Stam v Andrews and Owners Corporation SP 49154
[2017] NSWCATCD 32
•19 April 2017
Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Stam v Andrews and Owners Corporation SP 49154 [2017] NSWCATCD 32 Hearing dates: 16 March 2017 Decision date: 19 April 2017 Jurisdiction: Consumer and Commercial Division Before: K. Ross, Senior Member Decision: 1. The owner of lot 2 is restrained from undertaking any works on common property (other than cosmetic work) without the appropriate consent of the Owners Corporation, or an order of the Tribunal.
2. The owner of lot 2 is, on or before 31 October 2017, to take all such steps and do all such things as are necessary in respect of renovations carried out and to be carried out, including without limitation requisitioning an extraordinary meeting of the Owners Corporation to consider such resolutions and special resolutions as are necessary and seeking orders of the Tribunal as may be required in the absence of such consent being granted.
3. By consent the owners of all lots in the strata scheme are to ensure that they do not park on, nor permit their invitees and contractors to park on common property.
4. The Owners Corporation is to engage an appropriately qualified expert to report, on or before 31 May 2017, on the cause of water ingress affecting the strata scheme, and to prepare a scope of works for rectification.
5. The Owners Corporation is to engage suitably qualified licensed and insured contractors to carry out the rectification works in accordance with the scope of work, on or before 30 September 2017.
6. By consent, the owner of lot 3, during the period of her ownership of the lot, is permitted to keep two cats within the lot.
Catchwords: Work on common property, special resolution Legislation Cited: Strata Schemes Management Act 2015
Civil and Administrative Tribunal Act 2013Category: Principal judgment Parties: Leanne Stam (applicant)
Owners Corporation SP 49154 &
Kevin Andrews (respondents)Representation: The applicant appeared in person
The Owners Corporation was represented by Norm Kelly
The respondent Kevin Andrews appeared in person
File Number(s): SC 16/56048 and SC 16/56050 Publication restriction: Unrestricted
REASONS FOR DECISION
Applications
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On 29 December 2016 the applicant, who is the owner of lot 3 in the 3 lot strata scheme, filed an application seeking the following orders:
orders under s 232 of the Act as follows:
“compliance with by-laws – renovations/building works in unit 2 (insurance)- blocking of driveway – parking of unit 2 and associates on common property – due to non – action of breach of by-laws, failure to maintain insurance, administration of body corporate, request for compulsory manager- use of visitors carpark for safety reasons – unit 3
section 157 – to allow unit 3 to keep an animal (2 cats) wholly within the lot.
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The applicant also filed an application for interim orders and on 5 January 2017 the Tribunal made an interim order as follows:
By consent, the owner of lot 2 (Kevin Andrews) shall cease all building/renovation work that effects the common property until such work has been approved by a general meeting of the Owners Corporation, until the application for substantive orders has been determined or until 5 April 2017, whichever first occurs.”
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In the documents which she filed with the Tribunal the applicant amended the orders sought as follows:
An order pursuant to s 241 to direct the owner of lot 2 to provide information to the schemes insurance broker, and to provide to a general meeting a legally prepared by-law for a special resolution regarding the renovation works
Should all contractors/trades not hold current licenses, an order for reinstatement of the common property
An order that the owner of lot 2 remove the shed erected on common property
An order that the owner of lot 2 remove the shutters erected on common property
An order prohibiting the owner of lot 2 or their invitees or contractors parking on common property
An order prohibiting the owner of any lot or their invitees or contractors parking on the common property in the area referred to as the visitors carpark
An order that the applicant be permitted to keep two cats on her lot.
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At the hearing the applicant also sought an order in respect of a glass enclosure on lot 1, which the applicant alleges has been erected without a special resolution by-law. She said that a managing agent was required because the Owners Corporation is not functioning effectively, and has failed to address leaks from the first floor balcony, and the roof, affecting her lot. She seeks an order that the Owners Corporation reimburse her for the costs incurred in respect of this application.
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The owner of lot 1 opposes the orders sought. On behalf of the Owners Corporation he said that verbal consent had been given for the owner of lot 2 to carry out renovations affecting common property, and said that a meeting on 17 January 2017 had confirmed that approval. He acknowledged that the applicant had voted against the motions. He said that his glass enclosure in his lot had been in situ since the development was constructed. He said that the visitor parking area was a requirement of the DA.
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He also said that the applicant had, with him, been a member of the executive committee since 2013. At the meeting in July 2015 she was elected as the complex maintenance person, whilst he was elected as secretary Chairman and treasurer. He alleged that these proceedings were motivated by the applicant’s realisation that she was “one of three and not solely in control”.
