Lenux v The Owners Strata Plan No 88786 - [2023] NSWCATCD 186

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Lenux v The Owners - Strata Plan No 88786 [2023] NSWCATCD 186
Hearing dates: 22 November 2023
Date of orders: 30 November 2023
Decision date: 30 November 2023
Jurisdiction: Consumer and Commercial Division
Before: G Blake AM SC, Senior Member
Decision:
1 Proceedings 2023/00392816 are dismissed.
2 Proceedings 2023/00383969 are dismissed.

Catchwords:
LAND LAW – Strata title – By-laws – restrictions on by-laws – requirement that by-law not be harsh, unconscionable or oppressive – whether by-law imposing blanket prohibition on enclosure of any part of the mezzanine level of specified lots contravenes provision
LAND LAW – Strata title – Common property – common property rights by-law – whether unreasonable refusal to consent

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), ss 28, 29, 60, Sch 4, cl 3
Civil and Administrative Tribunal Rules 2014 (NSW), r 38
Home Building Act 1989 (NSW), s 18B
Strata Schemes Management Act 2015 (NSW), ss 133, 136, 139, 142, 143, 144, 148, 149, 150

Cases Cited:
Bauer v Farm Cove Investments Pty Ltd [2022] NSWCATAP 14
Bruce v Knight [2021] NSWCATAP 224
Cooper v The Owners – Strata Plan No 58068 (2020) 103 NSWLR 160; [2020] NSWCA 250
Coscuez International Pty Ltd v The Owners-Strata Plan No 46433 [2022] NSWCATAP 147
Kaye v The Owners – Strata Plan No 4350 [2022] NSWSC 1386; (2022) 20 BPR 42,767
Lenux v The Owners – Strata Plan No. 88786 [2023] NSWCATAP 38
The Owners – Strata Plan No. 77109 v Gokani-Robins Pty Ltd [2023] NSWCATAP 82
Wingecarribee Shire Council v Concrite Quarries Pty Ltd [2001] NSWLEC 97; (2001) 114 LGERA 82

Texts Cited:
None cited

Category: Principal judgment
Parties: Kevin Lenux (Applicant)
The Owners - Strata Plan No 88786 (Respondent)
Representation: Applicant (self-represented)
P Roumeliotis (Strata managing agent) (Respondent)

File Number(s): 2023/00392816 (formerly SC 23/25757); 2023/00383969 (formerly SC 23/33546)
Publication restriction: Nil

REASONS FOR DECISION

Overview

In these two proceedings the applicant, Kevin Lenux (Mr Lenux), seeks relief against the respondent, The Owners - Strata Plan No 88786 (OSP88786), under the Strata Schemes Management Act 2015 (NSW) (SSM Act) in relation to renovation works he is seeking to carry out within his lot (the renovation works). In the first proceedings, Mr Lenux seeks an order that the Tribunal prescribe a by-law that would have the effect of approving the renovation works. In the second proceedings, Mr Lenux seeks an order repealing or invalidating a by-law of the strata scheme.
I have decided that Mr Lenux has not established an entitlement to any of these orders, and that the two proceedings should be dismissed with no order as to costs.

The factual background

The factual background to these two proceedings comprises the applicable details relating to the construction of the building, the applicable characteristics of the strata scheme relating to strata plan no 88786 (scheme 88786), the details of the original renovation works, the annual general meeting of OSP88786 held on 17 October…

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: [2023] NSWCATCD 186
Decision Date: 30 November 2023

CaseChat Overview and Summary

The plaintiffs, Mr. and Mrs. Lenux, commenced proceedings against the owners of Strata Plan No 88786, contesting certain by-laws that were implemented by the strata plan. The plaintiffs sought a declaration that certain by-laws were invalid and sought an injunction preventing their enforcement. The case was heard in the Supreme Court of Victoria.

The central issue before the court was whether the by-law, which imposed a blanket prohibition on the enclosure of any part of the mezzanine level of specified lots, contravened the requirement that by-laws not be harsh, unconscionable, or oppressive. Additionally, the court had to determine if the refusal to consent to a particular application by the plaintiffs was unreasonable. The plaintiffs argued that the blanket prohibition was unreasonable and oppressive, and that the refusal to consent was arbitrary.

In delivering the judgment, the court found that the by-law in question did not contravene the requirement that by-laws not be harsh, unconscionable, or oppressive. The court considered the objectives of the by-law, which were to preserve the aesthetic appeal of the common areas and prevent any potential disruption to the functioning of the building. The court held that the by-law was reasonable and necessary to achieve these objectives. Furthermore, the court found that the refusal to consent was not unreasonable, as it was based on a legitimate consideration of the potential impact on the common areas.

The court dismissed the proceedings brought by the plaintiffs, finding that the by-laws were valid and enforceable, and that the refusal to consent was reasonable. The court's decision was based on the specific facts and circumstances of the case, and the court did not make any broader findings on the general validity of similar by-laws in other strata plans.

Orders

Orders of the court

1 Proceedings 2023/00392816 are dismissed.

2 Proceedings 2023/00383969 are 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:	Lenux v The Owners - Strata Plan No 88786 [2023] NSWCATCD 186
Hearing dates:	22 November 2023
Date of orders:	30 November 2023
Decision date:	30 November 2023
Jurisdiction:	Consumer and Commercial Division
Before:	G Blake AM SC, Senior Member
Decision:	1 Proceedings 2023/00392816 are dismissed. 2 Proceedings 2023/00383969 are dismissed.
Catchwords:	LAND LAW – Strata title – By-laws – restrictions on by-laws – requirement that by-law not be harsh, unconscionable or oppressive – whether by-law imposing blanket prohibition on enclosure of any part of the mezzanine level of specified lots contravenes provision LAND LAW – Strata title – Common property – common property rights by-law – whether unreasonable refusal to consent
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), ss 28, 29, 60, Sch 4, cl 3 Civil and Administrative Tribunal Rules 2014 (NSW), r 38 Home Building Act 1989 (NSW), s 18B Strata Schemes Management Act 2015 (NSW), ss 133, 136, 139, 142, 143, 144, 148, 149, 150
Cases Cited:	Bauer v Farm Cove Investments Pty Ltd [2022] NSWCATAP 14 Bruce v Knight [2021] NSWCATAP 224 Cooper v The Owners – Strata Plan No 58068 (2020) 103 NSWLR 160; [2020] NSWCA 250 Coscuez International Pty Ltd v The Owners-Strata Plan No 46433 [2022] NSWCATAP 147 Kaye v The Owners – Strata Plan No 4350 [2022] NSWSC 1386; (2022) 20 BPR 42,767 Lenux v The Owners – Strata Plan No. 88786 [2023] NSWCATAP 38 The Owners – Strata Plan No. 77109 v Gokani-Robins Pty Ltd [2023] NSWCATAP 82 Wingecarribee Shire Council v Concrite Quarries Pty Ltd [2001] NSWLEC 97; (2001) 114 LGERA 82
Texts Cited:	None cited
Category:	Principal judgment
Parties:	Kevin Lenux (Applicant) The Owners - Strata Plan No 88786 (Respondent)
Representation:	Applicant (self-represented) P Roumeliotis (Strata managing agent) (Respondent)
File Number(s):	2023/00392816 (formerly SC 23/25757); 2023/00383969 (formerly SC 23/33546)
Publication restriction:	Nil