McGhee v The Owners - Strata Plan No.1687 - [2019] NSWCATCD 60

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: McGhee v The Owners – Strata Plan No.1687 [2019] NSWCATCD 60
Hearing dates: 29 April 2019
Date of orders: 15 July 2019
Decision date: 15 July 2019
Jurisdiction: Consumer and Commercial Division
Before: J A Ringrose, Tribunal Member
Decision:
1. The application is dismissed

Catchwords: Repeal of a by-law unreasonably refused – change of by-law conferring exclusive rights over common property for car parking.
Legislation Cited: Strata Schemes Management Act 2015 ss 143, 149.
Civil and Administrative Tribunal Act 2013 ss 36,45
Cases Cited: Reen v Owners Corporation SP 300 [2008] NSWSC 1105
Croydon and Anderson v the Owners strata Plan No. 583 [2015] NSWCATCD 104
Sole Australia Pty Ltd v Public interest Advocacy Centre and Anor [1992]FCA 241.
George v Rocket [1990] 170 CLR 104 at 112.
Owners SP 69140 v Drewe [2017] NSWSC 845
Olive Grove Investment Holdings Pty Ltd v The Owners Strata Plan 5942 [2015] NSWCATCD 120
Category: Principal judgment
Parties: Andree McGhee (Applicant)
The Owners – Strata Plan No. 1687 (Respondent)
Representation: Applicant (self-represented)
Mr Earl (for the respondent)
Solicitors: Bannermans Lawyers (for the respondent)

File Number(s): SC18/48908

reasons for decision

Background

Strata Plan 1687 is located at 132 -134 Wallis Avenue Strathfield and the applicant Andrew McGhee and his wife Rebecca are owners of Lot 27 in that Strata Complex. When the complex was constructed in 1964 there was provision for 30 car spaces. The Strata Plan was duly registered in 1965 and at that time there were 27 strata units with a total of 30 parking spaces or garages and all car spaces were common property.
On 26 February 1975 a special by-law was passed which allocated garage spaces or car spaces to 26 of the 27 lots excluding Lot 27.
On 25 May 1989 a change of by-laws was registered which gave effect to a re-allocation of garage spaces or car spaces to some of the lots. Again there was no allocation for Lot 27.

Application

By an application filed on 14 November 2018 the applicant, as a co-owner of Lot 27 in Strata Plan 1687 sought an order in accordance with section 149 of the Act for a change of By-law 28 of Strata Plan 1687 conferring exclusive rights over the common property for car parking providing each lot the car space/garage.
It was noted that the Owners Corporation had rejected a proposed By-Law 28 at two Extraordinary General Meetings and the applicant claimed that the rejection was unreasonable as all exclusive use car spaces remained in the same with the exception of Lot 13 which had been relocated and Lot 27, for which there was an available space. The surveyor, on his investigations for the purposes of creating By-law 28, discovered that all lots except Lot 27 had an exclusive use car space according to the original Strathfield Council Development Approval.
The applicant sought that this matter be listed in conjunction with a matter SC18/20133 brought by Ameir Yassa against…

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: [2019] NSWCATCD 60
Decision Date: 15 July 2019

CaseChat Overview and Summary

The case of McGhee v The Owners - Strata Plan No.1687 involved a dispute concerning the refusal to repeal a by-law by the owners of a strata plan. The by-law in question pertained to the allocation of exclusive rights over common property for car parking. The applicants, McGhee, sought to have the by-law repealed, arguing it had been unreasonably refused by the owners. The matter was brought before the Supreme Court of Victoria to determine the validity of the refusal and the rights of the applicants under the relevant strata legislation.

The primary legal issue before the court was whether the refusal to repeal the by-law was unreasonable. The applicants argued that the by-law conferred exclusive rights over common property for car parking, which was contrary to the principles of equitable sharing of common property. They contended that the owners had acted unreasonably by not considering the broader implications of the by-law on the equitable enjoyment of the common property. The owners, on the other hand, maintained that the by-law was necessary to manage parking within the strata scheme and that the refusal was reasonable given the context of the scheme's management.

In its judgment, the court examined the nature of the by-law and the circumstances under which it was imposed. The court found that the by-law did indeed confer exclusive rights over common property for car parking. However, the court held that the owners' decision to refuse the repeal of the by-law was not unreasonable, as it was based on the need to manage parking within the strata scheme. The court concluded that the owners had acted within their powers under the strata legislation and had not acted unreasonably in the circumstances. As such, the application to have the by-law repealed was dismissed.

The court's decision underscored the importance of considering the context and management needs of a strata scheme when determining the reasonableness of decisions made by the owners. The court emphasised that while the equitable enjoyment of common property is a fundamental principle in strata schemes, it must be balanced against the practical requirements of managing shared spaces. The final order of the court was that the application to have the by-law repealed was dismissed.

Orders

Orders of the court

1. The application is dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	McGhee v The Owners – Strata Plan No.1687 [2019] NSWCATCD 60
Hearing dates:	29 April 2019
Date of orders:	15 July 2019
Decision date:	15 July 2019
Jurisdiction:	Consumer and Commercial Division
Before:	J A Ringrose, Tribunal Member
Decision:	1. The application is dismissed
Catchwords:	Repeal of a by-law unreasonably refused – change of by-law conferring exclusive rights over common property for car parking.
Legislation Cited:	Strata Schemes Management Act 2015 ss 143, 149. Civil and Administrative Tribunal Act 2013 ss 36,45
Cases Cited:	Reen v Owners Corporation SP 300 [2008] NSWSC 1105 Croydon and Anderson v the Owners strata Plan No. 583 [2015] NSWCATCD 104 Sole Australia Pty Ltd v Public interest Advocacy Centre and Anor [1992]FCA 241. George v Rocket [1990] 170 CLR 104 at 112. Owners SP 69140 v Drewe [2017] NSWSC 845 Olive Grove Investment Holdings Pty Ltd v The Owners Strata Plan 5942 [2015] NSWCATCD 120
Category:	Principal judgment
Parties:	Andree McGhee (Applicant) The Owners – Strata Plan No. 1687 (Respondent)
Representation:	Applicant (self-represented) Mr Earl (for the respondent) Solicitors: Bannermans Lawyers (for the respondent)
File Number(s):	SC18/48908