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He said that the applicant alleges that there is a leak from the balcony, but he believes that if there is a problem, it would be easily fixed. He alleges that the applicant won’t let him fix it.
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The owner of lot 2 seeks an order revoking the interim order. He said that he had carried out some renovation work, comprising replacement of timber flooring, waterproofing and tiling in the upstairs bathroom, installation of a structural beam in the upper level, and kitchen improvements. He still had other work to do, being the installation of a shower screen and mirror and replacement of exhaust fan upstairs, and renovation of the bathroom downstairs. He had relied upon the approval given to him verbally at a meeting when he first moved in to the complex in 2016. He said he had provided engineering details for removal of the beam as requested. He had also provided waterproofing certificates. He is anxious to have this matter resolved.
In respect of each issue
Renovations/building works in unit 2
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Section 111 of the Act provides as follows:
An owner of a lot in a strata scheme must not carry out work on the common property unless the owner is authorised to do so:
(a) under this Part, or
(b) under a by-law made under this Part or a common property rights by-law, or
(c) by an approval of the Owners Corporation given by special resolution or in any other manner authorised by the by-laws.
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Section 109 of the Act provides that an owner may carry out cosmetic work in connection with the lot owner’s lot without the consent of the Owners Corporation:
“Cosmetic work" includes but is not limited to work for the following purposes:
(a) installing or replacing hooks, nails or screws for hanging paintings and other things on walls,
(b) installing or replacing handrails,
(c) painting,
(d) filling minor holes and cracks in internal walls,
(e) laying carpet,
(f) installing or replacing built-in wardrobes,
(g) installing or replacing internal blinds and curtains,
(h) any other work prescribed by the regulations for the purposes of this subsection.
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This section does not apply to the following:
(a) work that consists of minor renovations for the purposes of section 110,
(b) work involving structural changes,
(c) work that changes the external appearance of a lot, including the installation of an external access ramp,
(d) work that detrimentally affects the safety of a lot or common property, including fire safety systems,
(e) work involving waterproofing or the plumbing or exhaust system of a building in a strata scheme,
(f) work involving reconfiguring walls,
(g) work for which consent or another approval is required under any other Act,
(h) any other work prescribed by the regulations for the purposes of this subsection.
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Section 110 provides:
110 Minor renovations by owners
(1) The owner of a lot in a strata scheme may carry out work for the purposes of minor renovations to common property in connection with the owner’s lot with the approval of the Owners Corporation given by resolution at a general meeting. A special resolution authorising the work is not required.
(2) The approval may be subject to reasonable conditions imposed by the Owners Corporation and cannot be unreasonably withheld by the Owners Corporation.
(3) "Minor renovations" include but are not limited to work for the purposes of the following:
(a) renovating a kitchen,
(b) changing recessed light fittings,
(c) installing or replacing wood or other hard floors,
(d) installing or replacing wiring or cabling or power or access points,
(e) work involving reconfiguring walls,
(f) any other work prescribed by the regulations for the purposes of this subsection.
(4) Before obtaining the approval of the Owners Corporation, an owner of a lot must give written notice of proposed minor renovations to the Owners Corporation, including the following:
(a) details of the work, including copies of any plans,
(b) duration and times of the work,
(c) details of the persons carrying out the work, including qualifications to carry out the work,
(d) arrangements to manage any resulting rubbish or debris.
(5) An owner of a lot must ensure that:
(a) any damage caused to any part of the common property by the carrying out of minor renovations by or on behalf of the owner is repaired, and
(b) the minor renovations and any repairs are carried out in a competent and proper manner.
(6) The by-laws of a strata scheme may provide for the following:
(a) additional work that is to be a minor renovation for the purposes of this section,
(b) permitting the Owners Corporation to delegate its functions under this section to the strata committee.
(7) This section does not apply to the following work:
(a) work that consists of cosmetic work for the purposes of section 109,
(b) work involving structural changes,
(c) work that changes the external appearance of a lot, including the installation of an external access ramp,
(d) work involving waterproofing,
(e) work for which consent or another approval is required under any other Act,
(f) work that is authorised by a by-law made under this Part or a common property rights by-law,
(g) any other work prescribed by the regulations for the purposes of this subsection.
(8) Section 108 does not apply to minor renovations carried out in accordance with this section.
Note : Section 132 enables rectification orders to be made against owners of lots for damage caused by work done by owners.
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It follows that the lot owner did not require the consent of the Owners Corporation for the cosmetic work, as defined in s 109 of the Act, which he has carried out or intends to carry out. However he required the consent of the Owners Corporation in general meeting for the minor renovations (installing the flooring and renovating the kitchen) and needed to comply with s 109 (4) by providing the details set out therein, before he carried out the work.
