Lipscher v The Owners - Strata Plan No 30995

The appeal before the Court of Appeal was brought by Lipscher, a unit owner in Strata Plan No 30995, against the Owners Corporation of the same strata plan. The dispute arose from a decision made by the Owners Corporation to undertake works to replace the western balustrades of Units 5, 6, 7, and 8, which was passed by a resolution at an extraordinary general meeting held on 31 March 2015. Lipscher sought to set aside the decision on the grounds that the resolution was invalid and that the replacement of the balustrades constituted new works which required a special resolution under section 65A(1) of the Strata Schemes Management Act 1996.

The primary legal issues before the Court were whether the decision of the Adjudicator, made on 9 September 2015, was correct in law and whether the replacement of the western balustrades constituted maintenance or new works. The Court also had to determine whether the admission of new evidence, which was not before the Adjudicator, was appropriate in this appeal. The Court found that the Adjudicator had erred in law in failing to consider the nature of the works being undertaken and that the replacement of the western balustrades constituted new works which required a special resolution. The Court also found that the admission of new evidence was appropriate in this case as it was necessary to determine the correct legal issue.

In allowing the appeal, the Court set aside the decision of the Adjudicator and declared the resolution passed at the extraordinary general meeting invalid. The Court further ordered that the Owners Corporation was not permitted to replace the western balustrades of Units 5, 6, 7, and 8 except to the extent that this action was authorised by a special resolution being passed at a general meeting of the Owners Corporation that specifically authorised such action as required by section 65A(1) of the Strata Schemes Management Act 1996. The appellants were to provide written submissions as to costs, if they were so advised within 28 days of the date of these orders, and the respondent and other parties were to provide submissions in reply 28 days thereafter. The issue of costs would then be determined on the papers.