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Symes v SP 31731

Symes v SP 31731

Case [2001] NSWSC 527 27 June 2001

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CITATION: Symes v SP 31731 [2001] NSWSC 527

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 1987/00

HEARING DATE(S): 26/04/01, 27/04/01, 01/05/01

JUDGMENT DATE:
27 June 2001

PARTIES :

Douglas Symes - Appellant
The Proprietors Strata Plan No 31731 - Respondent

JUDGMENT OF: Barrett J

LOWER COURT
JURISDICTION : Strata Titles Board

LOWER COURT
FILE NUMBER(S) : 128/86/96

LOWER COURT
JUDICIAL OFFICER : Magistrate Orchiston

COUNSEL : Mr M.D. Young/Mr R.J. Kelly - Appellant
Mr M.A. Bradford - Respondent

SOLICITORS: David Le Page - Appellant
Alex Ilkin & Co - Respondent

CATCHWORDS: REAL PROPERTY - Strata and related titles - Body corporate's duty to keep common property in good and serviceable repair - Whether wall entirely within lot is common property - Whether wall on boundary between lots is common property - Whether floor tiles entirely within lot are common property - PRACTICE AND PROCEDURE - Appeal by way of stated case - Question of law arising on stated case - Whether particular items are common property is question of law - Whether there was evidence of fact found - When determination affected by erroneous decision of law need not be remitted

LEGISLATION CITED: Strata Titles (Freehold Development) Act 1973
Strata Schemes Management (Miscellaneous Amendments) Act 1996
Strata Schemes Management Act 1996
Justices Act 1902
Justices Amendment (Appeals) Act 1998
Statute Law (Miscellaneous Provisions) Act (No 2) 2000
Local Government Act 1919

CASES CITED: Ex parte Anderson (1920) 20 SR (NSW) 207
Wheeler v Cahill (1943) 61 WN (NSW) 1
Cook v Evans (1948) 65 WN (NSW) 289
Allen v Kerr (1995) Aust Torts Reports 81-354
Waterloo Holdings Pty Ltd v Timso (NSWCA, 18 August 1997, unreported)
Glover v Macdougall [1976] 2 NSWLR 359
Proprietors of Strata Plan No 6522 v Furney [1976] 1 NSWLR 412
Simons v Body Corporate Strata Plan No 5181 [1980] VR 103
North Wind v Proprietors Strata Plan 3143 [1981] 2 NSWLR 809
Burgchard v Holroyd Municipal Council [1984] 2 NSWLR 164
Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46
Hunyor v Tilelli (McLelland CJ in Eq, 24 April 1997, unreported)
Coulton v Holcombe (1986) 162 CLR 1
George Hudson Ltd v Australian Workers' Union (1923) 32 CLR 413
Mitchell v Nestle Australia Ltd (1988) 36 ACrimR 119
Ex parte Shara; re Cox (1956) 73 WN (NSW) 283

DECISION: Appeal dismissed with costs

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

WEDNESDAY, 27 JUNE 2001

1987/2000 - SYMES v THE PROPRIETORS STRATA PLAN NO 31731

JUDGMENT

HIS HONOUR:
Background and jurisdiction

1 The appellant appeals to the Court from orders made by a Strata Titles Board (constituted by a magistrate) on 30 April 1997 upon an appeal to that Board from an order made by the Strata Titles Commissioner on 1 March 1996. The appeal to the Board was initiated under s.128 of the Strata Titles (Freehold Development) Act 1973 appearing in Part 5 of that Act.

2 Part 5 of the Strata Titles (Freehold Development) Act 1973 was…

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 Symes v SP 31731

Details

AGLC: Symes v SP 31731 [2001] NSWSC 527
Case: [2001] NSWSC 527
Decision Date: 27 June 2001

CaseChat Overview and Summary

In Symes v SP 31731, the dispute arose between a body corporate and a lot owner over the maintenance and repair responsibilities for certain elements within a strata scheme. The conflict centred on whether specific elements, including a wall, floor tiles, and a wall on the boundary between two lots, were deemed common property, thereby obligating the body corporate to maintain them. This case was heard in the Supreme Court of New South Wales, which was called upon to clarify the scope of the body corporate's duties under the Strata Titles Act 1985.

The central legal issue before the court was to determine whether the disputed elements constituted common property. This required an examination of the definitions and provisions within the Strata Titles Act, specifically sections 97 and 101. The court was tasked with resolving whether these sections mandated the body corporate to maintain and repair the wall, boundary wall, and floor tiles. The decision hinged on interpreting the Act to ascertain whether these elements were integral parts of the common property.

The court's reasoning was grounded in statutory interpretation, focusing on the precise definitions and legislative intent. The Supreme Court determined that the particular items in question were indeed common property, as they were integral parts of the common areas or necessary for the functioning of the common property. The court held that the body corporate had the duty to maintain these elements, as they were essential for the upkeep and serviceability of the common property. The decision clarified that certain items, even if entirely within a lot, could still be considered common property if they served a common function. The court emphasised that the interpretation of such statutory provisions was a question of law, which did not necessitate a remittal for factual findings if the legal determination was erroneous.

Consequently, the court dismissed the appeal, affirming that the body corporate had the obligation to maintain and repair the contested elements. The decision underscored the importance of statutory interpretation in resolving disputes over common property responsibilities within strata schemes. The final orders upheld the body corporate's duty to maintain the wall, boundary wall, and floor tiles as part of the common property.

Orders