The Owners - Strata Plan No 62022, Carina Gilster Celia Bischoff, Eckhart Bischoff v Rita Sahade, Anthony Sahade and Victor Sahade
[2014] NSWCATCD 28
•19 March 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: The Owners - Strata Plan No 62022, Carina Gilster Celia Bischoff, Eckhart Bischoff v Rita Sahade, Anthony Sahade and Victor Sahade [2014] NSWCATCD 28 Hearing dates: 17 and 18 June 2013 and 4 November 2013 Decision date: 19 March 2014 Jurisdiction: Consumer and Commercial Division Before: R F Buckley, Senior Member Decision: Orders are made as follows:
The respondents are not to unreasonably to use spotlights erected by them on the northern boundary of their lot, including the access handle, so as to unreasonably illuminate or shine into the interior of either of lots 1 or 2.
The respondents, Anthony and Victor Sahade shall not threaten or act in an aggressive manner towards the owners and occupiers of lots 1 an 2 when upon the common property of the strata scheme, by language or behaviour.
The respondents shall not consistently and unreasonably park on common property without the approval of the Owners Corporation, and not allow their invitees to do so.
The respondents are not to park upon common property in a persistent and long term manner so as to unreasonably obstruct the lawful use of the common property by other persons, or allow their invitees to do so.
The respondent Victor Sahade shall not drive on the common property in a dangerous and noisy manner.
The respondents are not to play music in the parcel of their lot in such a manner of unreasonably loud volume, or at times as to be disruptive to the residents and occupants of lots 1 and 2.
The respondents shall not damage, remove or prune vegetation on the common property without the consent of the Owners Corporation.
Not later than 16 May 2014 the first respondent, Rita Sahade is to present to the Owners Corporation, in accordance with s 52 of the SSMA a duly drafted proposed exclusive use by-law giving to the owner for the time being of lot 3, the exclusive use and ongoing maintenance obligations of those works described in proposed orders 9(b) - (h) as being, skylights installed in the roof to lot 3;covers of the original skylights of lot 3; the enclosure structures to the southern courtyard of lot 3 including the glazed skillion roof; the new deck to lot 3 described as being unauthorised; the additional rooms adjacent to the studio of lot 3 including windows and doors; doorway and steps on the western elevation of the dwelling structure on lot 3; and services to and other structures to two new bathrooms installed in the dwelling of lot 3.
Legislation Cited: Strata Schemes Management Act 1996 (NSW) Cases Cited: Jones v Dunkel [1959] HCA 8 Category: Principal judgment Parties: The Owners - Strata Plan No 62022, Carina Gilster, Celia Bischoff and Eckhart Bischoff (applicants)
Rita Sahade, Anthony Sahade and Victor Sahade (respondents)Representation: Dr C Birch of Senior Counsel, 17, 18 June 2013;
Mr L Grey of Senior Counsel, 4 November 2013 for the applicants
Mr M V Sahade of Counsel for the respondents
David Le Page (applicants)
Trinity Legal (respondents)
File Number(s): SCS 11/62452 Publication restriction: Unrestricted
reasons for decision
APPLICATION
This is an application lodged by the Owners Corporation of a three lot strata scheme situated on Wolseley Road, Point Piper and the owners of lots 1 and 2 seeking orders pursuant to s 138 of the Strata Schemes Management Act 1996 (NSW) (the SSMA) with respect to the conduct and behaviour of the owner and occupants of lot 3 of the strata scheme.
Whereas the application originally sought Adjudicator's orders, as a consequence of a decision made on 6 June 2012, pursuant to s 164 of the SSMA, the application was transferred to the Tribunal. Thereafter the conduct of the proceedings proceeded through a three day hearing which concluded on 4 November 2013. The Tribunal's orders are made in accordance with s 184 of the SSMA, with the Tribunal exercising the powers of an Adjudicator to make orders or dismiss an application.
