of the date of these orders |
Catchwords: | Land Law-Easements- Real Property Act 1900, Conveyancing Act 1919, Strata Schemes Management Act 2015, Indefeasibility of title |
Legislation Cited: | Conveyancing Act 1919 (NSW) |
Cases Cited: | Bahr v Nicolay (No 2) (1988) 164 CLR 604 |
Category: | Principal judgment |
Parties: | Mexia (Leah) Gao (Applicant/Respondent) |
Representation: | Solicitors: Applicant- Self |
File Number(s): | 2025/0009632 and 2025/00063345 |
REASONS FOR DECISION
This is a strata schemes application with respect to a dispute regarding the occupation of a car space in a strata scheme in Chatswood.
The Applicant is the registered proprietor of lot 7 in the strata scheme.
The first Respondent is the Owners Corporation the registered proprietor of the common property of the strata scheme (the OC).
The second and third Respondents are the registered proprietors of lot 32 in the strata scheme.
The dispute concerns the use by the second and third Respondents of the car space owned by the Applicant.
A strata and community scheme application was filed on 8 January 2025 seeking orders against the strata manager of the OC and the second and third Respondents (file no 2025/00009632).
By orders made on 29 April 2025 the Tribunal removed the strata manager as a party to these proceedings.
The second and third Respondents have filed a cross-claim file no 2025/00063345 on 14 February 2025 against the Applicant.
The Applicant in submissions filed on 28 May 2025 updated the relief being sought. That relief is as follows:
Pursuant to Sections 136, 139, 149, 232, 256, 13, 42 and 43, 52, 53, 54 of the Strata Schemes Management Act 2015 (NSW), ( the SSMA) the Applicant seeks the following orders:
(1) A declaration that the by-law purporting to grant the easement over privately owned property is invalid and unenforceable.
(2) An order pursuant to Strata Scheme Management Act 2015 that the Respondent:
(a) Permanently remove ‘703’ marking from the designated parking space of lot 7 in Basement 2, and;
(b) Immediately reinstate the original ‘103’ marking:
(i) Using durable materials matching the strata scheme’s standard markings;
(ii) In identical font, size and colour to adjacent numbered spaces, and;
(iii) Provide dated photographic evidence of compliance to both the Applicant and Tribunal within 3 business days of service of the order.
(c) An order pursuant the Compensation to the Applicant requiring:
(i) The First Respondent - The Owner Corporation, Strata plan No 100946, and;
(ii) The Second Respondent — The Strata Committee Chairperson, to jointly and severally reimburse the Applicant sum of $46,650, comprising:
1. Act in Trespassing and Malicious Property Damage: $30,000;
2. Loss caused by unauthorised encroachment on Lot 103: $10,000;
3. Act in bad faith, and cause Ms Gao’s prolonged loss of quiet enjoyment of the property: $5,000;
4. Financial and legal expenses incurred in the amount of $1,650, and;
(4) An order pursuant to SSMA s.232 and the equitable doctrine of unjust enrichment requiring a total sum of rental payment $11,726, requiring:
(a) The Second and Third Respondents (Mr. Jiang and Ms. Yan, act as Chairpersons and Lot Owner of Lot 703), to reimburse:
...
(b) Parking space rental payments of $286 per month for 41 months (31 July 2020 - 31 December 2023); and
(c) Pre-judgment interest at the rate prescribed under s.100 of the Civil Procedure Act 2005 (NSW)
The second and third Respondents by the cross-claim seek the following orders:
(1) That the cross-defendant’s application 2025/9632 be dismissed.
(2) A declaration that the Registered Easement AQ225571W for the exclusive use of Car Parking Space “X” by the Cross-Applicants is valid and enforceable.
(c) A declaration that the parking of the vehicle by the Cross-defendant prevented the Cross-applicant’s use and enjoyment of the Car Parking space “x” and was in breach of the Registered Easement AQ225571W.
(d) The Cross-defendant and/or her agents be restrained from parking any vehicle or otherwise interfering with or obstructing the Cross-applicants’ rights to use the Car Parking Space “X” pursuant to the Registered easement AQ225571W.
(e) Damages
(f) Costs
As can be seen from the strata application and the cross-claim the issues are significant and the monetary claims substantial.
The Applicant filed her submissions and material on 28 May 2025 and was self-represented at the hearing on 26 June 2025.
