Davenport v The Owners – Strata Plan 536;; The Owners – Strata Plan 536 v Davenport [2018] NSWCATAP 301

Davenport v The Owners – Strata Plan 536;; The Owners – Strata Plan 536 v Davenport [2018] NSWCATAP 301

The fresh Council evidence was not reasonably available at first instance and was significant because it showed that Council had approved the balcony works. On the evidence, including common ownership of all lots when the balcony was built and the presumption of regularity, the Appeal Panel inferred that the then proprietors approved construction of the balcony. The balcony was therefore lawfully constructed common property, not an unauthorised structure. Because it was authorised common property which had fallen into disrepair, the Owners Corporation remained obliged to repair it unless it validly invoked s 106(3). Resolution 11 was invalid because it was not passed as a special...

Jurisdiction
Australia
Judgment Date
19 December 2018
Procedural Posture
Strata Schemes Dispute Appeals Concerning Repair or Demolition of Common Property Balcony / Appeal Panel Appeal From Consumer and Commercial Division Orders Made on 24 January 2018; Leave to Appeal and Extension of Time Considered
Outcome
Time to file appeal AP 18/22843 was extended; leave to appeal was granted; the appeal was allowed in part; the first instance orders were set aside; repair orders were made; Resolution 11 was declared invalid; otherwise the appeals were dismissed.
Legal Topics
['common Property' 'owners Corporation Duty to Repair and Maintain' 'section 106(3) Strata Schemes Management Act 2015 (nsw)' 'validity of Owners Corporation Resolutions' 'fresh Evidence on Appeal' 'presumption of Regularity' 'unauthorised Alterations']
['strata Schemes' 'administrative Law' 'property Law'] ['common Property' 'owners Corporation Duty to Repair and Maintain' 'section 106(3) Strata Schemes Management Act 2015 (nsw)' 'validity of Owners Corporation Resolutions' 'fresh Evidence on Appeal' 'presumption of Regularity' 'unauthorised Alterations']

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Procedural Posture

Strata Schemes Dispute Appeals Concerning Repair or Demolition of Common Property Balcony / Appeal Panel Appeal From Consumer and Commercial Division Orders Made on 24 January 2018; Leave to Appeal and Extension of Time Considered

Legal Issues

  1. 1 ['Whether the balcony was an illegal structure or lawfully constructed common property of the strata scheme.' 'Whether the Owners Corporation was obliged to repair the balcony at its cost under s 106 of the Strata Schemes Management Act 2015 (NSW).' 'Whether Resolution 11 made on 13 September 2016 validly authorised demolition of the balcony and making good of the building.' 'Whether fresh Council documents concerning the balcony building application should be admitted on appeal.' 'Whether time should be extended for appeal AP 18/22843.']

Ratio Decidendi

The fresh Council evidence was not reasonably available at first instance and was significant because it showed that Council had approved the balcony works. On the evidence, including common ownership of all lots when the balcony was built and the presumption of regularity, the Appeal Panel inferred that the then proprietors approved construction of the balcony. The balcony was therefore lawfully constructed common property, not an unauthorised structure. Because it was authorised common property which had fallen into disrepair, the Owners Corporation remained obliged to repair it unless it validly invoked s 106(3). Resolution 11 was invalid because it was not passed as a special...

Court Disposition

Time to file appeal AP 18/22843 was extended; leave to appeal was granted; the appeal was allowed in part; the first instance orders were set aside; repair orders were made; Resolution 11 was declared invalid; otherwise the appeals were dismissed.

Orders

  • ['The time to file appeal AP 18/22843 is extended to 11 May 2018.' 'Leave to appeal is granted and the appeal is allowed.' 'The orders made in applications SC 17/14533 and SC 17/24903 are set aside.' 'The Owners Corporation is, at its cost, to repair the balcony attached to Lot 1 and carry out all necessary...