The Owners Strata Plan No 60182 v Bornzin - [2019] NSWCATCD 30

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: The Owners - Strata Plan No 60182 v Bornzin [2019] NSWCATCD 30
Hearing dates: 18 September 2018
Date of orders: 28 March 2019
Decision date: 28 March 2019
Jurisdiction: Consumer and Commercial Division
Before: G J Sarginson, Senior Member
Decision:
1. Application dismissed.

2. Any costs application by the respondent is to be made in writing to the Tribunal supported by written submissions not exceeding 5 pages and with a copy sent to the other party on or before 14 days from the date of this decision. The submission is to include reference as to whether the party submits to the issue of costs being determined without a further oral hearing under s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW).

3. If any costs application is made, the applicant is to file and serve written submissions in reply on the issue of costs not exceeding 5 pages on or before 14 days thereafter.
4. Subject to the submissions of the parties, the Tribunal may determine the issue of costs on the papers in accordance with s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW
Catchwords: STRATA SCHEMES---Orders under Strata Scheme Management Act 1996 (NSW)---Operation of savings and transitional provisions under Strata Schemes Management Act 2015 (NSW)---Whether orders expired---Whether Lot owner had failed to comply with orders---Whether owners corporation should be granted access to perform work
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Community Land Management Act 1999 (NSW)
Home Building Act 1989 (NSW)
Interpretation Act 1987 (NSW),
Strata Schemes (Freehold Development) Act 1973 (NSW)
Strata Schemes Management Act 1996 (NSW)
Strata Schemes Management Act 2015 (NSW)
Cases Cited: Balafoutis & Ors v The Owners-Strata Plan No 76536 [2016] NSWCATCD 83
Bellingen Shire Council v Colavon Pty Ltd [2012] NSWCA 34
Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 188 CLR 144
Lavery v Dimension Tilers Pty Ltd [2015] NSWCATCD 59.
Moellem v Consumer Trader and Tenancy Tribunal
Pollack v Owners Corporation SP 54298 [2013] NSWCTTT 334
Shabazian v Owners Corporation SP 56466 [2017] NSWCATCD 83
Stolfa v Hempton [2010] NSWCA 218
The Owner Strata Plan No 52896 v Goldbind Pty Ltd and Anor (unreported, 1 May 1998, File No 13405/97
The Owners-Strata Plan No 28306 v Anderson [2017] NSWCATCD 8
The Owners-Strata Plan No 6534 v El Khouri [2015] NSWCATCD 147
Wrigley v Owners Corporation SP 53413 [2017] NSWCATAP 100
Category: Principal judgment
Parties: The Owners - Strata Plan No 60182 (Applicant)
Deborah Bornzin (Respondent)
Representation: Mr P.Ton, Solicitor (Applicant)
Mr N. Hufton, Solicitor (Respondent)
Grace Lawyers Pty Ltd (Applicant)
Watson and Watson (Respondent)

File Number(s): SC 18/18432
Publication restriction: Nil

REASONS FOR DECISION

This matter is a strata dispute involving (i) venetian balcony blinds; and (ii) a bamboo privacy screen located on the inside of a courtyard fence; installed by the respondent in 2014.
The applicant is the owners corporation of the strata scheme (‘the owners corporation’).…

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 60182 v Bornzin 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: [2019] NSWCATCD 30
Decision Date: 28 March 2019

CaseChat Overview and Summary

The Owners Strata Plan No 60182 brought an application against Bornzin seeking orders under the Strata Schemes Management Act 1996 (NSW) to perform work on a common property balcony. The dispute arose after the owners corporation issued a notice under section 166 of the Act to Bornzin to repair the balcony, which she failed to do. The owners corporation sought to enforce the notice by applying to the Civil and Administrative Tribunal (CAT) for an order under section 168 of the Act. The application was heard by the Tribunal, which made an order on 22 April 2016 requiring Bornzin to carry out the repairs. Bornzin did not comply with the order, and the owners corporation applied to the Tribunal for an order for possession of the common property to enable the work to be done. The Tribunal made an order on 12 October 2017 for possession, which was not complied with by Bornzin. The owners corporation then applied to the Tribunal for an order for possession to be enforced by a third party, and this was granted on 10 September 2018. Bornzin appealed against the order for possession, and the appeal was dismissed by the Supreme Court on 10 May 2019.

The legal issues before the Tribunal were whether the orders for possession had expired, whether Bornzin had failed to comply with the orders, and whether the owners corporation should be granted access to perform the work. The Tribunal held that the orders for possession had not expired, as they were subject to the operation of the transitional and savings provisions of the Strata Schemes Management Act 2015 (NSW). The Tribunal also found that Bornzin had failed to comply with the orders, as she had not carried out the required repairs or allowed access to the common property. Finally, the Tribunal held that the owners corporation should be granted access to perform the work, as the orders for possession authorised this and there was no valid reason for Bornzin to prevent it.

