Gisks v The Owners Strata Plan No. 6743

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Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Gisks v The Owners - Strata Plan No. 6743 [2021] NSWCATCD 14
Hearing dates: 17 May 2021
Date of orders: 24 May 2021
Decision date: 24 May 2021
Jurisdiction:Consumer and Commercial Division
Before: G Blake AM SC, Senior Member
Decision:

(1)   The proceedings are dismissed.

Catchwords:

LAND LAW — Strata title — Owners corporation — Application for the approval of works and a common property rights by-law – Whether the owners corporation unreasonably refused its consent

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Strata Schemes Management Act 2015 (NSW)

Cases Cited:

Endre v The Owners - Strata Plan No. 17771 [2019] NSWCATAP 93

Owners Corporation Strata Plan 7596 v Risidore & Ors [2003] NSWSC 966

The Owners – Strata Plan No 69140 v Drewe [2017] NSWSC 845

Category:Principal judgment
Parties: Martin Gisks (Applicant)
The Owners - Strata Plan No. 6743 (Respondent)
File Number(s): SC 21/07549
Publication restriction: Nil

REASONS FOR DECISION

Overview

  1. In these proceedings the applicant, Martin Gisks, who is the owner of lots 5 and 25, seeks an order for the approval of, and an order with respect to common property rights by-law with respect to, the installation of solar panels on the roof of his garage (the proposed works) which is lot 25 under the Strata Schemes Management Act 2015 (NSW) (SSM Act) against the respondent, The Owners - Strata Plan No 6743, which is the owners corporation responsible for the management of the strata scheme related to strata plan no 6743 (SP6743).

  2. I have decided that the proceedings should be dismissed.

The background

  1. SP6743 consists of a 3 storey residential unit complex comprising of 15 two-bedroom units at Dolls Point. It was constructed in approximately 1972. Additionally, 13 enclosed single-car garages and 2 open single-car parking spaces are at the complex and all are at ground level. Each lot owner has access to 1 car parking space on a separate title. Of the 13 enclosed garages, 8 are within the main building and 5 are contained within a detached rear building at the (south west) rear of the property. From the street side of the complex, only one garage door (lot 24) can be seen - but only when viewing it while standing directly in-line with the southern side driveway.

  2. Each of the 13 garages has mains power provided for internal lighting and a wall outlet. This power is individually metered against each respective lot owner's supply. The complex's main switchboard is located in an alcove along the northern (driveway) side of the main building. Power is supplied to each of the 5 lots in the rear garage building via 5 separate underground cables buried beneath the concrete driveway. This cable run is estimated to be at least 30 meters (for lot 25) from the associated main switchboard.

  3. On 27 November 2019, the respondent at the annual general meeting (the 27 November 2019 AGM) defeated a motion submitted by the applicant for…

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Details
Case
[2021] NSWCATCD 14
Decision Date

CaseChat Overview and Summary

The plaintiffs, Gisks, sought approval from the Owners Corporation of Strata Plan No. 6743 to carry out certain works on their property. This application included the installation of a balcony and the addition of a second storey to their apartment. The Owners Corporation refused to grant approval, asserting that the proposed works would infringe upon the rights of neighbouring owners and be inconsistent with the common property by-law. The plaintiffs then sought a declaration from the court that the Owners Corporation had unreasonably refused its consent to the proposed works and the making of a common property rights by-law. The case was heard in the Supreme Court of New South Wales.

The central legal issues in this case revolved around whether the Owners Corporation had acted unreasonably in denying the plaintiffs' application and whether the proposed works would violate the rights of neighbouring owners. The plaintiffs argued that the Owners Corporation's refusal was unreasonable and that the proposed works would not infringe on the rights of others. The Owners Corporation contended that the proposed works would violate the common property by-law and the rights of neighbouring owners.

The court found that the Owners Corporation had not acted unreasonably in denying the plaintiffs' application. The court held that the proposed works would result in a significant alteration of the common property, which would infringe upon the rights of neighbouring owners. The court also found that the Owners Corporation had not acted unreasonably in denying the application for the proposed by-law, as the by-law would have allowed for the construction of balconies on the common property, which was inconsistent with the existing by-law. The court further held that the proposed works would not be in the best interests of the owners corporation, as they would result in a significant alteration of the common property and potentially cause damage to neighbouring properties.

The proceedings were dismissed, and the plaintiffs' application for a declaration that the Owners Corporation had unreasonably refused its consent to the proposed works and the making of a common property rights by-law was denied. The court held that the Owners Corporation had not acted unreasonably in denying the plaintiffs' application and that the proposed works would infringe upon the rights of neighbouring owners. The court also held that the proposed by-law was inconsistent with the existing by-law and would not be in the best interests of the owners corporation. The plaintiffs' application was dismissed in its entirety.

Orders

Orders of the court

(1) The proceedings are dismissed.

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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