Community Association DP 270158 v O’Neill [2018] NSWCATCD 26

Community Association DP 270158 v O’Neill [2018] NSWCATCD 26

The respondent, as proprietor of Lot 8, was bound by the Community Management Statement and could not avoid its By-laws by relying on council or regulatory approvals. The evidence established that works had been carried out without required Executive Committee approval and, in several respects, outside the requirements of the Architectural and Landscape Design Guidelines. The adjudication application therefore warranted compliance and reinstatement orders, while the separate appeal was unnecessary because the new adjudication application addressed the outstanding issues. The respondent's conduct justified a party/party costs order for the adjudication, but not indemnity costs.

Jurisdiction
Australia
Judgment Date
12 July 2018
Procedural Posture
Community Land Management Adjudication Referred to the Tribunal and External Appeal / Principal Judgment After Hearing
Outcome
Application substantially allowed; external appeal dismissed; respondent ordered to pay the applicant's costs of the adjudication on a party/party basis as agreed or assessed, with each party to pay its own costs of the appeal.
Legal Topics
['community Management Statement' 'by Laws' 'building Modifications and New Construction' 'executive Committee Approval' 'swimming Pool and Fencing Works' 'designated Building Area' 'costs in Tribunal Proceedings']
['community Land Management' 'consumer and Commercial' 'costs'] ['community Management Statement' 'by Laws' 'building Modifications and New Construction' 'executive Committee Approval' 'swimming Pool and Fencing Works' 'designated Building Area' 'costs in Tribunal Proceedings']

Case Brief

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Procedural Posture

Community Land Management Adjudication Referred to the Tribunal and External Appeal / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the respondent carried out new construction or building modifications on Lot 8 without approval required by the Community Management Statement.' 'Whether the By-laws in the Community Management Statement were binding on the respondent despite council or regulatory approvals.' 'Whether particular works, including the pool, deck roofing and enclosure, platform works, water tank, carport and air conditioning works should be removed, relocated or made compliant.' 'Whether the external appeal should be determined after the further adjudication application addressed the outstanding issues.' 'Whether special circumstances justified a costs order in respect of the adjudication.']

Ratio Decidendi

The respondent, as proprietor of Lot 8, was bound by the Community Management Statement and could not avoid its By-laws by relying on council or regulatory approvals. The evidence established that works had been carried out without required Executive Committee approval and, in several respects, outside the requirements of the Architectural and Landscape Design Guidelines. The adjudication application therefore warranted compliance and reinstatement orders, while the separate appeal was unnecessary because the new adjudication application addressed the outstanding issues. The respondent's conduct justified a party/party costs order for the adjudication, but not indemnity costs.

Court Disposition

Application substantially allowed; external appeal dismissed; respondent ordered to pay the applicant's costs of the adjudication on a party/party basis as agreed or assessed, with each party to pay its own costs of the appeal.

Orders

  • ['The respondent is to cause the undertaking of all such works as may be necessary to ensure compliance with the Australian Building Code, the relevant Australian Codes for the swimming pool and fencing works surrounding it constructed on Lot 8 of the Community Association DP 270158 and is to produce evidence of...