Bate v The Owners-Strata Plan No SP 60549 and Anor; Birdsall v Bate [2018] NSWCATCD 36

Bate v The Owners-Strata Plan No SP 60549 and Anor; Birdsall v Bate [2018] NSWCATCD 36

Alterations to common property in a strata scheme must be authorised by special resolution and an exclusive use by-law; since such motions have not been properly considered at a general meeting, and given the conduct of all parties including seeking permission, the appropriate course is to require the owners corporation to convene a meeting to consider approval and an exclusive use by-law. No basis is established for invalidating the AGM decision, appointing a compulsory strata manager, or issuing immediate removal orders. Further applications may be made after consideration at a general meeting.

Jurisdiction
Australia
Judgment Date
03 August 2018
Procedural Posture
Tribunal Civil/strata / Final Decision
Outcome
Applications dismissed; procedural orders made to convene a meeting for further consideration.
Legal Topics
['alteration to Common Property' 'exclusive Use by Laws' 'functioning of Owners Corporation' 'compulsory Strata Manager' 'strata Disputes']
['strata Law' 'property Law' 'administrative Law'] ['alteration to Common Property' 'exclusive Use by Laws' 'functioning of Owners Corporation' 'compulsory Strata Manager' 'strata Disputes']

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Procedural Posture

Tribunal Civil/strata / Final Decision

Legal Issues

  1. 1 ['Whether permission was properly obtained to install awnings on common property' 'Whether the general meeting resolution to remove awnings should be invalidated' 'Whether an order for compulsory strata manager should be made' 'Whether owners corporation should be directed to approve/consent to alterations' 'Whether restoration/removal orders in respect of awnings should be made']

Ratio Decidendi

Alterations to common property in a strata scheme must be authorised by special resolution and an exclusive use by-law; since such motions have not been properly considered at a general meeting, and given the conduct of all parties including seeking permission, the appropriate course is to require the owners corporation to convene a meeting to consider approval and an exclusive use by-law. No basis is established for invalidating the AGM decision, appointing a compulsory strata manager, or issuing immediate removal orders. Further applications may be made after consideration at a general meeting.

Court Disposition

Applications dismissed; procedural orders made to convene a meeting for further consideration.

Orders

  • ['Application for order invalidating resolution passed at general meeting on 22 August 2017 under s 24 of the Strata Schemes Management Act 2015 dismissed.' 'Application for compulsory strata manager under s 237 of the Strata Schemes Management Act 2015 dismissed.' 'Application for owners corporation to consent to...