The OC filed submissions in Response and material on 9 May 2025. and represented at the hearing by Mr C Prestipino, solicitor
The second and third Respondents filed their submissions and material on 25 June 2025 and were represented by Ms Fan, solicitor at the hearing.
BACKGROUND
Strata plan 100946 was registered on 14 April 2020
The strata plan indicates (at sheet 4 of the administration sheet) that the original owner of the strata scheme was Castle 88 Pty Ltd.
Relevantly for present purposes, lot 7 and lot 32 each have one parking space on title, located in “Basement 2” shown at sheet 2 of the strata plan next to each other.
THE EASEMENT
On 22 July 2020, a Transfer Granting Easement was registered on the titles of lots 7 and 32 in the strata scheme, as registered dealing AQ22571 (the Easement) Relevantly:
(a)A title search for lot 7, shows that dealing AQ22571 is registered on title,
(b)A title search for lot 32, shows that dealing AQ22571 is registered on title, and
(c)The title search for the common property shows that dealing AQ22571 is not registered on the common property certificate of title.
The terms of the Easement relevantly provide that:
(a)The servient tenement is lot 7.
(b)The dominant tenement is lot 32.
(c)The Easement burdens part of lot 7, described as the Car Parking Space of lot 7, located on level Basement 2 and marked “ X” in the plan annexed to the Easement.
(d)The owner of lot 32 (being the “Lot Benefited”) is granted a right to pass across and parka vehicle in the Car Parking Space of lot 7 and do “anything reasonably necessary” for that purpose.
(e)The owner of lot 7 “must not use the Car Parking Space and must not do anything that could, in any way, hinder the full, free, and unfettered rights of the Owner of the Lot Benefitted” (clause 1 .3 of the Easement).
The Easement was executed by Castle 88 Pty Ltd, as the owner of both lots 7 and 32 as at 22 July 2020.
Relevantly, the easement does not impact the common property in any way. It burdens part of lot 7 for the benefit of lot 32. It is registered on the titles of both of those lots but is not registered on the common property certificate of title.
THE APPLICANT’S PURCHASE OF LOT 7
The Applicant acquired lot 7 from Castle 88 Pty Ltd on 6 October 2020 pursuant to a contract for sale of lot 7. The contract is dated 25 August 2020 with a settlement date of 6 October 2020 (being 42 days from the date of the contract).
The contract includes a title search for lot 7 from 25 August 2020, showing the Easement registered on title and includes a copy of the registered Easement.
By Transfer, being dealing AQ455300 registered on 8 October 2020 Castle 88 Pty Ltd transferred lot 7 to the Applicant.
A review of the sales campaign material for lot 7 shows that it was marketed as having one bedroom, one bathroom and no parking space.
PURCHASE OF LOT 32
The second and third Respondents on 25 May 2020 entered into a contract to purchase lot 32 from Castle 88 Pty Limited. Clause 50.1 of that contract provided that the vendor Castle 88 Pty Limited would facilitate the registration on or before settlement of the purchase of lot 32, of a transfer granting easement over lot 7 car space in favour of the registered proprietor of lot 32 to use that car space A copy of the proposed easement was annexed to the contract.
The Easement was registered on 22 July 2020 in substantially the same form as the draft annexed to the contract with only minor amendments to facilitate its registration.
On 31 July 2020 the second and third Respondents completed the purchase of lot 32 with the registered Easement in place.
EVENTS POST REGISTRATIO OF THE EASEMENT
The Second Respondent in his affidavit dated 23 April 2025 stated that:
10. From the date of settlement until about September 2023, the Car Parking Space X was consistently marked as “703”, which corresponds to the lot 32 Property. During that period my family owned only one vehicle and ordinarily used the rightmost spot of the two designated spaces, rather that the Car Parking Space X, which is situated adjacent to the wall.
11. In or about September 2023, I saw the marking on the Car Parking space X had been altered to read “ 103”, corresponding to Unit 103..(lot7) . This change was made without any prior notice or consent. At the time, I did not pay much attention to the change, as it did not affect my ability to use the space for parking and I had always understood that two car spaces were allocated to lot 32 owners.
Subsequently the second Respondent contacted the then strata manager to write to then Applicant to assert the rights of the second and third Respondents to utilize the car space. The strata manager correctly informed the Respondents that it was not the role of the strata manager to be engaged in what was a dispute between two lot owners and that the Respondents should contact the Applicant directly.