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In respect of the waterproofing and replacement of the beam, the lot owner needed to comply with s 108:
108 Changes to common property
(1) Procedure for authorising changes to common property An Owners Corporation or an owner of a lot in a strata scheme may add to the common property, alter the common property or erect a new structure on common property for the purpose of improving or enhancing the common property.
(2) Any such action may be taken by the Owners Corporation or owner only if a special resolution has first been passed by the Owners Corporation that specifically authorises the taking of the particular action proposed.
(3) Ongoing maintenance A special resolution under this section that authorises action to be taken in relation to the common property by an owner of a lot may specify whether the ongoing maintenance of the common property once the action has been taken is the responsibility of the Owners Corporation or the owner.
(4) If a special resolution under this section does not specify who has the ongoing maintenance of the common property concerned, the Owners Corporation has the responsibility for the ongoing maintenance.
(5) A special resolution under this section that allows an owner of a lot to take action in relation to certain common property and provides that the ongoing maintenance of that common property after the action is taken is the responsibility of the owner has no effect unless:
(a) the Owners Corporation obtains the written consent of the owner to the making of a by-law to provide for the maintenance of the common property by the owner, and
(b) the Owners Corporation makes the by-law.
(6) The by-law:
(a) may require, for the maintenance of the common property, the payment of money by the owner at specified times or as determined by the Owners Corporation, and
(b) must not be amended or repealed unless the Owners Corporation has obtained the written consent of the owner concerned.
(7) Sections 143 (2), 144 (2) and (3) and 145 apply to a by-law made for the purposes of this section in the same way as they apply to a common property rights by-law.
Note : A new by-law or other changes to the by-laws for a strata scheme must be approved by a special resolution of the Owners Corporation (see section 141).
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The lot owner needed a special resolution of the Owners Corporation to authorise him to carry out work which was neither minor work nor cosmetic work. The special resolution needed to indicate whether the lot owner or the Owners Corporation was to be responsible for the ongoing maintenance of the work, and if the lot owner was to be responsible, a by-law must also have been made.
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It was not contested that no such special resolution has been obtained.
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In order now to regularise the matter:
An extraordinary meeting of the Owners Corporation needs to be convened to consider a special resolution as to whether to approve the waterproofing work carried out to date and the replacement of the beam, and to consider approval for the further waterproofing work proposed;
In respect of that work, the meeting needs to consider the matters set out in s 108 (3), (4) and (5) of the Act, including considering a properly drawn by-law if appropriate.
The meeting also needs to consider an ordinary resolution to approve the minor works carried out or to be carried out, including the renovation of the kitchen and the laying of the flooring. The motion needs to include the information in s 110 (4).
If the Owners Corporation refuses to consent to the work, the lot owner may file an application with the Tribunal, seeking an order under s 126 of the Act.
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The Tribunal notes that at the meeting held on 17 January 2017, there is no evidence that the information required by s 110 (4) was provided to the meeting, and no evidence of any discussion in respect of whether the Owners Corporation or the lot owner was to be responsible for the maintenance of the common property following the changes to the beam and waterproofing, nor any consideration of an appropriate by-law if required. In any application by the owner of lot 2 for an order under s 126, these matters would need to be addressed.
The shutters - Lot 2
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The owner of lot 2 alleges that the shutters are not visible from outside the lot, but the applicant provided a photo which shows that they are. The shutters are an alteration made to common property, and as they change the external appearance of the lot, they are excluded from the definition of cosmetic work. They do not fall within the definition of minor work. They accordingly require a special resolution, and should be included in the resolution of work for which consent is now sought.
Reinstatement of common property
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The Tribunal is not satisfied that an order should be made for reinstatement of the common property, in respect of the internal renovation works and the shutters, unless the matter cannot be regularised in accordance with paragraphs 16 and 18 of this decision.
The shed – Lot 2
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The applicant seeks that the owner of lot 2 remove the shed erected in his courtyard, on the basis that the area is common property. However the plan includes a notation which attached the symbol for courtyard to a note “part lot 2”. The Tribunal is satisfied that the courtyard forms part of the lot, to a depth of 7 metres below and a height of 2.2 meters above except where covered. The lot owner does not need the consent of the Owners Corporation to have the shed in his courtyard.
Insurance
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The applicant alleges that the works carried out on lot 2 have placed the insurance for the scheme at risk. She provides a copy of an email from the insurance broker. That email indicated that the policy excludes works where the contract value exceeds $275,000. It also excludes faulty design, materials or workmanship. There is no evidence of the value of the contract works and no evidence of any faulty design, materials or workmanship. The Tribunal is not satisfied that the works carried out by the owner of lot 2 have had any effect on the insurance for the scheme and declines to make the order sought.
