Linney v The Owners - Strata Plan No. 11669 - [2021] NSWCATCD 123

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Linney v The Owners - Strata Plan No. 11669 [2021] NSWCATCD 123
Hearing dates: 28 July 2021
Date of orders: 8 December 2021
Decision date: 08 December 2021
Jurisdiction: Consumer and Commercial Division
Before: G Sarginson, Senior Member
Decision:
1. By 31 January 2022, The Owners-Strata Plan No 11669 is to perform, using suitably licensed tradespersons exercising due care and skill, the following repairs to a common property bathroom bulkhead proximate to Lot 4 of the strata scheme:
(a) Repair damaged bulkhead (timber frame area).
(b) Tape and set all joins and apply base coat (x 1).
(c) Apply paint top coats (x 2).
(d) Paint to match existing area.
2. The owner of Lot 4 is to take all reasonable measures to ensure that reasonable access to the Lot is given to The Owners-Strata Plan No 11669 so that Order 1 above can be complied with.
3. By 31 January 2022, The Owners-Strata Plan No 11669 is to record in the strata roll the by-laws for the time being in force for the strata scheme in accordance with s 178 (2) (e) of the Strata Schemes Management Act 2015 (NSW).
4. The application is otherwise dismissed.

Catchwords:
LAND LAW — Strata schemes — Conduct of annual general meeting — Whether breach of ss 24 and/or 25 of the Strata Schemes Management Act 2015 (NSW) established — Content of strata roll — Whether compliant — Removal of strata committee member from office — Whether grounds for removal established — Common property of strata scheme —Duty to maintain and repair — Whether duty breached

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW)
Strata Schemes Development Act 2015 (NSW)
Strata Schemes Management Act 2015 (NSW)
Strata Schemes Management Regulation 2016 (NSW)
Strata Titles Act 1973 (NSW)

Cases Cited:
Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425
McCue v The Owners - Strata Plan No 38444 [2021] NSWCATCD 35
Read v The Owners - Strata Plan No 2533 [2021] NSWCATAP 218

Texts Cited:
Nil

Category: Principal judgment
Parties: Gayle Marie Linney (Applicant)
The Owners-Strata Plan No 11669 (First Respondent)
Susanne Parks (Second Respondent)
Representation:
M Kuskis (Applicant)
G Lumley (First and Second Respondent)
Solicitors:
Kerin Benson Lawyers (First and Second Respondent)

File Number(s): SC 21/11877
Publication restriction: Nil

REASONS FOR DECISION

This is an application by a Lot owner in a strata scheme for various orders under the Strata Schemes Management Act 2015 (NSW) (‘the SSMA’).
The applicant is the owner of Lot 4. The strata scheme is located on the northern beaches of Sydney, NSW. The strata scheme comprises of 8 Lots. The applicant and Mr Kuskis do not reside in the strata scheme, with their Lot being rented for the purpose of investment.
The applicant seeks the following orders of the Tribunal:

Orders under ss 24 and 25 of the SSMA in respect of the Annual General Meeting of the owners corporation on 24 August 2020 invalidating all…

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: [2021] NSWCATCD 123
Decision Date: 08 December 2021

CaseChat Overview and Summary

Linney v The Owners - Strata Plan No. 11669 was a case brought before the Supreme Court of New South Wales, where the plaintiff, Mr. Linney, sought relief against the defendants, The Owners - Strata Plan No. 11669. Mr. Linney alleged breaches of the Strata Schemes Management Act 2015 (NSW) and sought declarations and orders concerning the conduct of the annual general meeting, the content of the strata roll, the removal of a strata committee member, and the duty to maintain and repair common property.

The central legal issues in the case involved whether there had been a breach of sections 24 and/or 25 of the Strata Schemes Management Act 2015 (NSW), which pertain to the conduct of the annual general meeting and the content of the strata roll, respectively. Additionally, the court had to determine if there were sufficient grounds to remove a member of the strata committee and if the duty to maintain and repair the common property had been breached.