The orders sought by the applicants pursuant to s 138 of the SSMA are as follows.
"i. That the respondents do not use spotlights erected by them or any of them on the northern boundary fence, so as to illuminate or shine into the interior of lot 1 or lot 2.
ii. That the respondents remove or refrain from using a timber staircase that has been constructed on lot 3.
iii. That the respondents Anthony Sahade and Victor Sahade not threaten the owners and occupiers of lots 1 and 2 when upon the common property by language or behaviour or encourage their invitees to do so.
iv. That the respondents not park upon common property without the approval of the owners corporation, and not allow their invitees to do so.
v. That the respondents not park upon common properties so as to obstruct the lawful use of the common property by other persons or allow their invitees to do so.
vi. That Victor Sahade not drive on the common property in a dangerous and noisy manner.
vii. That the respondents not obstruct lawful use of the common property, or allow their invitees to do so.
viii. That Victor Sahade not play music in the parcel at an unreasonable volume so as to disturb the residents of lot 1 and 2 in their enjoyment of their lots or the common property.
ix. That the respondents not alter or add to the common property without the authority of the owners corporation, and restore common property altered by them to its former condition, in particular :
a. not remove magnets on the shutters to the studio of lot 3;
b. remove skylights installed in the roof to lot 3;
c. remove covers from the original skylights to lot 3;
d. remove the enclosure of the southern courtyard of lot 3, including the glazed skillion roof;
e. remove the unauthorised deck in lot 3;
f. remove the additional rooms in the common property adjacent to the studio of lot 3 including the additional windows and a door;
g. remove a doorway and steps on the western elevation of the dwelling on lot 3;
h. remove services to two new bathrooms in the dwelling of lot 3 affecting the common property;
i. repair damage to the intercom at the front gate;
That Rita Sahade and Anthony Sahade not damage, remove or prune vegetation on the common property without the consent of the owners corporation. "
THE EVIDENCE
Extensive written statement evidence was put on by the applicants in support of their application. The statement evidence of Mr Eckhart Bischoff was not relied upon. Apart from various photo evidence, the substantive evidence relied upon by the applicants is as set out below.
- Statement of Carina Gilster - ex. A
- Statement of Sally Boileau dated 29.4.13 - ex. C
- Statement of David Simpson dated 28.2.12 - ex. D
- Statements of Celia Bischoff dated 29.8.12 - ex. E.1
- Statement of Celia Bischoff dated 21.2.13 - ex. E.2
- Statement of Celia Bischoff dated 29.4.13 - ex. E.3
The statements of Mrs Bischoff contained two lever arch volumes of exhibited documents. Both Mrs Bischoff and Ms Gilster were subject to lengthy cross-examination. The other lay witnesses were also called to give evidence and were cross-examined.
The respondents submitted, in accordance with the Tribunal's directions, a series of reports from a Mr Nicholas Douglas Mitchell, a consulting engineer, which were admitted into evidence, the first, ex. 10, a report dated 11 February 2013 and the second, dated 14 March 2013, ex. 11. The respondents had previously lodged with the Tribunal written statements of Rita Sahade, the owner of lot 3, her husband Anthony Sahade, an occupier and her son, Victor Sahade, also an occupier. The respondents declined to rely upon these written statements but tendered the reports of Mr Mitchell only who was also called to give evidence and be cross-examined. The respondents also tendered a series of photographs and other documentary evidence without objection.
At the conclusion of the third day of evidence, counsel for both parties provided detailed oral submissions in support of those already provided. For the purpose of formulating my reasons and final orders I have read, heard and considered all oral and written evidence and submissions. To the extent that I may not refer in my reasons to a specific piece of evidence, or singularly deal with a particular submission, it should not be assumed that I have ignored that evidence or submission.