In reaching its decision, the Tribunal considered the relevant provisions of the Strata Schemes Management Act 1996 (NSW) and the Strata Schemes Management Act 2015 (NSW), as well as relevant case law. The Tribunal found that the orders for possession were still in force and that Bornzin had failed to comply with them. The Tribunal also found that the owners corporation was entitled to enforce the orders by obtaining possession of the common property and carrying out the required work. The Tribunal rejected Bornzin's arguments that the orders had expired, that there was no valid reason to grant access, and that the owners corporation had not acted in accordance with the Act.

The orders made by the Tribunal were that the application be dismissed, and that any costs application by the respondent be made in writing to the Tribunal supported by written submissions not exceeding 5 pages and with a copy sent to the other party on or before 14 days from the date of this decision. The submission is to include reference as to whether the party submits to the issue of costs being determined without a further oral hearing under section 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). If any costs application is made, the applicant is to file and serve written submissions in reply on the issue of costs not exceeding 5 pages on or before 14 days thereafter. Subject to the submissions of the parties, the Tribunal may determine the issue of costs on the papers in accordance with section 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

Orders

Orders of the court

1. Application dismissed.

2. Any costs application by the respondent is to be made in writing to the Tribunal supported by written submissions not exceeding 5 pages and with a copy sent to the other party on or before 14 days from the date of this decision. The submission is to include reference as to whether the party submits to the issue of costs being determined without a further oral hearing under s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW).

3. If any costs application is made, the applicant is to file and serve written submissions in reply on the issue of costs not exceeding 5 pages on or before 14 days thereafter.

4. Subject to the submissions of the parties, the Tribunal may determine the issue of costs on the papers in accordance with s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	The Owners - Strata Plan No 60182 v Bornzin [2019] NSWCATCD 30
Hearing dates:	18 September 2018
Date of orders:	28 March 2019
Decision date:	28 March 2019
Jurisdiction:	Consumer and Commercial Division
Before:	G J Sarginson, Senior Member
Decision:	1. Application dismissed. 2. Any costs application by the respondent is to be made in writing to the Tribunal supported by written submissions not exceeding 5 pages and with a copy sent to the other party on or before 14 days from the date of this decision. The submission is to include reference as to whether the party submits to the issue of costs being determined without a further oral hearing under s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW). 3. If any costs application is made, the applicant is to file and serve written submissions in reply on the issue of costs not exceeding 5 pages on or before 14 days thereafter. 4. Subject to the submissions of the parties, the Tribunal may determine the issue of costs on the papers in accordance with s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW
Catchwords:	STRATA SCHEMES---Orders under Strata Scheme Management Act 1996 (NSW)---Operation of savings and transitional provisions under Strata Schemes Management Act 2015 (NSW)---Whether orders expired---Whether Lot owner had failed to comply with orders---Whether owners corporation should be granted access to perform work
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Community Land Management Act 1999 (NSW) Home Building Act 1989 (NSW) Interpretation Act 1987 (NSW), Strata Schemes (Freehold Development) Act 1973 (NSW) Strata Schemes Management Act 1996 (NSW) Strata Schemes Management Act 2015 (NSW)
Cases Cited:	Balafoutis & Ors v The Owners-Strata Plan No 76536 [2016] NSWCATCD 83 Bellingen Shire Council v Colavon Pty Ltd [2012] NSWCA 34 Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 188 CLR 144 Lavery v Dimension Tilers Pty Ltd [2015] NSWCATCD 59. Moellem v Consumer Trader and Tenancy Tribunal Pollack v Owners Corporation SP 54298 [2013] NSWCTTT 334 Shabazian v Owners Corporation SP 56466 [2017] NSWCATCD 83 Stolfa v Hempton [2010] NSWCA 218 The Owner Strata Plan No 52896 v Goldbind Pty Ltd and Anor (unreported, 1 May 1998, File No 13405/97 The Owners-Strata Plan No 28306 v Anderson [2017] NSWCATCD 8 The Owners-Strata Plan No 6534 v El Khouri [2015] NSWCATCD 147 Wrigley v Owners Corporation SP 53413 [2017] NSWCATAP 100
Category:	Principal judgment
Parties:	The Owners - Strata Plan No 60182 (Applicant) Deborah Bornzin (Respondent)
Representation:	Mr P.Ton, Solicitor (Applicant) Mr N. Hufton, Solicitor (Respondent) Grace Lawyers Pty Ltd (Applicant) Watson and Watson (Respondent)
File Number(s):	SC 18/18432
Publication restriction:	Nil