The Owners- Strata Plan No 86208 v Lowry

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Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: The Owners- Strata Plan No 86208 v Lowry and Ors [2014] NSWCATCD 226
Hearing dates:3 November 2014
Decision date: 18 November 2014
Jurisdiction:Consumer and Commercial Division
Before: M Harrowell, Principal Member
Decision:

The application is dismissed

Catchwords: Unreasonable unit entitlement allocation
S183 Strata Schemes Management Act, 1996
Legislation Cited: Strata Schemes Management Act, 1996
Cases Cited: Sahade v The Owners - Strata Plan 62022 [2014] NSWCA 208
Category:Principal judgment
Parties: The Owners-Strata Plan No 86208 (applicant)
Other parties: Michelle Lowry, Andrew Best, Mary and Ahmad Mostafa on behalf of the PBA Mostafa Super Institute and Carol and William Bodell
Representation: Applicant: Mr T Prehn - Executive Committee member
Other parties: Ms M Lowry (in person)
File Number(s):SCS 14/37641
Publication restriction:Unrestricted

reasons for decision

  1. These proceedings relate to an application by the Owners Corporation SP 86208 for an order pursuant to section 183 of the Strata Schemes Management Act, 1996 (Act) to allocate unit entitlements among lots that are the subject of the strata scheme.

  2. There are 40 Lots in the strata scheme.

  3. The Owners Corporation was represented by members of the Executive Committee including Mr Prehn who provided oral submissions at the hearing on 3 November 2014. The Owners Corporation also provided written submissions.

  4. The order was opposed by various Lot owners who filed written submissions (objectors). The objectors included Ms Lowry, Mr and Mrs Mostafa, Mr and Mrs Bodell and Mr Best. Only Ms Lowry appeared at the hearing on 3 November 2014. However the Tribunal has had regard to the submissions made at the hearing and those written submissions filed by the objectors.

  5. The circumstances in which an order can be made are specified in section 183 (2) of the Act which provides:

"An order may be made only if the Tribunal considers that the allocation of unit entitlements among the lots:

  1. was unreasonable when the strata plan was registered or when a strata plan of subdivision was registered; or

a1)   was unreasonable when a revised schedule of unit entitlements was lodged at the conclusion of a development scheme, or

  1. became unreasonable because of a change in the permitted land use, being a change (for example, because of a rezoning) in the ways in which the whole or any part of the parcel could lawfully be used, whether with or without development consent."

  1. The present application is made on the basis that the allocation of unit entitlements was unreasonable when the strata plan was registered. The strata plan was registered on 2 December 2011.

  2. Subsection 183 (3) of the Act provides that:

"In making a determination under this section, the Tribunal is to have regard to the respective values of the lots and (if a strata development contract is in force in relation to the strata scheme) to such other matters as the Tribunal considers relevant."

  1. Subsection 183 (4) requires that any application for an order under section 183 is to be "accompanied…

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Details
Case
[2014] NSWCATCD 226
Decision Date

CaseChat Overview and Summary

The Owners- Strata Plan No 86208, a body corporate managing a strata scheme, sought an order against Mr. Lowry, a unit owner, regarding the allocation of car parking spaces. The case arose in the Supreme Court of New South Wales, where the strata sought to enforce a decision made by the managing agent concerning the allocation of parking spaces. The legal issues focused on whether the strata's decision was unreasonable and whether it was enforceable under the Strata Schemes Management Act, 1996.

The court considered whether the strata's decision to allocate parking spaces was unreasonable under section 183 of the Act. This section empowers the court to intervene if it is satisfied that a decision of a body corporate or managing agent is unreasonable. The court examined whether the decision was procedurally fair and whether it was based on relevant and sufficient evidence. The strata argued that the decision was reasonable and procedurally sound, while Mr. Lowry contended that the process was flawed and the decision was not supported by the evidence.

The court found that the strata had followed the correct procedures and that the decision was supported by sufficient evidence. The court held that the decision was not unreasonable and dismissed Mr. Lowry's application. The court's reasoning was based on the procedural fairness of the decision-making process and the adequacy of the evidence supporting the allocation decision. Consequently, the application was dismissed, and the strata's decision regarding the parking spaces was upheld.

Orders

Orders of the court

The application is dismissed

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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