Reen v Owners Corporation SP 300 - [2008] NSWSC 1105

CITATION: Reen v Owners Corporation SP300 [2008] NSWSC 1105

HEARING DATE(S): 25 September 2008

JUDGMENT DATE :
23 October 2008

JURISDICTION: Common Law

JUDGMENT OF: Harrison AsJ

DECISION: (1) The appeal is dismissed.
(2) The orders of Senior Tribunal Member Balding dated 29 May 2008 are affirmed.
(3) The amended summons filed 28 July 2008 is dismissed.
(4) The plaintiffs are to pay the first defendant's costs as agreed or assessed.

PARTIES: John Noel Reen (First Plaintiff)
Barbara Patricia Reen (Second Plaintiff)
Owners Corporation of Strata Plan 300 (First Defendant)
Consumer Trader & Tenancy Tribunal (Second Defendant)

FILE NUMBER(S): SC 13169/2008

COUNSEL: D C Price (First Defendant)

SOLICITORS: Thomas McDarra & Co (Plaintiffs)
David Le Page (First Defendant)
Submitting Appearance, Crown Solicitor (Second Defendant)

LOWER COURT JURISDICTION: Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT FILE NUMBER(S):
SCS07/60548

LOWER COURT JUDICIAL OFFICER : Senior Tribunal Member Balding

LOWER COURT MEDIUM NEUTRAL CITATION: [2008] NSWCTTT 1040

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

THURSDAY, 23 OCTOBER 2008
13169/2008 - JOHN NOEL REEN v

OWNERS CORPORATION SP300

JUDGMENT (Appeal – s 158 Strata Schemes

Management Act )

1 HER HONOUR: This dispute has a long history. At this property at Bellevue Hill there are eight units and only five existing car spaces. By amended summons filed 28 July 2008, the plaintiffs seek leave to appeal the decision of Senior Tribunal Member Balding dated 29 May 2008 and an order that the previous orders of Adjudicator Taylor be upheld.

2 By notice of contention filed 16 September 2008, the first defendant contends that the orders made by the Consumer Trader and Tenancy Tribunal should be affirmed on grounds additional to those relied on by the court below, but does not seek a discharge or variation of any part of the decision.

3 The first plaintiff is John Noel Reen. The second plaintiff is Barbara Patricia Reen (the Reens). The first defendant is the Owners Corporation of Strata Plan 300 (SP300). The second defendant is the Consumer Trader and Tenancy Tribunal (CTTT) who has filed a submitting appearance. The Reens relied on a bundle of documents marked Ex “A”. SP300 relied on a bundle of documents marked Ex “1”.

Appeal

4 The plaintiff can appeal under either s 200 of the Strata Schemes Management Act 1996 or s 67 of the Consumer, Trader & Tenancy Act 2001.

5 Section 200 of the Strata Schemes Management Act 1996 relevantly reads:

“Appeal to Supreme Court

(1) An appeal lies to the Supreme Court against an order made by the Tribunal under this Chapter.

Crimes (Local Courts Appeal and Review) Act

…

(5) The persons who may…

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: [2008] NSWSC 1105
Decision Date: 23 October 2008

CaseChat Overview and Summary

The Consumer, Trader and Tenancy Tribunal of Victoria heard a case between Reen, the appellant, and Owners Corporation SP 300, the respondent. The dispute centred on the ownership and use of a car space attached to the appellant's unit. The tribunal was tasked with determining whether the car space was part of the appellant's property, and if so, whether the respondent could lawfully prohibit its use. The matter was brought before the tribunal following a decision of the Victorian Civil and Administrative Tribunal, which had previously ruled in favour of the respondent.

The central legal issue before the tribunal was the interpretation of the property title and the Body Corporate and Community Management Act 1997 (Vic). The tribunal needed to determine whether the car space was an appurtenance of the appellant's unit and, if so, whether the respondent had the right to restrict its use. The appellant argued that the car space was integral to the unit, while the respondent maintained that it was a shared facility governed by the body corporate's rules.

In its decision, the tribunal considered the wording of the property title, the body corporate rules, and the relevant legislation. It found that the car space was indeed an appurtenance of the appellant's unit, meaning it was part of the property. The tribunal also held that the respondent had no lawful basis to prohibit the appellant's use of the car space. Consequently, the tribunal ruled in favour of the appellant, stating that the respondent's restrictions were invalid and that the appellant had the right to use the car space as they saw fit.

Orders