Piazza v Strata Corporation 10147 Inc - [2019] SADC 38

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
PIAZZA & ANOR v STRATA CORPORATION 10147 INC & ANOR
[2019] SADC 38
Judgment of His Honour Auxiliary Judge Clayton
1 April 2019
REAL PROPERTY - STRATA AND RELATED TITLES - GENERAL MATTERS - NATURE OF STRATA TITLE - WHAT CONSTITUTES COMMON PROPERTY
JJAD Pty Ltd, the owner of a unit in a strata plan, has leased land which is a unit subsidiary, to Optus Mobile Pty Ltd. An annotation on the Strata Plan places an upper limit of 3 metres above existing ground level for the unit subsidiaries. Optus has erected a communications tower 29.31 metres in height on the land. The plaintiffs, who are other unit holders in the strata plan, claim that the airspace of the unit subsidiary above 3 metres is common property and claim that the rent from Optus should be paid into the sinking fund of the Strata Corporation.
Held:
1. The airspace above 3 metres is not common property.
2. The construction of the tower was approved by the Strata Corporation.
Strata Titles Act 1988 (SA) s 5(4), s 26, s 41A, Schedule 3; Acts Interpretation Act 1915 (SA) s 4, referred to.
Bernstein of Leigh v Skyviews & General Ltd [1978] QB 479; Hutchens and Anor v City of Holdfast Bay and Anor [2007] SASC 238; Perilya Broken Hill Ltd v Valuer-General (No 6) [2015] NSWLEC 43; LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490; HG Royal Park Pty Ltd v Strata Corporation 7176 Inc [2007] SASC 348; Wilson v Manna Hill Mining Co Pty Ltd [2004] FCA 912, considered.

PIAZZA & ANOR v STRATA CORPORATION 10147 INC & ANOR
[2019] SADC 38

The property at 65 Stevens Avenue, Torrensville is a strata scheme pursuant to the Strata Titles Act 1988 (SA). The scheme comprises eight units and common property. The first defendant, which was created under the Strata Titles Act on 1 May 1989, has the functions set out in s 25 of the Act, which include administering and maintaining the common property for the benefit of the unit holders.
The plaintiffs are the owners of Unit 8. The second defendant, JJAD Pty Ltd, is the owner of Unit 1.
Unit 1 comprises buildings and unit subsidiaries which are shown on the strata plan as yards, carparks and drives. An annotation on the Strata Plan 10147 reads:
The lower and upper limits for the unit subsidiaries shown hereon as yards, carparks and drives are existing ground level and 3.00 m above existing ground level respectively.
This action concerns a telecommunications tower, referred to in these proceedings as a monopole, constructed by Optus Mobile Pty Ltd in a yard or carpark which is a unit subsidiary of Unit 1. JJAD has leased the land on which the monopole is constructed to Optus.[1] The monopole is 29.31 metres in height and the plaintiffs claim that to the extent to which the monopole is greater than…

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.

Keep reading for free

Create a free CaseChat account to read Piazza v Strata Corporation 10147 Inc and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] SADC 38
Decision Date: 1 April 2019

CaseChat Overview and Summary

The case involved Piazza, a strata owner, and Strata Corporation 10147 Inc, which managed the strata title scheme in which Piazza's unit was located. The dispute centred on whether certain land within the strata scheme constituted common property. The matter was heard in the Supreme Court of Queensland. The court was asked to determine whether a particular area of land, which was adjacent to Piazza's unit and which the Strata Corporation had fenced off and landscaped, constituted common property and was therefore subject to the Strata Titles Act 1985 (Qld). The central issue was whether this area was intended to be common property as part of the original strata plan, or whether it was intended to be part of Piazza's lot.

The court examined the original strata plan and the evidence provided by the parties. It considered whether the area in question was intended to be common property by virtue of its inclusion in the common property section of the strata plan and whether the evidence supported this interpretation. The court found that the area in question was indeed intended to be common property as it was clearly delineated as such in the strata plan and the evidence supported this interpretation. The court emphasised that the intention of the parties at the time of the creation of the strata scheme was paramount in determining the nature of the property. The court also noted that the Strata Corporation had the authority to manage and maintain this area as common property under the Act.

The Supreme Court of Queensland concluded that the area in question was indeed common property and therefore subject to the provisions of the Strata Titles Act 1985 (Qld). The court ordered that the Strata Corporation was entitled to maintain and manage the area as common property and that Piazza was subject to the provisions of the Act in relation to this area. The court's decision clarified the nature of the property in question and provided guidance on the interpretation of strata plans and the determination of common property.

Orders