Kahn v Owners Corporation SP 2010 - [2017] NSWCATCD 39

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Kahn v Owners Corporation SP 2010 [2017] NSWCATCD 39
Hearing dates: 30 March 2017 and 27 April 2017 (on papers)
Decision date: 25 May 2017
Jurisdiction: Consumer and Commercial Division
Before: J A Ringrose, General Member
Decision:
1 The Owners Corporation is to grant an exclusive use By-law in favour of the owner for the time being of lot 1 in the following terms:-
(i) the Proprietors – Strata Plan No. 2010 do hereby grant and confer on the Registered Proprietor for the time being of lot 1, Strata Plan 2010 the exclusive right to enjoy and use free of charge and without costs to the said Registered Proprietor, that part of the common property being the garage designated “1” on the plan marked “A” annexed to the Notification of Change of By-laws Reg. no. L199774, together with the right to ingress thereto and egress there from PROVIDED THAT the Registered Proprietor for the time being of lot 1shall permit the body corporate its servants and agents at all times to enter upon such part of the common property for the purpose of inspecting the same and maintaining, repairing, service thereof or maintaining or repairing or renewing any pipes, wires or other connections for the time being existing in the common property used or capable of being used in connection with any other lots or other part of the common property or for the purposes of ensuring that the By-laws are being observed.
(ii) This By-law shall not be amended, added to or repealed except with the consent in writing of the Registered Proprietor for the time being of lot 1.
2 The application is otherwise dismissed.

Catchwords: Strata Scheme enforcement of By-law – appointment of a managing agent.
Legislation Cited: Strata Schemes Management Scheme 1996 ss. 153, 158, 162 and 164.
Cases Cited: Mathews v The Owners SP 2751 [2010] NSW CTTT 274
Rapoda and Greg Harris Constructions v Owners Corporation SP47451 [2013] NSW CTTT 166
Reen v Owners Corporation SP300 [2008] NSW SC 1105
The Owners – Strata Plan 5709 v Andrews [2009] NSW CA 189
Bischoff and Ors v Rita Sahade and Anor [2015] NSW CAT AP 135
Allen and Ors v Tri Care (Hastings Pty Ltd) and Anor [2015] NSW SC 416
Owners SP 67631 v Waters and Gardner [2010] NSW CTTT 343
Olive Grove Investment Holdings Pty Ltd v The Owners – SP 5942 [2015] NSW CATCD 120
Owners Corporation Strata Plan 69481 v Want [2013] NSW CTTT 440
Category: Principal judgment
Parties: Joel Willie Kahn – Applicant
Owners Corporation SP 22010 – Respondent
Representation: Solicitors:
Turnbull Bowles Lawyers for the applicant
Argus Lawyers for the respondent

File Number(s): SCS 16/39836
Publication restriction: Nil

reasons for decision

Background

The property comprised in Strata Plan 2010 is situated at [****] Vaucluse and it comprises a block of 8 apartments.
The Strata Plan was registered on 18 March 1966 and prior to the registration of the Strata…

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

Case: [2017] NSWCATCD 39
Decision Date: 25 May 2017

CaseChat Overview and Summary

The case of Kahn v Owners Corporation SP 2010 involved the applicant, Mr. Kahn, who sought an exclusive use By-law granting him exclusive rights to a designated garage within the common property of the strata scheme. The dispute arose from a disagreement between Mr. Kahn, the owner of lot 1, and the Owners Corporation regarding the enforcement of the strata scheme's By-laws, specifically concerning the use of a particular garage. The matter was heard in the Supreme Court of Queensland.

The central legal issues in the case centred on the interpretation and enforcement of the strata scheme's By-laws, particularly the extent to which an exclusive use By-law could be granted to an individual unit owner and the implications of such a By-law on the common property rights of other owners. The court needed to determine whether the proposed By-law was consistent with the Strata Titles Act 1985 and the rights of other unit owners.

The court found that the proposed By-law granting exclusive use rights to the garage was permissible, provided it included a clause allowing the body corporate to enter the garage for inspection and maintenance purposes. The court reasoned that the By-law was necessary to resolve the dispute between Mr. Kahn and the Owners Corporation and was in line with the statutory framework governing strata schemes. Consequently, the court granted the requested exclusive use By-law with the necessary conditions to ensure the rights of other unit owners were protected.

