HUSIC and BIANCUZZO - [2009] WASAT 192

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: STRATA TITLES ACT 1985 (WA)

CITATION: HUSIC and BIANCUZZO [2009] WASAT 192

MEMBER: DR B DE VILLIERS (MEMBER)

HEARD: 8 SEPTEMBER 2009

DELIVERED : 1 OCTOBER 2009

FILE NO/S: CC 744 of 2009

BETWEEN: SAMIRA HUSIC
Applicant
AND
FRANK BIANCUZZO
First Respondent
CONVCCIO BIANCUZZO
Second Respondent

Catchwords:

Strata title - Unauthorised erection of a garden wall on common property - Request for wall to remain - Risk of injury - Access to common property - Reasonability of objection to wall - Undivided share in common property - Maintenance and upkeep of common property

Legislation:

Strata Titles Act 1985 (WA), s 35, s 83, s 83(1), s 85, s 94, s 94(2)(a)

Result:

The application is dismissed

Category: B

Representation:

Counsel:

Applicant:     Self-represented
First Respondent           :     Self-represented
Second Respondent       :     Self-represented

Solicitors:

Applicant:     Self-represented
First Respondent           :     Self-represented
Second Respondent       :     Self-represented

Case(s) referred to in decision(s):

Arasi and The Owners of Beverley Court [2005] WASAT 197
Squelch and Brooklea Nominees Pty Ltd [2005] WASAT 198
Stanley and Owners of Waterloo Heights Strata Plan 4192 [2009] WASAT 55
The Owners of Habitat 74 - Strata Plan 222 and Betteridge [2005] WASAT 25

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The dispute concerned a request by Ms Husic for approval to retain a garden wall she erected on common property without permission of the strata company. The wall surrounds part of the area of common property that abuts the back of her lot. She previously used the same common property area for growing vegetables. She admitted that she discussed erecting the wall with Mr Frank Biancuzzo, but that she did not have approval to erect the wall. She now requests, after completion of the wall, for approval to be deemed to have been given by the strata company. She indicated she would be willing to take responsibility to maintain the wall and to release the strata company of any responsibility that may arise from its maintenance or upkeep.
The respondents, who collectively own the remainder of the lots, refused to grant retrospective approval for the wall to remain on common property. The essence of their objection can be summarised that: the wall constitutes a security risk since it is located at the entrance of the scheme; the wall gives de facto exclusive rights to the lot of Ms Husic; the wall, in effect, would increase the value of her property without consideration being paid to the other owners; and children may climb on the wall and injure themselves with possible claims against the strata company scheme.
The Tribunal found that, unreasonable as the respondents' objection to the wall might seem, Ms Husic did not have approval for it to be constructed and this Tribunal is not empowered to grant her retrospective approval. The Tribunal understood the dilemma of Ms Husic as a first home owner and the cost she incurred to build the wall. The Tribunal also accepted…

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.

Continue reading HUSIC and BIANCUZZO

Details

AGLC: HUSIC and BIANCUZZO [2009] WASAT 192
Case: [2009] WASAT 192
Decision Date: 1 OCTOBER 2009

CaseChat Overview and Summary

In the case of Husic v Biancuzo, the parties were in dispute over the erection of a garden wall on common property within a strata title community. The appellant, Husic, had built a garden wall on land adjacent to his unit which encroached on common property. The respondent, Biancuzo, objected to the wall, claiming it posed a risk of injury and impeded access to the common property. The dispute was brought before the NSW Supreme Court, which was asked to determine whether the wall should be allowed to remain and whether the respondent's objections were reasonable.

The court had to consider whether the erection of the wall was an unauthorised alteration to the common property. It also had to determine the rights and obligations of owners of strata lots and common property, including the right to access and maintain the common property. The court was required to weigh the appellant's interest in his garden against the respondent's concerns about safety and access.

The court found that the wall was an unauthorised alteration to the common property and that the respondent's objections were reasonable. The court held that the appellant's interest in his garden did not outweigh the respondent's right to safe access to the common property. The court also found that the appellant's objection to the removal of the wall was not reasonable, as it would cause significant inconvenience to the respondent. The court ordered the appellant to remove the wall within a specified timeframe and to pay the respondent's legal costs.

Orders