The court examined the conduct of the annual general meeting and found that while there were procedural irregularities, they did not reach the threshold of a breach warranting the court's intervention. Regarding the strata roll, the court determined that it was not compliant with statutory requirements but did not find this to be a breach of the Act sufficient to warrant the court's intervention in this instance. The court also found that the grounds for the removal of the strata committee member were not established as per the Act. Finally, the court held that the duty to maintain and repair the common property had indeed been breached, and specific orders were made to remedy this.

The final orders included requiring The Owners-Strata Plan No 11669 to perform certain repairs to a common property bathroom bulkhead, ensuring the owner of Lot 4 provides access for these repairs, and recording the by-laws in the strata roll. The application was dismissed in all other respects.

Orders

Orders of the court

1. By 31 January 2022, The Owners-Strata Plan No 11669 is to perform, using suitably licensed tradespersons exercising due care and skill, the following repairs to a common property bathroom bulkhead proximate to Lot 4 of the strata scheme:

(a) Repair damaged bulkhead (timber frame area).

(b) Tape and set all joins and apply base coat (x 1).

(d) Paint to match existing area.

2. The owner of Lot 4 is to take all reasonable measures to ensure that reasonable access to the Lot is given to The Owners-Strata Plan No 11669 so that Order 1 above can be complied with.

3. By 31 January 2022, The Owners-Strata Plan No 11669 is to record in the strata roll the by-laws for the time being in force for the strata scheme in accordance with s 178 (2) (e) of the Strata Schemes Management Act 2015 (NSW).

4. 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:	Linney v The Owners - Strata Plan No. 11669 [2021] NSWCATCD 123
Hearing dates:	28 July 2021
Date of orders:	8 December 2021
Decision date:	08 December 2021
Jurisdiction:	Consumer and Commercial Division
Before:	G Sarginson, Senior Member
Decision:	1. By 31 January 2022, The Owners-Strata Plan No 11669 is to perform, using suitably licensed tradespersons exercising due care and skill, the following repairs to a common property bathroom bulkhead proximate to Lot 4 of the strata scheme: (a) Repair damaged bulkhead (timber frame area). (b) Tape and set all joins and apply base coat (x 1). (c) Apply paint top coats (x 2). (d) Paint to match existing area. 2. The owner of Lot 4 is to take all reasonable measures to ensure that reasonable access to the Lot is given to The Owners-Strata Plan No 11669 so that Order 1 above can be complied with. 3. By 31 January 2022, The Owners-Strata Plan No 11669 is to record in the strata roll the by-laws for the time being in force for the strata scheme in accordance with s 178 (2) (e) of the Strata Schemes Management Act 2015 (NSW). 4. The application is otherwise dismissed.
Catchwords:	LAND LAW — Strata schemes — Conduct of annual general meeting — Whether breach of ss 24 and/or 25 of the Strata Schemes Management Act 2015 (NSW) established — Content of strata roll — Whether compliant — Removal of strata committee member from office — Whether grounds for removal established — Common property of strata scheme —Duty to maintain and repair — Whether duty breached
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Strata Schemes Development Act 2015 (NSW) Strata Schemes Management Act 2015 (NSW) Strata Schemes Management Regulation 2016 (NSW) Strata Titles Act 1973 (NSW)
Cases Cited:	Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425 McCue v The Owners - Strata Plan No 38444 [2021] NSWCATCD 35 Read v The Owners - Strata Plan No 2533 [2021] NSWCATAP 218
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Gayle Marie Linney (Applicant) The Owners-Strata Plan No 11669 (First Respondent) Susanne Parks (Second Respondent)
Representation:	M Kuskis (Applicant) G Lumley (First and Second Respondent) Solicitors: Kerin Benson Lawyers (First and Second Respondent)
File Number(s):	SC 21/11877
Publication restriction:	Nil