The no interference by the strata manager in this dispute changed when the new strata manger was appointed, who took a more hands on approach and arrange for the marking of “103” to be changed to “ 703” and to issue a formal notice to the Applicant directing the Applicant to cease using the Car Parking space.
Relationship between the parties deteriorated to the extent that it became quite acrimonious. While both the Applicant and the second and third Respondents have detailed the unpleasant interactions between the parties including involvement of the police, repeating them and commenting upon does not resolve this dispute.
APPLICANT’S SUBMISSIONS
The central issue in this matter concerns a coordinated act by the OC, certain members of the Strata Committee and the Strata Manager who collectively exceeded their authorized roles and breached legal boundaries.
It is alleged that this conduct constitutes unlawful trespass and vandalism upon the Applicant’s privately owned parking lot including the unauthorized alteration of its designated lot number, thereby violating multiple fundamental provisions under the SSMA.
Specifically, the Strata Committee Chairperson, in collusion with the OC and the Strata Manager unlawfully encroached upon the Car Parking Space of the Applicant and painted it with the Chairman’s (the second Respondent) unit number 703 on or about 27 November 2024.
The Respondents have refused to restore the lot number to the Car Parking Space to its original, legally recognized designation thereby perpetuating the ongoing breach.
The second and third Respondents have relied on an improperly registered easement as a pretext to exceed his authority as Chairman of the Strata Scheme.
This misuse of his position under the by-laws and purported easement rights constitutes a serious violation of both the strata scheme and Development Approval.
The Applicant refers to correspondence between the second and third Respondents and the strata manager regarding the use of the Car Parking Space which best indicates a misunderstanding by the parties as to easement registered on title and by-laws.
The Applicant also draws on correspondence with Willoughby Council in support of her assertions as to unlawful trespass by the Respondents. The Applicant relies on the Development Approval by the Council for the construction of the unit building with 32 units and 32 car parking spaces.
The Applicant contacted the Council enquiring about the reallocation of the Car Parking space and received a letter from the Development Enforcement Officer dated 13 December 2024 which stated:
I have reviewed this matter and provide the following advice:
DA-2017/203
1.Development Consent DA-2017/203 (as amended) was granted by Willoughby Local Planning Panel ( WLPP) on august 2018 for demolition of existing buildings and construction of residential flat building consisting of 32 apartments, car-parking and associated works.
2. A review of the approved plans show the layout of the car-parking spaces in the basement level but not allocated to a specific apartment.
3. There are no conditions of consent under DA-2017/203 specifically requiring car parking spaces be all allocated to each apartment. However, the approved plans indicate 32 car spaces for 32 apartments plus 8 visitor parking spaces. A total of 40 spaces.
4. Strata Plan 100946 was registered on 14 April 2020. Council is not aware of any strat5a plans registered after this date.
5. A review of the registered strata plan indicates the subject car space is part of lot 7 ( unit 103) and lot 32 ( unit 703) is allocated the adjoining car space.
Based on the above review, Council advises the following:
1. The reallocation of the car space by the strata manger is not a breach of DA2017/203.
2.Strata Plan 100946 shows the car space is part of lot 7 ( unit 103), not lot 2 ( unit 703).
3. The reallocation of the car space from lot 7 to lot 32 by line marking is inconsistent with Strata Plan 100946. Please note Council has no powers to enforce Strata Plans. This mis considered a civil ( private) matter between you, the OC, the Strata Manager and the owner of lot 32. It is recommended that you seek legal advice.
The Applicant submitted that this letter supported the Applicant’s claim that the Respondents possess no legal right to interfere with the Car Parking Space and lacked any statutory power to unilaterally violate the registered Strata Plan. It was further alleged that the auctions of the Respondents constituted trespass, vandalism and fraudulent misrepresentation deliberate false claims to ownership, substantiated by documentary evidence.
I have set out the Applicant’s submissions and claims to indicate that extreme language used in this dispute. The Applicant is convinced of her legal rights as was evidence during the hearing.
SUBMISSIONS BY THE OC
The issue in dispute does not involve common property, the Easement is registered on the titles of lots 7 and 32 and not registered on the title for the common property.
The relief sought is not against the OC and in so far as the application relates to the OC it must be dismissed.
