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Nikitopoulos v The Owners Strata Plan No 52311

Nikitopoulos v The Owners Strata Plan No 52311

Case [2023] NSWCATCD 83 28 July 2023

Statutory Interpretation

Declaration

Common Property

Maintenance and Repair

Property Law

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Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Nikitopoulos v The Owners – Strata Plan No 52311 [2023] NSWCATCD 83
Hearing dates: 26 May 2023
Date of orders: 28 July 2023
Decision date: 28 July 2023
Jurisdiction: Consumer and Commercial Division
Before: M Deane, Senior Member
Decision:
(1) Under s 24 of the Strata Schemes Management Act 2015 the Tribunal orders that motions 3 and 4 passed at the EGM on 12 September 2022 be invalidated.
(2) Under s 150 of the Strata Schemes Management Act 2015 the Tribunal declares that Special by-law 4 of SP 52311 is invalid from the date of registration.
(3) Under s 150 of the Strata Schemes Management Act 2015 the Tribunal declares that Special by-law 5 of SP 52311 is invalid from the date of registration.
(4) In accordance with the provisions of s 246 of the Strata Schemes Management Act 2015 the Owners Corporation shall cause a certified copy of this order to be lodged with the office of the Registrar General accompanied by the Certificate of Title comprising the common property in the strata plan and any fee payable for the recording of such order such that the Tribunal order can be duly registered.
(5) The application is otherwise dismissed.

Catchwords:
LAND LAW — Strata title — By-laws
LAND LAW — Strata title — Common property — Maintenance and repair of common property

Legislation Cited:
Civil and Administrative Tribunal Act 2013
Strata Schemes Management Act 2015
Strata Schemes Management Regulation 2016

Cases Cited:
Bischoff v Sahade [2015] NSWCATAP 135
Cooper and Another v Owners – Strata Plan No 58068 [2020] NSWCA 250
Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425
Gokani-Robins Pty Ltd v The Owners – Strata Plan No 77109 [2022] NSWCATCD 164
Haramis v The Owners – Strata Plan No. 51923 [2023] NSWCATCD 15
Mortlock v Owners of Strata Plan No 55434 [2006] NSWSC 363
Noon v The Owners - Strata Plan No. 22422 [2014] NSWSC 1260
Seiwa Pty Ltd v The Owners Strata Plan 35042 [2006] NSWSC 1157
The Owners – Strata Plan 3397 v Tate [2007] NSWCA 207
The Owners – Strata Plan No 77109 v Gokani-Robins Pty Ltd [2023] NSWCATAP 82
Vickery v The Owners Strata Plan 80412 (2020) 103 NSWLR 352; [2020] NSWCA 284
Warren v The Owners Strata Plan No 61618 (SM Wilson, 26 November 2019)

Texts Cited:
nil

Category: Principal judgment
Parties: Spiros Nikitopoulos (applicant)
The Owners – Strata Plan No 52311 (respondent)
Representation: Applicant (self-represented)
F Vigouroux (strata manager, respondent)

File Number(s): SC 22/53812
Publication restriction: nil

REASONS FOR DECISION

Background

Spiros Nikitopoulos (the applicant) is the owner of Lot 2 in Strata Plan No 52311. On 5 December 2022 the applicant lodged a strata and community schemes application in the Consumer and Commercial Division of the Tribunal (CCD) seeking various orders to resolve a dispute with the Owners Corporation (the respondent).
The applicant’s grievance with the respondent revolved around rectification works to be undertaken to the common…

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.

Continue reading Nikitopoulos v The Owners Strata Plan No 52311

Details

AGLC: Nikitopoulos v The Owners Strata Plan No 52311 [2023] NSWCATCD 83
Case: [2023] NSWCATCD 83
Decision Date: 28 July 2023

CaseChat Overview and Summary

The case of Nikitopoulos v The Owners Strata Plan No 52311 involved the owner of a unit in a strata scheme, Nikitopoulos, challenging the validity of motions and by-laws passed by the owners corporation. The dispute was heard and determined by the Civil and Administrative Tribunal of New South Wales. Nikitopoulos sought to invalidate certain motions and by-laws passed by the owners corporation, arguing they were procedurally flawed and, therefore, invalid. The central legal issues before the Tribunal included whether the motions and by-laws were passed in accordance with the statutory requirements under the Strata Schemes Management Act 2015 and whether the by-laws were consistent with the provisions of the Act.

