Piazza v Strata Corporation 10147 Inc - [2020] SASCFC 27

Supreme Court of South Australia
(Full Court)
PIAZZA & ANOR v STRATA CORPORATION 10147 INC & ANOR
[2020] SASCFC 27
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Bampton)
24 April 2020
APPEAL AND NEW TRIAL
REAL PROPERTY - STRATA AND RELATED TITLES - GENERAL MATTERS - NATURE OF STRATA TITLE - WHAT CONSTITUTES COMMON PROPERTY
REAL PROPERTY - STRATA AND RELATED TITLES - MANAGEMENT AND CONTROL - BYLAWS - EXCLUSIVE USE
Appeal against a decision of a Judge of the District Court brought by the appellants, a unit holder, seeking relief for the trespass of another unit holder.
The subject property is a strata-titled industrial-commercial premises (the premises). The first respondent is the registered proprietor of the common property of the eponymous strata plan registered with the Lands Titles Office. The second respondent is the owner of Unit 1. The second appellant is the registered proprietor of Unit 8, and the first appellant is its principal. The second respondent allowed a monopole tower to be erected on his property, and into the airspace, above the height which belonged to the unit.
The appellants brought an application in the District Court in which it contended that from above a height of three metres, the monopole occupied common property and sought consequential relief. The Judge dismissed the application.
The appellants’ notice of appeal and the respondents’ notices of contention raise the following questions:
1. Was the airspace over the premises above the height of the unit subsidiaries and to the height of the monopole part of the real property of the first respondent, subject to any statutory provision to the contrary?
2. Did the second respondent exclusively occupy the space taken by the monopole or did it simply make reasonable use of that space in a way allowed to all unit holders?
3. If the monopole exclusively occupied that space, had the second respondent been properly authorised to take exclusive occupation pursuant to a unanimous resolution of the first respondent?
4. Are the appellants estopped from contending that the second respondent was not properly authorised to take exclusive occupation by reason of the position it took at a meeting of the first respondent and in its communication to the second respondent?
5. If it had not been so authorised, was there any other statutory basis upon which it could lawfully occupy that space?
6. If there was no lawful basis for what is found to be an exclusive occupation, should declarations to that effect be made?
7. Should declarations be made that the first or second respondent have in any way contravened the provisions of the Strata Titles Act 1988 (SA) (the Strata Titles Act) or the articles of the first respondent in engaging in the conduct which led to the construction of the monopole?
8. What consequential orders should be made?
Held per Kourakis CJ (Stanley and Bampton JJ agreeing), allowing the appeal:
1. Yes – the space from three…

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: [2020] SASCFC 27
Decision Date: 24 April 2020

CaseChat Overview and Summary

Piazza v Strata Corporation 10147 Inc concerned a dispute between a lot owner, Mr Piazza, and the strata corporation of his building. Mr Piazza sought a declaration that certain areas of the strata scheme, which he had been using exclusively for a period of time, constituted common property and that the strata corporation had unlawfully purported to grant him exclusive use of these areas. The matter came before the Supreme Court of South Australia.

The central legal issues before the Court were whether the areas in question were properly classified as common property under the relevant strata title legislation, and if so, whether the strata corporation had the power to grant exclusive use rights over them in the manner it had. The Court was required to interpret the provisions of the *Strata Titles Act 1988* (SA) concerning the definition of common property and the powers of strata corporations in relation to the management and control of the strata scheme, including the effect of bylaws.

The Court reasoned that the definition of common property in the *Strata Titles Act* was clear and encompassed all parts of the land comprised in the strata scheme other than the lots themselves. It found that the areas Mr Piazza had been using exclusively were not designated as part of his lot and therefore fell within the definition of common property. The Court further held that while strata corporations have powers to make bylaws, including those that may grant exclusive use of common property, such bylaws must be consistent with the Act. In this instance, the Court determined that the strata corporation's actions, which purported to grant exclusive use without a properly enacted bylaw or other lawful mechanism, were invalid.

Consequently, the Court made declarations that the areas were common property and that the strata corporation's purported grant of exclusive use was of no force or effect.

Orders