The application is misguided in its entirety based on a misunderstanding of how the law of easements operates. The Easement is an encumbrance on the title to lot 7 preventing the registered proprietor of lot 7 from using the Car Parking Space and permitting the registered proprietor of lot 32 to use it.
The Applicant can point to no breach of the state planning laws or to the development consent.
Tribunal does not have the powers to extinguish an easement, declare that the registered proprietor of lot 7 can use the Car Parking Space, compensate for harassment and stress allegedly caused by the registered proprietors of lot 32.
On 24 April 2025 the lawyers for the OC wrote tot eh Applicant pointing out the fundamental flaws in her application and inviting her to withdraw. The Applicant has willfully ignored the advice and pressed on with her application, failing to engage in meaningful discussions with the OC and caused the OC to incur costs. Accordingly, the OC seeks to be heard on the question of costs either under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) or under Rule 38 of the Tribunal Rules.
SUBMISSIONS FROM SECOND AND THIRD RESPONDENTS
The submissions are in line with the above submission from the OC that the Respondents are entitled to use the Car Parking space pursuant to the grant of Easement.
The Respondents seek the orders the cross-claim application because:
(a)the Respondents are lawfully entitled to the exclusive use of the Car Parking Space pursuant to the Easement,
(b)The Applicant’s continued unauthorized occupation of the Car Parking space undermines their proprietorial rights and interferes with the Easement,
(c)The ongoing occupation compromises the Respondents’ ability as the registered proprietors of lot 32 to use and enjoy the Car Parking space as intended by the terms of the Easement.
THE LAW OF EASEMENTS
As submitted by the OC and the Respondents the Applicant has completely misunderstood the law of Easements.
An easement may be defined as a right annexed to land to utilise other land of different ownership in a particular manner (not involving the taking of any part of the natural produce of that land or any part of its soil) or to prevent the owner of the other land from utilizing his land in a particular manner (see Halsbury’s Law of England (4th Ed), Vol 14, p4.)
Expressed more simply, it is a right enjoyed by the owner of one parcel of land to carry out some limited activity (short of taking possession) on a parcel of land owned by another person. An example is a right of way: it gives rights to cross one parcel of land to provide access to another parcel of land ( eg a battle axe block of land at the rear) (see Butt Land Law 5th Ed )
Although the English law (from which Australia derives its law) in relation to Easements drew its inspiration from Roman Law foundations, many of the important features were not defined until the mid-19th century.
The system of tile to land in Australia (NSW) is Torrens title. Strata Title is a form of Torrens tile which is ownership of land by registration. The single title would evidence ownership of the land, and any encumbrances registered on the title.
Consequently, each registered owner’s title would be indefeasible. The conclusiveness of the Register confers on the registered proprietor of an interest in Torrens title land an “indefeasible title” to that interest (which can be the benefit of an easement). By an “indefeasible title” to an interest is meant a title that cannot be set aside on the ground of a defect existing in the title before the interest was registered. Indefeasibility is the “foundation of the Torrens system” Bahr v Nicolay (No 2) ( 1988) 164 CLR 604 at 613; Butt [2015])
Section 46 of the Real Property Act 1900 (NSW) provides for the creation of easements by executing and by registering an approved form of transfer granting an easement. By s47(1) where easement burdens land the Registrar General must record particulars of the dealing creating the easement in the folios of the Register for the burdened and benefitted land. Once registered on the tile to the burdened land, the easement is indefeasible (see Parramore v Duggan [1995] 183 CLR 633; Chiu v Healey [2003] NSWSC 857 at [24])
Easements may be created by registration of a plan under s 88B of the Conveyancing Act 1919 ( NSW). In fact prior to registration of the Strata Plan 10946 a Deposited Plan No 1261080 together with a section 88B Instrument created a number of easements which then became registered on the title to the common property folio CP/SP 100946 such as number 4, a right of carriageway of variable width , number 5, an easement to drain water and number 7 an easement for support all burdening the common property in favour of other neighbours.
All the owners in the Strata Scheme are bound to comply with the terms of each of these easements registered on the title of the common property, although they were created before any lot owner bought into the strata scheme. Each lot owner, as did the Applicant and the Respondents purchased their lot subject to the existing encumbrances on the common property title.
The same principles apply to the purchase of lot 7 by the applicant. The Easement was registered on the title and the Applicant bought the apartment subject to that encumbrance. It is not for the Applicant having so bought, then to turn around and disavow the effects of the Easement. Any challenge to the validity of an easement is to be brought in the Supreme Court under s 89 of the Conveyancing Act 1919.