The Tribunal examined the process by which the motions and by-laws were passed and determined that the procedural requirements of the Act were not followed. Specifically, the Tribunal found that the notice of the extraordinary general meeting (EGM) was not given in the manner prescribed by the Act, and therefore, the motions were invalid. Additionally, the Tribunal found that the by-laws were invalid as they were not consistent with the Act and did not align with the rights and responsibilities of owners within the strata scheme. The Tribunal held that the by-laws placed an undue burden on the owners for the maintenance and repair of common property, which was not permissible under the statutory framework.

As a result, the Tribunal invalidated the motions passed at the EGM and the by-laws in question. The Tribunal also ordered that a certified copy of the order be lodged with the Registrar General to ensure that the order could be duly registered. The application was otherwise dismissed, meaning that other aspects of the strata scheme management were not addressed by the Tribunal's order.

Orders

Orders of the court

(1) Under s 24 of the Strata Schemes Management Act 2015 the Tribunal orders that motions 3 and 4 passed at the EGM on 12 September 2022 be invalidated.

(2) Under s 150 of the Strata Schemes Management Act 2015 the Tribunal declares that Special by-law 4 of SP 52311 is invalid from the date of registration.

(3) Under s 150 of the Strata Schemes Management Act 2015 the Tribunal declares that Special by-law 5 of SP 52311 is invalid from the date of registration.

(4) In accordance with the provisions of s 246 of the Strata Schemes Management Act 2015 the Owners Corporation shall cause a certified copy of this order to be lodged with the office of the Registrar General accompanied by the Certificate of Title comprising the common property in the strata plan and any fee payable for the recording of such order such that the Tribunal order can be duly registered.

(5) The application is otherwise 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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Citations

Nikitopoulos v The Owners Strata Plan No 52311 [2023] NSWCATCD 83

Cases Citing This Decision

No citing cases yet.

Cases Cited

Haramis v The Owners - Strata Plan No. 51923 [2023] NSWCATCD 15
Citation 1 (Para 130)

…The applicant referred to a decision of the Tribunal in Haramis v The Owners – Strata Plan No. 51923 [2023] NSWCATCD 15 (Haramis) where the Tribunal found that the OC had breached its obligations under s 106(1). The Tribunal made work orders against the OC in circumstances where the OC had denied liability for the no…
Gokani-Robins Pty Ltd v The Owners Strata Plan No 77109 [2022] NSWCATCD 164
Citation 2 (Para 55)

…sue of whether a by-law should be declared invalid under s 150 was recently considered in Gokani-Robins Pty Ltd v The Owners – Strata Plan No 77109 [2022] NSWCATCD 164 ( Gokani-Robins (CCD) ). That decision was upheld by the Appeal Panel in The Owners – Strata Plan No 77109 v Gokani-Robins Pty Ltd [2023] NSWCATAP 82 (…
Neri v The Owners Strata Plan No. 91204 [2021] NSWCATCD 164
Citation 3 (Para 112)

…gate penalty proceedings in the Tribunal to obtain redress for continued breach of the parking by-laws (see Neri v The Owners - Strata Plan No. 91204 [2021] NSWCATCD 164). The respondent has not indicated that such an approach is unwarranted or would not be undertaken. Where the respondent has evinced a willingness to…
Vickery v The Owners Strata Plan 80412 [2020] NSWCA 284
Citation 4 (Para 105)

…In Vickery v The Owners Strata Plan 80412 (2020) 103 NSWLR 352; [2020] NSWCA 284 (Vickery) Basten JA said at [28]:…
Cooper v The Owners - Strata Plan No 58068 [2020] NSWCA 250
Citation 5 (Para 2)

…son entitled to vote on the motion to make a by-law (as an owner who appears on the strata roll; Cooper and Another v Owners – Strata Plan No 58068 [2020] NSWCA 250 ( Cooper ));…
Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425
Citation 6 (Para 129)

…However, more recently, in the 2019 judgement in Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425 (Glenquarry), at [71], Parker J considered the question of how extensive the maintenance and repair works must be under the equivalent of s 106 SSMA, in the context of an application for an order for work…
Noon v The Owners - Strata Plan No. 22422 [2014] NSWSC 1260
Citation 7 (Para 89)