Glass enclosure on lot 1
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The applicant raised concerns that there is a by-law in respect of the glass enclosure on lot 2, but no by-law for a similar enclosure on lot 1. The owner of that lot was the developer of the scheme and has owned his lot for more than 20 years. He gave evidence that the glass enclosure on lot 1 was an original part of the construction, whereas the glass enclosure on lot 2 was added after registration of the plan. There is no evidence to the contrary before the Tribunal. The Tribunal is not satisfied that there is any irregularity in respect of the glass enclosure on lot 2.
Parking and use of driveway including “visitor’s car park”
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The applicant alleges that the owners of lots 1 and 2, and their invitees park from time to time on common property. At the hearing all parties agreed that parking on the driveway is a breach of the by-laws and all undertook not to do so. The Tribunal will make an order by consent in respect of this issue.
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On the DA plans for the scheme a visitor car park was shown on common property. However that visitor car park does not appear on the strata plan. The Tribunal is not satisfied, in the absence of the visitor car park appearing on the plan, that it has been lawfully created as a visitor car park and should not be used as such unless the plan is amended.
Consent for the applicant to keep 2 cats wholly within lot 3.
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The applicant seeks the consent of the Owners Corporation to keep two cats within her lot. At the meeting on 17 January 2017 the Owners Corporation gave consent for the applicant to keep two cats on the lot, restricted to the lifetime of the applicant’s current cats. During the hearing the respondents indicated that they have no objection to the applicant having two cats on the lot, without the restriction imposed in the meeting. The Tribunal will make an order to that effect by consent.
Revocation of interim order
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The interim order ceases to have effect on the determination of the substantive application unless it has previously lapsed. However, as the Tribunal is satisfied that the applicant does not have the appropriate consent to carry out the renovation works, the Tribunal will order that no works be carried out unless and until the passing of the relevant resolutions, or the making of an order under s 126 if appropriate.
Repairs
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The applicant alleges that the Owners Corporation has failed to make effective repairs to prevent water ingress into her lot. At the hearing the respondents each indicated a willingness to carry out repairs, but disputed the extent of repairs required. The Tribunal is satisfied that the appropriate order is an order requiring the Owners Corporation to instruct a properly qualified expert to investigate and report on the leaks and to provide a scope of works for the rectification. The Owners Corporation must use appropriately qualified and insured tradesmen to carry out any such work required.
Appointment of strata managing agent
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The applicant submits that a strata manager should be appointed to manage all the functions of the Owners Corporation. She highlights a number of failings, including a failure to ensure compliance with by-laws, failure to implement a 10 year plan, late payment of accounts, a difficulty in having repairs carried out, and a breakdown in communication between lot owners. However she does not provide the consent of a strata manager, nor the details of the basis on which any such person might accept appointment. In these circumstances the Tribunal is unable to make the order sought.
Costs
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The applicant seeks an order for payment of the out of pocket expenses she incurred in bringing this application, on the basis that she says that the application ought to have been brought by the Owners Corporation. The other lot owners oppose the application for costs.
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The matter of costs is governed by the Civil and Administrative Tribunal Act 2013, which provides that unless there are special circumstances, each party bears his or her own costs in the Tribunal. The Tribunal is not satisfied that the circumstances relied upon by the applicant amount to special circumstances and declines to make the cost order sought.
Orders
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The owner of lot 2 is restrained from undertaking any works on common property (other than cosmetic work) without the appropriate consent of the Owners Corporation, or an order of the Tribunal.
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The owner of lot 2 is, on or before 31 October 2017, to take all such steps and do all such things as are necessary in respect of renovations carried out and to be carried out, including without limitation requisitioning an extraordinary meeting of the Owners Corporation to consider such resolutions and special resolutions as are necessary and seeking orders of the Tribunal as may be required in the absence of such consent being granted.
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By consent the owners of all lots in the strata scheme are to ensure that they do not park on, nor permit their invitees and contractors to park on common property.
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The Owners Corporation is to engage an appropriately qualified expert to report, on or before 31 May 2017, on the cause of water ingress affecting the strata scheme, and to prepare a scope of works for rectification.
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The Owners Corporation is to engage suitably qualified licensed and insured contractors to carry out the rectification works in accordance with the scope of work, on or before 30 September 2017.
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By consent, the owner of lot 3, during the period of her ownership of the lot, is permitted to keep two cats within the lot.
K Ross
Senior Member
Civil and Administrative Tribunal of NSW
19 April 2017
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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
Decision last updated: 07 June 2017
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