Stagg v Strudwick & Duncan-White [2021] NSWCATCD 140

Stagg v Strudwick & Duncan-White [2021] NSWCATCD 140

The contractor's work included both maintenance and changes to common property. Although some maintenance was required for safety, the removal of trees and changes to the style of plants were not authorised by any Owners Corporation resolution and required authorisation under s 108. The respondents also affixed the common seal to the Central Coast Council Exempt Tree Works statement without a resolution. It was therefore appropriate to order the respondents, at their own cost, to reinstate the garden with suitable plants and to restrain unauthorised use of the common seal.

Jurisdiction
Australia
Judgment Date
07 October 2021
Procedural Posture
Strata Title Dispute in the Consumer and Commercial Division Concerning Unapproved Work to Common Property Garden and Use of Common Seal / Final Decision After Hearing; Interim Orders Had Been Made Pending Determination
Outcome
Orders made requiring Maureen Strudwick and Fiona Duncan-White to reinstate the common property garden and not cause use of the common seal except pursuant to a valid resolution; no compulsory strata managing agent was appointed.
Legal Topics
['unapproved Work to Common Property' 'owners Corporation Maintenance Obligations' 'special Resolution for Changes to Common Property' 'common Seal of Owners Corporation' 'reinstatement of Common Property Garden']
['land Law' 'strata Title'] ['unapproved Work to Common Property' 'owners Corporation Maintenance Obligations' 'special Resolution for Changes to Common Property' 'common Seal of Owners Corporation' 'reinstatement of Common Property Garden']

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Procedural Posture

Strata Title Dispute in the Consumer and Commercial Division Concerning Unapproved Work to Common Property Garden and Use of Common Seal / Final Decision After Hearing; Interim Orders Had Been Made Pending Determination

Legal Issues

  1. 1 ['Whether Maureen Strudwick and Fiona Duncan-White removed plants and trees from the common property garden without authority of the Owners Corporation.' 'Whether the work was maintenance or a change to common property requiring a special resolution.' 'Whether reinstatement of the common property garden should be ordered and on what terms.' 'Whether the common seal of the Owners Corporation was affixed to a Central Coast Council Exempt Tree Works statement without a resolution.' 'Whether a compulsory strata managing agent should be appointed.']

Ratio Decidendi

The contractor's work included both maintenance and changes to common property. Although some maintenance was required for safety, the removal of trees and changes to the style of plants were not authorised by any Owners Corporation resolution and required authorisation under s 108. The respondents also affixed the common seal to the Central Coast Council Exempt Tree Works statement without a resolution. It was therefore appropriate to order the respondents, at their own cost, to reinstate the garden with suitable plants and to restrain unauthorised use of the common seal.

Court Disposition

Orders made requiring Maureen Strudwick and Fiona Duncan-White to reinstate the common property garden and not cause use of the common seal except pursuant to a valid resolution; no compulsory strata managing agent was appointed.

Orders

  • ['Maureen Strudwick and Fiona Duncan-White must, on or before 24 December 2021, at their own cost and in a proper and workmanlike manner, reinstate the common property garden, using plants which are consistent with plants in the streetscape in the vicinity of the property, which have non invasive roots so as not to...