…servation at [71.3] that by-laws may be characterised as either delegated legislation was considered in Noon v The Owners - Strata Plan No. 22422 [2014] NSWSC 1260 ( Noon ) at [21]. Darke J described a repugnancy argument as resting upon the proposition that strata scheme by- laws may be characterised as delegated l…
The Owners of Strata Plan No 3397 v Tate [2007] NSWCA 207
Citation 8 (Para 89)

…The principles applicable to the construction of by-laws are set out in The Owners – Strata Plan 3397 v Tate [2007] NSWCA 207 at [71]-[72] ( Tate ). McColl JA’s observation at [71.3] that by-laws may be characterised as either delegated legislation was considered in Noon v The Owners - Strata Plan No. 22422 [2014]…
Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157
Citation 9 (Para 128)

…plied prior to the SSMA), is in the same terms as the wording of s 106(1) and Brereton J’s comments in Seiwa Pty Ltd v The Owners Strata Plan 35042 [2006] NSWSC 1157 (upheld on appeal) (Seiwa) at [3] are still relevant:…
Mortlock v Owners of Strata Plan No 55434 [2006] NSWSC 363
Citation 10 (Para 144)

…In Mortlock v Owners of Strata Plan No 55434 [2006] NSWSC 363 ( Mortlock ) at [18] the adjudicator whose decision was being challenged described the earlier equivalent of s 237 of the SSMA as “draconian” on the basis that it removed the democratic process established by statute.…

Legislation Cited

Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 4)
Civil Procedure Act 2005 (NSW)
1 mention (from Para 59)
Strata Schemes (Freehold Development) Act 1973 (NSW)
1 mention
Strata Schemes Management Act 1996 (NSW)
1 mention (from Para 128)
Strata Schemes Management Act 2015 (NSW)
1 mention (from Para 8)

Medium Neutral Citation:	Nikitopoulos v The Owners – Strata Plan No 52311 [2023] NSWCATCD 83
Hearing dates:	26 May 2023
Date of orders:	28 July 2023
Decision date:	28 July 2023
Jurisdiction:	Consumer and Commercial Division
Before:	M Deane, Senior Member
Decision:	(1) Under s 24 of the Strata Schemes Management Act 2015 the Tribunal orders that motions 3 and 4 passed at the EGM on 12 September 2022 be invalidated. (2) Under s 150 of the Strata Schemes Management Act 2015 the Tribunal declares that Special by-law 4 of SP 52311 is invalid from the date of registration. (3) Under s 150 of the Strata Schemes Management Act 2015 the Tribunal declares that Special by-law 5 of SP 52311 is invalid from the date of registration. (4) In accordance with the provisions of s 246 of the Strata Schemes Management Act 2015 the Owners Corporation shall cause a certified copy of this order to be lodged with the office of the Registrar General accompanied by the Certificate of Title comprising the common property in the strata plan and any fee payable for the recording of such order such that the Tribunal order can be duly registered. (5) The application is otherwise dismissed.
Catchwords:	LAND LAW — Strata title — By-laws LAND LAW — Strata title — Common property — Maintenance and repair of common property
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Strata Schemes Management Act 2015 Strata Schemes Management Regulation 2016
Cases Cited:	Bischoff v Sahade [2015] NSWCATAP 135 Cooper and Another v Owners – Strata Plan No 58068 [2020] NSWCA 250 Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425 Gokani-Robins Pty Ltd v The Owners – Strata Plan No 77109 [2022] NSWCATCD 164 Haramis v The Owners – Strata Plan No. 51923 [2023] NSWCATCD 15 Mortlock v Owners of Strata Plan No 55434 [2006] NSWSC 363 Noon v The Owners - Strata Plan No. 22422 [2014] NSWSC 1260 Seiwa Pty Ltd v The Owners Strata Plan 35042 [2006] NSWSC 1157 The Owners – Strata Plan 3397 v Tate [2007] NSWCA 207 The Owners – Strata Plan No 77109 v Gokani-Robins Pty Ltd [2023] NSWCATAP 82 Vickery v The Owners Strata Plan 80412 (2020) 103 NSWLR 352; [2020] NSWCA 284 Warren v The Owners Strata Plan No 61618 (SM Wilson, 26 November 2019)
Texts Cited:	nil
Category:	Principal judgment
Parties:	Spiros Nikitopoulos (applicant) The Owners – Strata Plan No 52311 (respondent)
Representation:	Applicant (self-represented) F Vigouroux (strata manager, respondent)
File Number(s):	SC 22/53812
Publication restriction:	nil