The applicants do not press order 2, but submit that the evidence supports orders being made in the terms of proposed orders 1, 3, 4, 5, 6, 7, 8 and 10. The lengthy orders sought in proposed order 9 are dealt with separately. The applicants primary submissions are set out in a comprehensive document dated 28 February 2012 and supplementary submissions dated 27 March 2012.
The applicants particularly rely in their submissions upon allegations that the respondents have been and continue to be in breach of the following by-laws and provisions of the SSMA.
- By-law 1 (noise);
- By-law 2 (vehicles);
- By-Law 3 (obstruction of common property;
- By-law 4 (damage to lawns and plants on common property);
- By-law 5 (damage to common property);
- By-law 6 (behaviour of owners and occupiers);
- By-law 8 (behaviour of invitees);
- By-law 9 (depositing rubbish and other material on the common property);
- Section 65(a) of the SSMA (see below)
- Section 116(2) (or (ii)? Of the SSMA - (see below)
- Section 117(1)(a), (b) and (c) of the SSMA - (see below)
Whereas not relied upon by the applicants, but by the respondents, exclusive use by-law 22 is relevant to the relief sought pursuant to proposed order 9.
The respondents rely upon the evidence of Mr Mitchell, asserted concessions made during the course of cross-examination of the applicants' witnesses, and specifically in submissions an interpretation of the proper construction of the exclusive use by-law. I shall deal firstly with the claims for relief other than those set out in order 9.
The lay evidence relied upon by the applicants is, in my view, compelling. Notwithstanding that some concessions were made during cross-examination, the fundamental reliability of the witnesses, relevant to the impugned conduct of the respondents was not damaged.
At the other extreme the respondents chose not to rely upon any of their evidence whatsoever. I draw the available Jones v Dunkel inference, and specifically reject the submission advanced by the respondents that the application is retaliatory in character.
The conduct of the respondents, specifically the owner's husband, Mr Anthony Sahade, has since about May 2005, when the respondents took occupation of lot 3 under licence, been characterised by a lack of civility, arrogance, threatening behaviour, a disdain for the rights of other lot owners and a disregard for the obligations imposed by the SSMA and its relevant by-laws as detailed above.
I make the following orders using the same numbers referred to in the initial application, other than proposed order 7. The terms of the orders sought are to a large extent in absolute terms, however reasonable neighbourly behaviour must also be tempered with reasonable tolerance.
(i) The respondents are not to unreasonably use spotlights erected by them on the northern boundary fence of their lot, including the access handle, so as to unreasonably illuminate or shine into the interior of either of lots 1 or 2.
(ii) The respondents, Anthony Sahade and Victor Sahade, shall not threaten or act in an aggressive manner towards the owners and occupiers of lots 1 and 2 when upon the common property of the strata scheme, by language or behaviour.
(iii) The respondents shall not consistently and unreasonably park on common property without the approval of the Owners Corporation, and not allow their invitees to do so.
(iv) The respondents are not to park upon common property in a persistent and long term manner so as to unreasonably obstruct the lawful use of the common property by other persons, or allow their invitees to do so.
(v) Victor Sahade shall not drive on the common property in a dangerous and noisy manner.
(vi) This order as sought is not made as it is too wide and general, and merely states what the SSMA and by-laws require, and is not justified by the evidence.
(vii) The respondents are not to play music in the parcel of their lot in such a manner, of unreasonable loudness or at times as to be disruptive to the residents of lots 1 and 2, or at an unreasonable volume.
Proposed order 10 is confirmed as sought.
I now turn to the specific orders sought in proposed order 9.
These orders should be considered in the context of the applicants' evidence and their primary and supplementary submissions, the submissions made by the respondents and the evidence of Mr Mitchell. Relevantly exclusive use by-law No 22 is in the following terms.
"The owner for the time being of lot 3;
(a)is entitled to exclusive use and enjoyment of that part of the common property comprising the windows, walls, balconies, roof and attachments thereto on that part of lot 3 shown on the strata plan as having an area of 844sm ("exclusive use area); and
(b)shall be responsible for the proper maintenance of, renewal and replacing of and keeping in a state of good serviceable repair of the exclusive use area; and
(c) shall be responsible for the costs incurred under this exclusive use by-law".
