The Owners - Strata Plan No. 31293 v Lewinsohn; Lewinsohn v The Owners - Strata Plan No. 31293 [2021] NSWCATCD 121

The Owners - Strata Plan No. 31293 v Lewinsohn; Lewinsohn v The Owners - Strata Plan No. 31293 [2021] NSWCATCD 121

The Lot owner breached by-laws 3 and 9 of the strata scheme by unauthorised alteration and deposition of items on common property and failed to remedy these breaches after valid notice; he is ordered to restore common property and pay a civil penalty. No sufficient evidence existed for the Lot owner's counter-claims or to order broader injunctive relief as sought by the owners corporation.

Parties
Applicant (sc 21/15994), Respondent (sc 21/22748): The Owners-Strata Plan No 31293; Respondent (sc 21/15994), Applicant (sc 21/22748): Mark Lewinsohn
Jurisdiction
Australia
Judgment Date
01 December 2021
Procedural Posture
Strata Schemes Dispute – Consumer and Commercial Division / Final Decision With Consequential Orders; Costs to Be Determined
Outcome
Owners corporation application largely allowed; Lot owner’s application dismissed; compliance, restoration and penalty orders made; costs to be determined after further submissions.
Legal Topics
Strata Schemes, Unauthorised Alteration of Common Property, Breach of by Laws, Notice to Comply With by Laws, Civil Penalty for Breach of by Laws
Land Law Strata Schemes Unauthorised Alteration of Common Property Breach of by Laws Notice to Comply With by Laws Civil Penalty for Breach of by Laws

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Parties

The Owners-Strata Plan No 31293

Applicant (sc 21/15994), Respondent (sc 21/22748)

Mark Lewinsohn

Respondent (sc 21/15994), Applicant (sc 21/22748)

Procedural Posture

Strata Schemes Dispute – Consumer and Commercial Division / Final Decision With Consequential Orders; Costs to Be Determined

Legal Issues

  1. 1 Whether Lot owner breached strata scheme by-laws by altering and storing items on common property without consent
  2. 2 Whether a penalty should be imposed under s 147 of the SSMA for breach of by-laws
  3. 3 Whether the owners corporation failed to comply with its duties under the SSMA as alleged by Lot owner

Ratio Decidendi

The Lot owner breached by-laws 3 and 9 of the strata scheme by unauthorised alteration and deposition of items on common property and failed to remedy these breaches after valid notice; he is ordered to restore common property and pay a civil penalty. No sufficient evidence existed for the Lot owner's counter-claims or to order broader injunctive relief as sought by the owners corporation.

Court Disposition

Owners corporation application largely allowed; Lot owner’s application dismissed; compliance, restoration and penalty orders made; costs to be determined after further submissions.

Orders

  • By 11 February 2022, Mark Lewinsohn to restore common property (remove skate ramp, rear deck, garden beds, debris; clean area).
  • By 11 February 2022, Mark Lewinsohn to remove all items he deposited on common property in breach of by-laws 3 and 9.