JORDAN -v- VAN SCHOUBROECK [2005] WASCA 120

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASCA 120
Court:	THE COURT OF APPEAL (WA)
Case No:	FUL:83/2004	Heard:	3 JUNE 2005
Coram:	WHEELER JA ROBERTS-SMITH JA LE MIERE AJA	Delivered:	1/07/05
No of pages:	14	Judgment Part:	1 of 1
Result:	Appeal allowed The order of the learned Commissioner be set aside Action remitted to District Court for further hearing
Category:	B
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Parties:	MARIKO JORDAN PETER GERARD VAN SCHOUBROECK
Catchwords:	Strata titles Appeal from decision of Commissioner of the District Court dismissing appeal against determination of Strata Titles Referee Whether balconies formed part of the common property Strata Titles Act 1966, s 5(1) Boundaries of each lot to be determined by reference to strata plan
Legislation:	Interpretation Act 1984 Strata Titles Act 1966 Strata Titles Act 1985 Transfer of Land Act 1893
Case References:	Nil Collins v Peter Janus and Stella Janus [2001] WADC 186 Godfrey v Russell (1999) 21 SR(WA) 229 Hamilton v Thompson (1999) 23 SR(WA) 41 Owners Corporation v Dervish [2003] NSWCTTT 768 Stevens M described as the Owners Corporation Strata Plan No 14452 (SB99/197) v Chapman C [1999] NSWSSB 65

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : JORDAN -v- VAN SCHOUBROECK [2005] WASCA 120 CORAM : WHEELER JA

ROBERTS-SMITH JA

LE MIERE AJA

HEARD : 3 JUNE 2005 DELIVERED : 1 JULY 2005 FILE NO/S : FUL 83 of 2004 MATTER : Strata Titles Act BETWEEN : MARIKO JORDAN

Appellant

AND

PETER GERARD VAN SCHOUBROECK

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : COMMISSIONER GREAVES

Citation : JORDAN v VAN SHOUBROECK [2004] WADC 101

File No : APP 20 of 2003

Result : Appeal dismissed

(Page 2)

Catchwords:

Strata titles - Appeal from decision of Commissioner of the District Court dismissing appeal against determination of Strata Titles Referee - Whether balconies formed part of the common property - Strata Titles Act 1966, s 5(1) - Boundaries of each lot to be determined by reference to strata plan

Legislation:

Interpretation Act 1984

Strata Titles Act 1966
Strata Titles Act 1985
Transfer of Land Act 1893

Result:

Appeal allowed

The order of the learned Commissioner be set aside
Action remitted to District Court for further hearing

Category: B

Representation:

Counsel:

Appellant : Mr R Guerrini

Respondent : Mr P A Monaco

Solicitors:

Appellant : Vincent Partners

Respondent : Godfrey Virtue & Co

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

Nil

(Page 3)

Case(s) also cited:

Collins v Peter Janus and Stella Janus [2001] WADC 186
Godfrey v Russell (1999) 21 SR(WA) 229
Hamilton v Thompson (1999) 23 SR(WA) 41
Owners Corporation v Dervish [2003] NSWCTTT 768
Stevens M described as the Owners Corporation Strata Plan No 14452 (SB99/197) v Chapman C [1999] NSWSSB 65

(Page 4)

1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Le Miere AJA. I agree with those…

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 Jordan v Van Schoubroeck

Details

AGLC: Jordan v Van Schoubroeck [2005] WASCA 120
Case: [2005] WASCA 120
Decision Date: 1 JULY 2005

CaseChat Overview and Summary

The case of Jordan v Van Schoubroeck involved a dispute between the appellant and the respondent regarding the ownership of balconies within a strata titled property. The matter originated in the District Court, where the Commissioner dismissed the appellant's appeal against a determination made by the Strata Titles Referee. The crux of the dispute was whether the balconies formed part of the common property under the Strata Titles Act 1966. The appellant argued that the balconies were not included in the common property, while the respondent contended that they were.

The court was required to determine whether the balconies were properly classified as common property, as per the statutory definition in section 5(1) of the Strata Titles Act 1966. The court needed to ascertain whether the boundaries of each lot, as depicted in the strata plan, included the balconies. The resolution of this issue was pivotal, as it would dictate the extent of ownership and the responsibilities of the parties concerning the maintenance and use of the balconies.

In its reasoning, the court found that the determination of the boundaries of each lot, including the balconies, must be based on the strata plan. The court held that the interpretation of the strata plan was a question of law and fact, which the Commissioner had not properly addressed. Consequently, the court set aside the order of the Commissioner and allowed the appeal. The matter was remitted to the District Court for a further hearing to correctly determine the boundaries and the status of the balconies within the strata titled property.

Orders

Orders of the court

Appeal allowed

The order of the learned Commissioner be set aside

Action remitted to District Court for further hearing

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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