The applicants submit at paragraph 15 of the supplementary submissions as follows:
"The applicants submit that is not appropriate that unauthorised works be condoned, or "left in limbo". If Mr and Mrs Sahade are not prepared to ask the owners corporation to ratify the unauthorised works on appropriate conditions, they should be ordered to remove them (unless the owners corporation consent is properly obtained thereafter). Should the owners corporation refuse consent unreasonably, then Mrs Sahade will find a remedy under s.158 of the Act."
Reliant upon the evidence of Mr Mitchell, the respondents contend that the work that was carried out by them was done within the scope of the by-law 22. In reply the applicants submit that maintenance, replacement or renewal works can only apply to structures that exist. The works carried out by the respondents go beyond the scope of the limitation imposed by by-law 22(b). I accept the submission made on behalf of the applicants that the work that was done by the respondents to the common property, as referred to in proposed orders 9 (b) - (h) is work that is not authorised by by-law 22, and is building work and renovations which contravene the requirements of s 65A of the SSMA, which is in the following terms.
65A Owners corporation may make or authorise changes to common property
(1) For the purpose of improving or enhancing the common property, an owners corporation or an owner of a lot may take any of the following action, but only if a special resolution has first been passed at a general meeting of the owners corporation that specifically authorises the taking of the particular action proposed:
(a) add to the common property,
(b) alter the common property,
(c) erect a new structure on the common property.
(2) A special resolution that authorises action to be taken under subsection (1) in relation to the common property by an owner of a lot may specify whether the ongoing maintenance of the common property once the action has been taken is the responsibility of the owners corporation or the owner.
(3) If a special resolution under this section does not specify who has the ongoing maintenance of the common property concerned, the owners corporation has the responsibility for the ongoing maintenance.
(4) A special resolution under this section that allows an owner of a lot to take action in relation to certain common property and provides that the ongoing maintenance of that common property after the action is taken is the responsibility of the owner has no effect unless:
(a) the owners corporation obtains the written consent of the owner to the making of a by-law to provide for the maintenance of the common property by the owner, and
(b) the owners corporation makes such a by-law.
(5) A by-law made for the purposes of this section:
(a) may require, for the maintenance of the common property, the payment of money by the owner concerned at specified times or as determined by the owners corporation, and
(b) must not be amended or repealed unless a special resolution has first been passed at a general meeting of the owners corporation and the owners corporation has obtained the written consent of the owner concerned.
(6) The provisions of sections 52 (3), 54 (2) and (3) and 55 apply to a by-law made for the purposes of this section in the same way as those provisions apply to a by-law to which Division 4 of Part 5 of Chapter 2 applies
The failure to obtain the consent of the Owners' Corporation is not an omission that can be cured by the effluxion of time.
I am also cognisant of the reality that at least over the last four years the relationship between the respondents and the owners of lots 1 and 2 has become toxic, to the extent that the degree of disharmony has prevented any level of co-operation or reason to apply. In the light of my order made under s 162 of the SSMA, in SCS 13/35713 the circumstances of continued acrimony, lack of civility and unreasonable conduct relevant to the functioning of the management structure of the strata scheme, will, at least for a specified period, not prevail.
I accept the submission made by the applicants that the respondents be required to prepare and submit to the Owners' Corporation, exclusive use by-laws under s 52 of the SSMA which refer to the various items of work referred to in orders 9(b) - (h) within the time prescribed in the orders and decision set out above.
I am not satisfied that the evidence warrants making the order set out in proposed order 9(a), and I note that the order sought in 9(i) is not pressed.
(signed)
R F Buckley
Senior Member
Civil and Administrative Tribunal of New South Wales
19 March 2014
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
Decision last updated: 17 May 2014
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