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Stolfa v Owners Strata Plan 4366 & Ors

Stolfa v Owners Strata Plan 4366 & Ors

Case [2009] NSWSC 589 26 June 2009

Adverse Possession

Common Property

Alterations to Common Property

Authorization under s 65A

Repairs and Maintenance under s 62

Implied Authorization

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CITATION: Stolfa v Owners Strata Plan 4366 & ors [2009] NSWSC 589

HEARING DATE(S): 30 April, 1 May, 31 July, 1 August and 28 October 2008

JUDGMENT DATE :
26 June 2009

JURISDICTION: Equity Division
Expedition List

JUDGMENT OF: Brereton J

DECISION: Inquiry as to damages to plaintiff’s property, for which the second and third defendants are liable. Proceedings otherwise dismissed.

CATCHWORDS: REAL PROPERTY - Strata Titles – Common property - alterations to common property constituted an improvement or enhancement to common property so as to require authorisation under s 65A - Held: work constituted repairs and maintenance under s 62 and therefore did not require special resolution - Whether work authorised by the Owners Corporation - where works not explicitly authorised by resolution of owners corporation - whether implicitly authorised - Held: owners corporation had implicitly authorised works, alternatively estopped from denying same – Whether such authorisation by the owners corporation constituted a fraud on plaintiffs - Held: the fact that the works benefited some lots more than others does not alter the fact that the works were repairs which Owners Corporation were obliged to implement – Whether works to enclose a veranda constituting common property with a specific lot within building were authorised - where defendant contends that works were for benefit of one lot within block and did not require authorisation under s 65A - Held: works constituted enhancement of common property and therefore required special resolution of owners corporation – Whether owners corporation could authorise works under s 61(1) - Held: s 61(1) only authorises the owners corporation to bring about such works as are authorised under s 62 and s 65A – Where works required authorisation by special resolution of the Owners Corporation - whether such an authorisation occurred - Held: authorisation occurred through resolution authorising enclosure of verandah, supplemented by later resolution approving plans – Alternatively, whether injunctive relief should be granted - where plans have been approved by all residents - where plaintiffs have derived a benefit from works paid for by the Owners Corporation - where a quid pro quo arrangement was reached between residents for approval of plans - where the defendants have relied on the plaintiff’s approval of plans - where no loss or damage has been suffered by the plaintiff as a result of the work – Held: injunctive relief would be declined as a matter of discretion – Whether owners corporation required to repair damage to individual lot caused by work by lot owners of other lots - Held: Court cannot order the owners corporation to undertake such repairs - damages against individual lot owners is an adequate and more convenient remedy

LEGISLATION CITED: (NSW) Strata Schemes (Freehold Development) Act 1973, s 5(7)(c), s 5(7)(d), s21
(NSW) Strata Schemes Management Act 1996 s 47, s 52, s 61(1), s 62, s63, s 63(5), s 64, s 65, s 65A, s 65A(1), s 65B, s 113, s 140

CATEGORY: Principal judgment

CASES CITED: Eventang Development (Pyrmont) Pty Ltd v…

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.

Continue reading Stolfa v Owners Strata Plan 4366 & Ors

Details

AGLC: Stolfa v Owners Strata Plan 4366 & Ors [2009] NSWSC 589
Case: [2009] NSWSC 589
Decision Date: 26 June 2009

CaseChat Overview and Summary

The case of Stolfa v Owners Strata Plan 4366 & Ors involved the plaintiffs, who were owners of a lot within a strata scheme, challenging various actions taken by the defendants, the Owners Corporation of the strata plan. The disputes arose from the Corporation's authorisation and execution of certain works on the common property, including repairs, enhancements, and the enclosure of a verandah. The plaintiffs contested the legality of these works, claiming they required special resolutions under the relevant statutory provisions and that the Corporation had not obtained such authorisations.

The legal issues that the court had to resolve included whether the works in question constituted improvements to common property that required special resolutions under section 65A of the legislation, or whether they were repairs and maintenance that could be authorised under section 62. The court also needed to determine if the Owners Corporation had, in fact, authorised the works either explicitly or implicitly, and whether any authorisation constituted a fraud on the plaintiffs. Furthermore, the court examined whether the works to enclose a verandah were enhancements to common property that necessitated a special resolution and if the Owners Corporation could lawfully authorise such works under section 61(1) of the statute.

In delivering its judgment, the court found that the works at issue were repairs and maintenance, thus falling under section 62 and not requiring a special resolution. The court held that the Owners Corporation had implicitly authorised the works, or was estopped from denying that authorisation, despite not passing an explicit resolution. The court also ruled that the benefit conferred upon some lots more than others did not change the nature of the works as repairs. Regarding the enclosure of the verandah, the court determined that this constituted an enhancement of common property, necessitating a special resolution. The court further found that the Owners Corporation could authorise such works under section 61(1), provided a special resolution had been obtained. The court also declined to grant injunctive relief, considering the discretion involved and the absence of loss or damage to the plaintiffs. Finally, the court held that the Owners Corporation was not required to repair damage to an individual lot caused by works on other lots, and that damages against the individual lot owners would be an adequate remedy.

Orders