The Owners - Strata Plan No 68255 v Downs; Downs v The Owners - Strata Plan No 68255 [2021] NSWCATCD 34

The Owners - Strata Plan No 68255 v Downs; Downs v The Owners - Strata Plan No 68255 [2021] NSWCATCD 34

The Level 5 East Area is common property as delineated by the remains of a pre-existing wall per survey evidence, and Ms Downs is ordered to reinstate alterations within Area 2. The internal area of the level 7 mezzanine is part of Lot 15 based on plan interpretation and physical features; the mezzanine balconies are common property. The Tribunal lacks power to compel a general meeting absent statutory trigger, and no restraint on Ms Downs' use of the Level 5 East Area is warranted in the current circumstances.

Jurisdiction
Australia
Judgment Date
22 July 2021
Procedural Posture
Civil (strata/land Law) / Principal Judgment After Final Hearing
Outcome
Application allowed in part; reinstatement orders made against Ms Downs regarding Level 5 East Area; otherwise applications dismissed
Legal Topics
['common Property Delineation' 'exclusive Use by Law' 'strata Scheme Boundaries' 'rectification of Unauthorised Works' 'tribunal Powers to Order Meetings']
['property Law' 'land Law' 'strata Title Law'] ['common Property Delineation' 'exclusive Use by Law' 'strata Scheme Boundaries' 'rectification of Unauthorised Works' 'tribunal Powers to Order Meetings']

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Procedural Posture

Civil (strata/land Law) / Principal Judgment After Final Hearing

Legal Issues

  1. 1 ['Where is the western boundary of the Level 5 East Area situated?' 'Is the level 7 mezzanine area part of the common property?' 'Should Ms Downs be ordered to reinstate the common property altered during the renovation?' 'Does the Tribunal have the power to order the Owners Corporation to convene a general meeting for by-laws?' 'Should Ms Downs be restrained from exclusively occupying certain common property areas?']

Ratio Decidendi

The Level 5 East Area is common property as delineated by the remains of a pre-existing wall per survey evidence, and Ms Downs is ordered to reinstate alterations within Area 2. The internal area of the level 7 mezzanine is part of Lot 15 based on plan interpretation and physical features; the mezzanine balconies are common property. The Tribunal lacks power to compel a general meeting absent statutory trigger, and no restraint on Ms Downs' use of the Level 5 East Area is warranted in the current circumstances.

Court Disposition

Application allowed in part; reinstatement orders made against Ms Downs regarding Level 5 East Area; otherwise applications dismissed

Orders

  • ['Helena Marie Downs to carry out specified reinstatement works within Area 2 (Level 5 East) to remove unauthorised alterations and reinstate common property (per Sherwood report 27 May 2020, excluding listed items), within 12 months' 'Ms Downs to ensure works are completed in proper manner by qualified contractors,...