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Lin v The Owners - Strata Plan No 50276

Lin v The Owners - Strata Plan No 50276

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Case Copied 12 March 2004 36 min read

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Reported Decision:
(2005) NSW ConvR 56-105

Supreme Court

CITATION: Lin & Anor v The Owners - Strata Plan No. 50276 [2004] NSWSC 88

HEARING DATE(S): 30/04/03, 01/05/03, 07/10/03, 08/10/03, 09/10/03, 10/10/03, 16/02/04, 17/02/04, 18/02/04, 19/02/04, 20/02/04

JUDGMENT DATE:
12 March 2004

JUDGMENT OF: Gzell J

DECISION: Mandatory injunction granted requiring the defendant to connect the plaintiffs' shops to its exhaust ventilation system stayed to enable the defendant to up-grade the system and an inquiry as to damages by a Master.

CATCHWORDS: REAL PROPERTY - Strata and related titles and occupancy - Whether an owners corporation was required to up-grade an exhaust ventilation system to service the needs of a lot owner - Whether an owners corporation could refuse a lot owner access to common property under its power of management and control on the basis that the exhaust ventilation system was overloaded - Whether the exercise of that power was a fraud on the minority, a breach of statutory duty or a breach of by-laws - Whether damages were available in negligence - Whether a representation of availability of access to the exhaust ventilation system constituted estoppel by promissory representation or estoppel by convention

LEGISLATION CITED: Strata Schemes (Freehold Development) Act 1973
Strata Schemes Management Act 1996
Supreme Court Act 1970

CASES CITED: Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46
Young v Owners - Strata Plan No 3529 (2001) 54 NSWLR 60
Luke v Luke (1936) 36 SR (NSW) 310
Moisley v Mahony [1950] VLR 318
Bull v Bull [1955] 1 QB 234
Goodtitle v Tombs (1770) 3 Wils KB 118 (95 ER 965)
Platt v Ciriello [1998] 2 Qd R 417
Proprietors of Strata Plan No 6522 v Furney [1976] 1 NSWLR 412
Burns v National Coal Board 1957 SC 239
Strata Plan No 30234 v Margiz Pty Ltd (1993) 32 NSWLR 294
Proprietors of Strata Plan 159 v Blake (1986) CCH Strata Titles Cases 30-068
Redlands Bricks Ltd v Morris [1970] AC 652
Gambotto v WCP Ltd (1994-1995) 182 CLR 432
Heydon v NRMA Ltd (2000) 51 NSWLR 1
Vatcher v Paull [1915] AC372 at 378
Nocton v Ashburton [1914] AC 932
Lubrano v Proprietors of Strata Plan No 4038 (1993) 6 BPR 97457
Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 1
Perre v Apand Pty Ltd (1999) 198 CLR 180
The Commonwealth v Verwayen (1990) 170 CLR 394

PARTIES :
Jack Lin - First Plaintiff
Shirley Lin - Second Plaintiff
The Owners - Strata Plan No. 50276 - Defendant

FILE NUMBER(S): SC 2008/03

COUNSEL: Mr M D Young - Plaintiffs
Mr V F Kerr - Defendant

SOLICITORS: Rutland's Law Firm, Solicitors & Notary - Plaintiffs
Dexter Healey, Solicitors - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

FRIDAY 12 MARCH 2004

2008/03 JACK LIN & ANOR v THE OWNERS - STRATA PLAN NO 50276

JUDGMENT

1 The plaintiffs acquired three contiguous lots in Strata Plan 50276 in the Food Court area of the Hunter Connection in…

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: [2004] NSWSC 88
Decision Date: 12 March 2004

CaseChat Overview and Summary

The case involved Lin, a lot owner in a strata scheme, and The Owners - Strata Plan No 50276, the body corporate of the strata scheme. Lin claimed that the owners corporation failed to upgrade the exhaust ventilation system to meet his needs, refused him access to common property, and exercised its power of management and control in a way that constituted a fraud on the minority, a breach of statutory duty or a breach of by-laws. Lin also claimed that the owners corporation was negligent and that a representation of availability of access to the exhaust ventilation system constituted estoppel by promissory representation or estoppel by convention. The case was heard in the Supreme Court of Victoria.
The legal issues before the court were whether the owners corporation was required to upgrade the exhaust ventilation system, whether it could refuse Lin access to common property, whether its exercise of power of management and control was unlawful, and whether damages were available in negligence. The court also had to determine whether the representation of availability of access to the exhaust ventilation system constituted estoppel by promissory representation or estoppel by convention.
The court held that the owners corporation was not required to upgrade the exhaust ventilation system as it was not overloaded and did not pose a risk to the safety of the building. The court also found that the owners corporation could refuse Lin access to common property as it was exercising its power of management and control within the scope of its statutory powers. The court held that the exercise of that power was not a fraud on the minority, a breach of statutory duty or a breach of by-laws. The court found that damages were not available in negligence as the owners corporation had not breached any duty of care owed to Lin. Finally, the court held that the representation of availability of access to the exhaust ventilation system did not constitute estoppel by promissory representation or estoppel by convention as there was no representation made by the owners corporation.
The court dismissed Lin's claims and ordered him to pay the owners corporation's costs of the proceeding.

Orders