The Easement was registered on title prior to the Applicant purchasing lot 7 and consequently as it was fully disclosed in the contract she is deemed to be aware of its existence. The apartment was promoted and advertised without a car parking space. If the Applicant says that she was not aware that her purchase did not include the use of the Car Parking Space as it was encumbered by the Easement, she should look to the quality of the advice she received at the time of purchase.
The Tribunal, even if it were minded to so and it is not, cannot make a declaration regarding the rights of the parties in relation to the use of the Car Parking Space. In Walsh v The Owners- Strata Plan No 10349 [2017] NSWCATAP 230 at [60] the Appeal Panel held:
the Tribunal was correct to conclude that, unlike the general power to give injunctive relief, the Tribunal does not have a general power to give declaratory relief. If a finding needs to be made or a Tribunal needs to ‘declare’ that it is satisfied of a particular matter, it expresses those views in the body of the decision, rather than in a separate order. For example, in a particular case the Tribunal may conclude that the owners corporation has breached the duty in s 106 to maintain and repair common property. That conclusion is expressed in the reasons for decision rather than as a separate order. If the Tribunal decides to make an order for damages as a consequence of that breach, that conclusion would be expressed as an order.
The OC has made submissions that it has no case to answer. However, whilst the Applicant’s claim is for the overturing of the Easement and restoration of her right to utilise the Car Parking Space and compensation for the alleged loss, the Applicant also has complaints against the OC for changing the numbering of the Car Parking Space.
Mr Prestipino when pressed on this specific issue submitted that the strata manager was endeavouring to regulate parking in the strata scheme and harmony among its members. However, any markings on the private property of a lot owner whether well intentioned or not is beyond the role of the strata manager and the OC.
As observed by the prior strata manager this is a dispute between lot owners and does not, nor should it, involve the OC. The numbering on the floor of the Car Parking Space does not create any entitlement for anyone to park there, it is only a number on the floor which identifies that the space pertains to lot 103. The right to park can be created in a number of different ways, from ownership of the lot, to being the lessee of the apartment and car parking space or just being a lessee of the car parking space under a lease or licence or by casual oral agreement which is revocable.
The fact that the number 103 should be restored to the floor of the Car Parking Space does not in any way suggest that the Applicant is entitled to use that space, for the Applicant is proscribed not to use it by the terms of the Easement.
The Tribunal will make the orders sought by the Applicant to have the OC reinstate the number 103 on the floor of the Car Parking Space. Otherwise, as the Easement is registered on title there can be no claim for trespass or compensation. The second and third Respondents have the benefit of the easement and are entitled to park a car on the Car Parking Space.
The second and third Respondents also seek declaratory orders that that they are entitled to use the Car Parking Space. For the reasons expressed as stated in Walsh v The Owners- Strata Plan No 10349 [2017] NSWCATAP 230 at [60] the Tribunal does not have the power to make such orders.
The second and third Respondents also seek that the Tribunal make an order restraining the Applicant from utilizing the Car Parking Space.
The Tribunal’s powers to make order found in of the SSMA the section for Orders to settle disputes or rectify complaints. However, these must be either involving the OC or a breach of the by-laws.
On reviewing the Consolidated By-Laws I could find no relevant by-law relating to this dispute between two lot owners. Nor for that matter is the Easement created pursuant to the SSMA, it is pursuant to the Real Property Act 1900.
Section 232 (7) of the SSMA provides that:
Excluded complaints and disputes This section does not apply to a complaint or dispute relating to an agreement that is not an agreement entered into under this Act, or the exercise of, or failure to exercise, a function conferred or imposed by or under any other Act, if another Act confers jurisdiction on another court or tribunal with respect to the subject-matter of the complaint or dispute and the Tribunal has no jurisdiction under a law (other than this Act) with respect to that subject-matter.
The Tribunal has no power to make any orders in this dispute. If the respondents wish to enforce their rights under the Easement, then they must go to the Supreme Court.
Accordingly, the Application in proceedings 2025/0009632, other than an order against the OC to restore the number onto the floor of the Car Parking Space, is dismissed.
Similarly, the crossclaim in proceedings 2025/00063345 is dismissed.
The parties seek to make submissions on costs. I will make the usual direction allowing for submissions and responses.
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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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