The Owners Strata Plan No 2245 v Veney - [2020] NSWSC 134

Supreme Court

New South Wales

Medium Neutral Citation: The Owners Strata Plan No 2245 v Veney [2020] NSWSC 134
Hearing dates: 5 February 2020; 12 February 2020
Date of orders: 27 February 2020
Decision date: 27 February 2020
Jurisdiction: Equity
Before: Darke J
Decision:
Summons is dismissed with costs.

Catchwords:
LAND LAW – strata title – by-laws – construction – special by-law conferring right upon lot owner to use part of common property for parking – whether right conferred in substitution for right of lot owner to park in existing parking lot – use of extrinsic circumstances as an aid to construction – cautionary approach – special by-law construed so that right conferred is not in substitution for owner’s right to park in existing lot
LAND LAW – strata title – obligations of owners and occupiers – whether parking by lot owner in parking lot causes a nuisance to other occupiers of lots – inconvenience also caused by presence of gardens on common property – parking on lot held not to amount to a nuisance – not an unreasonable interference with the rights of other owners or occupiers of lots – Strata Schemes Management Act 2015 (NSW), s 153(1)(a)
Legislation Cited: Strata Schemes (Freehold Development) Act 1973 (NSW)
Strata Schemes Management Act 2015 (NSW), s 153(1)(a)
Strata Schemes Management Act 1996 (NSW)
Cases Cited: Cannell v Barton [2014] NSWCATCD 103
EB 9 & 10 Pty Ltd v The Owners – Strata Plan No 934 (2018) 97 NSWLR 227; [2018] NSWSC 464
Elston v Dore (1982) 149 CLR 480
Gisks v The Owners – Strata Plan No 6743 [2019] NSWCATCD 44
Hargrave v Goldman (1963) 110 CLR 40
Sedleigh-Denfield v O’Callaghan [1940] AC 880
The Owners of Strata Plan No 3397 v Tate (2007) 70 NSWLR 344; [2007] NSWCA 207
Category: Principal judgment
Parties: The Owners Strata Plan No 2245 (Plaintiff)
Allan Veney (Defendant)
Representation:
Counsel:
Mr A E Maroya (Plaintiff)
Mr H Jewell (Defendant)
Solicitors:
Taitz Solicitors (Plaintiff)

File Number(s): 2019/242472
Publication restriction: None

Judgment

Introduction

By its Summons filed on 5 August 2019 the plaintiff, the Owners Corporation of strata scheme No 2245, seeks declaratory relief in relation to the proper construction of a Special By-Law, and injunctive relief to prevent the defendant, Mr Veney, from parking any motor vehicle in his Lot 51 in the strata scheme.
The strata scheme, which is located in Dover Heights, was established in 1966. The scheme includes 50 lots (lots 1-50) which may be described as home units or residential lots. The other 50 lots (lots 51-100) are much smaller spaces (some of which are under cover, and some five of which are enclosed garages), evidently intended to be used as car parking spaces.
Mr Veney is the owner of residential Lot 33 and parking Lot 51.
It appears that the dimensions and location of at least some of the parking lots has contributed to deficiencies in the suitability of the lots for parking. That is the case in relation…

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 The Owners Strata Plan No 2245 v Veney 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: [2020] NSWSC 134
Decision Date: 27 February 2020

CaseChat Overview and Summary

The case of The Owners Strata Plan No 2245 v Veney involved a dispute within a strata titled property concerning the interpretation of a special by-law and the obligations of lot owners regarding parking and nuisance. The dispute was heard in the Supreme Court of New South Wales. The plaintiff, the body corporate representing the strata plan, sought to enforce certain by-laws against the defendant, a lot owner, who had parked his vehicle in a designated parking lot within the strata scheme. The defendant argued that the special by-law, which conferred a right to use part of the common property for parking, was not intended to replace the right to park in the existing parking lot, and that his parking did not constitute a nuisance under the Strata Schemes Management Act 2015 (NSW).

The court was required to determine the proper construction of the special by-law and whether the defendant's parking constituted a nuisance under the Act. The court held that the by-law was to be construed in a manner that did not result in the substitution of one right for another, and that the defendant's parking did not amount to a nuisance. The court found that the defendant's parking did not constitute an unreasonable interference with the rights of other owners or occupiers of lots, despite the presence of gardens on the common property causing some inconvenience. The court emphasised the importance of a cautious approach when using extrinsic circumstances to aid in the construction of the by-law, and that the by-law should be interpreted in a way that gives effect to the intention of the parties.

The court's decision was that the special by-law was not intended to replace the right to park in the existing parking lot, and that the defendant's parking did not constitute a nuisance. The court dismissed the plaintiff's claims and made no orders. This case provides useful guidance for lot owners and body corporates in strata titled properties regarding the interpretation of by-laws and the obligations of lot owners in relation to parking and nuisance.

Orders