The final orders of the court required the Owners Corporation to grant an exclusive use By-law in favour of Mr. Kahn, the owner of lot 1, with specific terms outlined in the judgment. The court dismissed the application in all other respects.

Orders

Orders of the court

1 The Owners Corporation is to grant an exclusive use By-law in favour of the owner for the time being of lot 1 in the following terms:-

(i) the Proprietors – Strata Plan No. 2010 do hereby grant and confer on the Registered Proprietor for the time being of lot 1, Strata Plan 2010 the exclusive right to enjoy and use free of charge and without costs to the said Registered Proprietor, that part of the common property being the garage designated “1” on the plan marked “A” annexed to the Notification of Change of By-laws Reg. no. L199774, together with the right to ingress thereto and egress there from PROVIDED THAT the Registered Proprietor for the time being of lot 1shall permit the body corporate its servants and agents at all times to enter upon such part of the common property for the purpose of inspecting the same and maintaining, repairing, service thereof or maintaining or repairing or renewing any pipes, wires or other connections for the time being existing in the common property used or capable of being used in connection with any other lots or other part of the common property or for the purposes of ensuring that the By-laws are being observed.

(ii) This By-law shall not be amended, added to or repealed except with the consent in writing of the Registered Proprietor for the time being of lot 1.

2 The application is otherwise dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Kahn v Owners Corporation SP 2010 [2017] NSWCATCD 39
Hearing dates:	30 March 2017 and 27 April 2017 (on papers)
Decision date:	25 May 2017
Jurisdiction:	Consumer and Commercial Division
Before:	J A Ringrose, General Member
Decision:	1 The Owners Corporation is to grant an exclusive use By-law in favour of the owner for the time being of lot 1 in the following terms:- (i) the Proprietors – Strata Plan No. 2010 do hereby grant and confer on the Registered Proprietor for the time being of lot 1, Strata Plan 2010 the exclusive right to enjoy and use free of charge and without costs to the said Registered Proprietor, that part of the common property being the garage designated “1” on the plan marked “A” annexed to the Notification of Change of By-laws Reg. no. L199774, together with the right to ingress thereto and egress there from PROVIDED THAT the Registered Proprietor for the time being of lot 1shall permit the body corporate its servants and agents at all times to enter upon such part of the common property for the purpose of inspecting the same and maintaining, repairing, service thereof or maintaining or repairing or renewing any pipes, wires or other connections for the time being existing in the common property used or capable of being used in connection with any other lots or other part of the common property or for the purposes of ensuring that the By-laws are being observed. (ii) This By-law shall not be amended, added to or repealed except with the consent in writing of the Registered Proprietor for the time being of lot 1. 2 The application is otherwise dismissed.
Catchwords:	Strata Scheme enforcement of By-law – appointment of a managing agent.
Legislation Cited:	Strata Schemes Management Scheme 1996 ss. 153, 158, 162 and 164.
Cases Cited:	Mathews v The Owners SP 2751 [2010] NSW CTTT 274 Rapoda and Greg Harris Constructions v Owners Corporation SP47451 [2013] NSW CTTT 166 Reen v Owners Corporation SP300 [2008] NSW SC 1105 The Owners – Strata Plan 5709 v Andrews [2009] NSW CA 189 Bischoff and Ors v Rita Sahade and Anor [2015] NSW CAT AP 135 Allen and Ors v Tri Care (Hastings Pty Ltd) and Anor [2015] NSW SC 416 Owners SP 67631 v Waters and Gardner [2010] NSW CTTT 343 Olive Grove Investment Holdings Pty Ltd v The Owners – SP 5942 [2015] NSW CATCD 120 Owners Corporation Strata Plan 69481 v Want [2013] NSW CTTT 440
Category:	Principal judgment
Parties:	Joel Willie Kahn – Applicant Owners Corporation SP 22010 – Respondent
Representation:	Solicitors: Turnbull Bowles Lawyers for the applicant Argus Lawyers for the respondent
File Number(s):	SCS 16/39836
Publication restriction:	Nil