Lindsay Player, Carol Player and Benuki Pty Limited v Themistoclis Christou and Amalia Christou [2014] NSWCATCD 60

Lindsay Player, Carol Player and Benuki Pty Limited v Themistoclis Christou and Amalia Christou [2014] NSWCATCD 60

The Tribunal was satisfied on the balance of probabilities that the first respondents obstructed the common property driveway with motor vehicles and use of a forklift in breach of by-laws 2 and 3 and section 117(b) and (c) of the Strata Schemes Management Act 1996. The applicants did not prove that plant and equipment stored on the parking spaces attached to lot 2 encroached on common property or created nuisance. The enclosure of the covered car spaces in lot 1 and the mezzanine floor within lots 1 and 2 added to, altered, or erected a new structure on common property without the special resolution required by section 65A, so removal and restoration orders were warranted.

Jurisdiction
Australia
Judgment Date
01 May 2014
Procedural Posture
Application Concerning Obstruction of Common Property and Unauthorised Works in a Strata Scheme / Principal Judgment After Hearing; Matter Transferred to the Tribunal by a Strata Schemes Adjudicator
Outcome
Application allowed in part; orders made against the first respondents; application to require removal of used commercial kitchen equipment and general rubbish from designated parking areas and alleged adjoining common property dismissed; no order as to costs.
Legal Topics
['alterations to Common Property' 'obstruction of Common Property' 'by Law Compliance' 'unauthorised Works' 'owners Corporation Powers']
['strata Law' 'administrative Law'] ['alterations to Common Property' 'obstruction of Common Property' 'by Law Compliance' 'unauthorised Works' 'owners Corporation Powers']

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Procedural Posture

Application Concerning Obstruction of Common Property and Unauthorised Works in a Strata Scheme / Principal Judgment After Hearing; Matter Transferred to the Tribunal by a Strata Schemes Adjudicator

Legal Issues

  1. 1 ['Whether the first respondents obstructed the common property driveway with motor vehicles and use of a forklift in breach of by-laws 2 and 3 and section 117 of the Strata Schemes Management Act 1996.' 'Whether the first respondents should be ordered to remove used commercial kitchen equipment and rubbish from designated parking areas and alleged adjoining common property.' 'Whether the enclosure of the car spaces at the front of the strata scheme and the construction of a mezzanine floor within lots 1 and 2 added to, altered, or erected a new structure on common property without the special resolution required by section 65A of the Strata Schemes Management Act 1996.' 'Whether the Owners Corporation could be authorised to carry out the removal and restoration works and recover the cost if the first respondents failed to comply.']

Ratio Decidendi

The Tribunal was satisfied on the balance of probabilities that the first respondents obstructed the common property driveway with motor vehicles and use of a forklift in breach of by-laws 2 and 3 and section 117(b) and (c) of the Strata Schemes Management Act 1996. The applicants did not prove that plant and equipment stored on the parking spaces attached to lot 2 encroached on common property or created nuisance. The enclosure of the covered car spaces in lot 1 and the mezzanine floor within lots 1 and 2 added to, altered, or erected a new structure on common property without the special resolution required by section 65A, so removal and restoration orders were warranted.

Court Disposition

Application allowed in part; orders made against the first respondents; application to require removal of used commercial kitchen equipment and general rubbish from designated parking areas and alleged adjoining common property dismissed; no order as to costs.

Orders

  • ['The first respondents must comply with by-laws 2 and 3 of Strata Plan 37585 and specifically must not park or stand any motor vehicle on the common property except with the written approval of the Owners Corporation and must not obstruct lawful use of common property by any person.' 'The first respondents must,...