Lyon v The Owners Strata Plan No 11045

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Lyon v The Owners – Strata Plan No 11045 [2023] NSWCATCD 31

Hearing dates:

17 February 2023

Date of orders:

31 March 2023

Decision date:

31 March 2023

Jurisdiction:

Consumer and Commercial Division

Before:

M Deane, Senior Member

Decision:

(1) The Owners – Strata Plan No 11045 is to take all necessary steps to require the owner of Lot 31 to comply with Special By-law 14; that is, by requiring the owner of Lot 31 to reduce the height of the pergola to 2.7 metres measured from the concrete surface of the courtyard to Lot 31.

(2) The Owners – Strata Plan No 11045 is to comply with order 1 within 6 months of the date of these orders.

(3) The Owners – Strata Plan No 11045 is to arrange for the cleaning of the wall above the pergola at lot 31 and below the windows of lot 35 within 2 months of the date of this order.

(4) Ben Swanson is removed as the second respondent.

(5) Either party may file and serve written submissions of not more than 5 pages within 14 days of the date of this decision seeking an order in relation to the costs of the proceedings.

(6) If either party files submissions in accordance with order (5), the other party may file submissions in response within a further 14 days.

(7) Any submissions filed in accordance with orders (4) and (5) must address the question whether the question of costs may be determined on the papers and without a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW)

Catchwords:

LAND LAW — Strata title — Common property — By-laws

Legislation Cited:

Strata Schemes Management Act 2015

Cases Cited:

Bate v The Owners-Strata Plan No SP 60549; Birdsall v Bate [2018] NSWCATCD 36

Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425

Owners Corporation SP 22607 v Yang [2018] NSWCATCD 3 (‘Yang’);

The Owners – Strata Plan No 5319 v Price; Price v The Owners – Strata Plan No 5319 [2019] NSWCATCD 3

The Owners - Strata Plan No 68255 v Downs; Downs v The Owners - Strata Plan No 68255 [2021] NSWCATCD 34

The Owners – Strata Plan No 74232 v Tezel [2023] NSWCA 35

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Suzanne Lyon (applicant)
The Owners – Strata Plan No 11045 (first respondent)

Representation:

Solicitors:
Applicant (self-represented)
Bannerman Lawyers (First respondent)
No appearance for second respondent

File Number(s):

SC22/39017

Publication restriction:

Nil

REASONS FOR DECISION

Background

1. The applicant, Suzanne Lyon, is the owner of Lot 35 in Strata Plan 11045, a 69 lot strata scheme in Wollstonecraft, NSW.

2. The essence of the applicant’s case was that on 26 August 2020 the OC had passed a common property by-law (Special by-law 14) allowing the owners of Lot 31 (the ground floor unit below) to build a pergola over the rear courtyard to Lot 31. The applicant…