Owltown Pty Ltd v Norwinn Commercial CTS38094

Owltown Pty Ltd, the body corporate for a strata scheme, brought an appeal against a decision of the Civil and Administrative Tribunal (NCAT) in relation to the costs associated with the maintenance of an elevator in the strata scheme. The owner of the lot occupying the upper floor, Norwinn Commercial, argued that it should not be responsible for the cost of the elevator as it was not exclusively used by them. The appeal was heard in the NSW Court of Appeal.

The court was required to determine whether the owner of the lot occupying the upper floor was responsible for the cost of operating the elevator to that floor, and whether the elevator was utility infrastructure that only related to supplying utility services for that lot. The court also had to consider whether resolutions of the body corporate that rescinded exclusive use levies and resolved that the full cost of the elevator be shared between all lot owners were valid.

The court found that the owner of the lot occupying the upper floor was not solely responsible for the cost of the elevator, as the elevator was not exclusively used by them. The court also held that the elevator was not utility infrastructure that only related to supplying utility services for that lot, as it was also used by other lot owners. The court further found that the resolutions of the body corporate were valid and that the cost of the elevator should be shared between all lot owners. The appeal was allowed, the adjudicator's order was set aside, and the resolutions of the body corporate were declared void. The body corporate was ordered to refund certain levies to the owners of lots 1 to 7 and to invoice the owner of lot 8 for their share of the costs. The second respondents were ordered to pay any amounts levied on them.