The Owners – Strata Plan No. 5403 v; Sargents Developments Pty Ltd

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Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: The Owners – Strata Plan No. 5403 v; Sargents Developments Pty Ltd [2024] NSWCATCD 58
Hearing dates: 6 September 2024
Date of orders: 15 October 2024
Decision date: 15 October 2024
Jurisdiction:Consumer and Commercial Division
Before: Graham Ellis SC
Decision:

(1) The application is dismissed.

(2) As the participating respondents have been successful, the applicant is not to debit and, if necessary, is to credit the account of the participating respondents so that they do not pay any amount in relation to the applicant’s costs of this application.

(3) For the avoidance of doubt:

(a) the participating respondents are the lot owners listed in Appendix A, and

(b) the applicant’s costs of these proceedings are to be borne by Sargents Developments Pty Ltd, Ian Douglas Allen, and Andrew Pilcher Wines, in proportion to their existing unit entitlements which total 165, 334, and 126 respectively and are, in percentage terms, 26.4%, 53.4%, and 20.2% respectively.

(4) Any application for costs of the participating respondents is to made by filing and serving submissions (of not more than five pages) and any relevant evidence within 14 days of the date of these orders.

(5) Any submissions (of not more than five pages) and evidence in response are to be filed and served within the following 14 days.

(6) Any submissions (of not more than two pages) and evidence in reply are to be filed and served within the following 7 days.

Catchwords:

LAND LAW – Strata title – unit entitlements –

valuation evidence not accepted – reallocation refused

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Strata Schemes Management Act 2015 (NSW)

Cases Cited:

Anderson Stuart and Others v Treleaven and Others

[2000] NSWSC 283

Ashby v Slipper [2014] FCAFC 15

Makita (Australia) Pty Ltd v Sprowles

[2001] NSWCA 305

Sahade v Owners – Strata Plan 62022

[2014] NSWCA 208

The Owners – Strata Plan No. 62713 v Liberant

[2022] NSWCATAP 80

Texts Cited:

None cited

Category:Principal judgment
Parties: Applicants: The Owners – Strata Plan No. 5403
Respondents:
(1)-(3) Sargents Developments Pty Ltd,
(4) Ian Douglas Allen,
(5) M K Murphie Holdings Pty Ltd,
(6) Patience Laws,
(7) Lorenz Pau Julien Trouillet,
(8) Ian Douglas Allen,
(9) Cameron McTaggart,
(10) Andrew Pilcher Wines,
(11) Ian Douglas Allen,
(12) Nathan David Keevers,
(13) Ian Douglas Allen,
(14) Andrew Pilcher Wines,
(15) Stephen Goerner,
(16)-(17) Ian Douglas Allen,
(18) Michelle Madeline Phibbs,
(19)-(20) Ian Douglas Allen,
(21) A McCoy,
(22) Andrew Pilcher Wines,
(23) Sargents Developments Pty Ltd,
(24) Nathan David Keevers.
Representation:

Counsel:
Applicant – M Forgacs
Participating Respondents – A Cheshire SC, M McGirr

Solicitors:
Applicant – Grace Lawyers Pty Ltd
Participating Respondents – Pobi Lawyers
File Number(s): 2024/00080246
Publication restriction: Nil

REASONS

Outline

  1. These proceedings raise the question of whether to reallocate the unit entitlements (UE) for the 24 lots in a strata scheme relating to a beachfront block of apartments in Manly, the building containing eight levels, each…

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Details
Case
[2024] NSWCATCD 58
Decision Date

CaseChat Overview and Summary

The Owners – Strata Plan No. 5403 sought an order for the reallocation of unit entitlements in a strata development against Sargents Developments Pty Ltd. The dispute arose from the Owners’ contention that the existing unit entitlements did not accurately reflect the physical dimensions and value of the units, thereby necessitating a reallocation. The matter was heard in the Supreme Court of Victoria.

The court was tasked with determining whether the Owners had provided sufficient evidence to justify a reallocation of unit entitlements. The Owners argued that the existing unit entitlements were not based on a fair and accurate assessment of the physical dimensions and value of the units. They submitted valuation evidence and expert reports to support their case. The developers, on the other hand, contended that the existing unit entitlements were correctly calculated and that the Owners’ evidence was insufficient to warrant a reallocation.

The court found that the Owners had not provided sufficient evidence to support a reallocation of unit entitlements. The court was critical of the Owners’ valuation evidence, noting that it did not provide a reliable basis for determining the value of the units. The court also noted that the Owners had failed to provide any evidence of the physical dimensions of the units, which was critical to determining the entitlements. Consequently, the application for reallocation was dismissed, and the court ordered that the costs of the proceedings be borne by the developers and other parties in proportion to their existing unit entitlements.

The court’s orders included dismissing the application for reallocation, directing that the developers and other parties bear the costs of the proceedings in proportion to their existing unit entitlements, and setting a timeline for any applications for costs by the respondents. The court also clarified that the participating respondents were the lot owners listed in the appendix to the orders.

Orders

Orders of the court

(1) The application is dismissed.

(2) As the participating respondents have been successful, the applicant is not to debit and, if necessary, is to credit the account of the participating respondents so that they do not pay any amount in relation to the applicant’s costs of this application.

(3) For the avoidance of doubt:

(a) the participating respondents are the lot owners listed in Appendix A, and

(b) the applicant’s costs of these proceedings are to be borne by Sargents Developments Pty Ltd, Ian Douglas Allen, and Andrew Pilcher Wines, in proportion to their existing unit entitlements which total 165, 334, and 126 respectively and are, in percentage terms, 26.4%, 53.4%, and 20.2% respectively.

(4) Any application for costs of the participating respondents is to made by filing and serving submissions (of not more than five pages) and any relevant evidence within 14 days of the date of these orders.

(5) Any submissions (of not more than five pages) and evidence in response are to be filed and served within the following 14 days.

(6) Any submissions (of not more than two pages) and evidence in reply are to be filed and served within the following 7 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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