The Owners - Strata Plan No. 98503 v Morrell

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

The Owners – Strata Plan No. 98503 v Morrell [2021] NSWCATCD 124

Hearing dates:

5 August 2021

Date of orders:

10 December 2021

Decision date:

10 December 2021

Jurisdiction:

Consumer and Commercial Division

Before:

R Notley, Senior Member

Decision:

1. Within six (6) months of the date of this order, the respondent is to:

a) remove the bi-fold windows installed by her and which enclose the terrace of her lot; and

b) make good all damage caused to the common property by the installation and removal of the bi-fold windows.

2. In the event that the respondent fails to comply with order 1, the applicant, by its agents, servants and contractors, be granted access to the respondent’s lot to remove the bi-fold windows and make good all damage caused to the common property by the installation and removal of the bi-fold windows.

Catchwords:

LAND LAW — Strata title — Unapproved work — Make good all damage to common property 

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Strata Schemes Management Act 1996 (NSW)

Strata Schemes Management Act 2015 (NSW)

Cases Cited:

Stolfa v Hempton [2010] NSWCA 218

Stolfa v Owners Strata Plan No 4366 [2009] NSWSC 589

The Owners – Strata Plan No. 32735 v Heather Lesley-Swan [2012] NSWSC 383

The Owners – Strata Plan No. 21702 v Krimbogiannis [2014] NSWCA 411

Texts Cited:

Nil

Category:

Principal judgment

Parties:

The Owners – Strata Plan No 98503 (Applicant)
Angela Morrell (Respondent)

Representation:

Counsel:
Dominic Williams (Respondent)

Solicitors:
Jane Crittenden Lawyer (Applicant)
Nexus Lawyers (Respondent)

File Number(s):

SC 20/51636

Publication restriction:

None

REASONS FOR DECISION

INTRODUCTION

1. This is a strata schemes application by an owners corporation seeking relief under sections 132 and 120(4) of the Strata Schemes Management Act 2015 (NSW) (the SSMA) against a lot owner.

2. It was not in dispute, and I find, that:

1. Strata Plan No 98503 (the Strata Plan), also known as Hensley Hall, is an eight-storey mixed use building, with two levels of basement car parking, on the corner of Bayswater Road, Ward Avenue and Goderich Lane, Potts Point, New South Wales (the Building);

2. the Strata Plan was registered on 5 November 2018 and comprises forty-four (44) residential lots, one (1) commercial lot and common property;

3. the Building retained the façade of three Edwardian terraces facing Bayswater Road.

3. It was not in dispute, and I find, that the Building is located within a Heritage Conservation Area under the Sydney Local Environmental Plan 2012.

4. The applicant is the Owners Corporation of the Strata Plan.

5. The respondent is the owner of Lot 1 in the Strata Plan (Lot 1). Lot 1 is also known as apartment 101 in the Building. It was not in dispute, and I find, that:

1. Lot 1 is on the ground floor of the Building and includes a twenty-one (21) square metre terrace which fronts onto Bayswater Road; and

2. the terrace sits behind the retained façade…