Gazebo Penthouse Pty Limited v Owners Corporation SP 73943 [2015] NSWCATCD 93

Gazebo Penthouse Pty Limited v Owners Corporation SP 73943 [2015] NSWCATCD 93

Lift 3 did not exclusively service lot 61 under by-law 43. The by-law did not mention lifts or expressly confer exclusivity, lift 3 was common property with an inherent control system enabling it to service other levels, it was the emergency lift able to accommodate a stretcher, and it had serviced other lots for furniture movements. Reprogramming the lift used existing functionality and was not an alteration of common property requiring a section 65A special resolution. The Owners Corporation's refusal to make the proposed exclusive use by-law was not unreasonable because all owners had an interest in using the common property lift, access to three lifts significantly improved service to...

Jurisdiction
Australia
Judgment Date
04 August 2015
Procedural Posture
Strata Schemes Dispute Concerning Exclusive Use of Common Property and Proposed Exclusive Use by Law / Remitted Hearing After Supreme Court Appeal; Tribunal Appeal Under Section 177 of the Strata Schemes Management Act 1996 (nsw) and Transferred Adjudication Application Under Sections 158 and 169
Outcome
Matter SCS 12/20802 is dismissed; Matter SCS 13/21405 is dismissed.
Legal Topics
['exclusive Use by Laws' 'common Property' 'lift Services in Strata Scheme' 'unreasonable Refusal to Make by Law' 'alteration of Common Property' 'strata Schemes Management Act 1996 (nsw)']
['strata Law' 'property Law' 'administrative Law'] ['exclusive Use by Laws' 'common Property' 'lift Services in Strata Scheme' 'unreasonable Refusal to Make by Law' 'alteration of Common Property' 'strata Schemes Management Act 1996 (nsw)']

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Procedural Posture

Strata Schemes Dispute Concerning Exclusive Use of Common Property and Proposed Exclusive Use by Law / Remitted Hearing After Supreme Court Appeal; Tribunal Appeal Under Section 177 of the Strata Schemes Management Act 1996 (nsw) and Transferred Adjudication Application Under Sections 158 and 169

Legal Issues

  1. 1 ['Whether lift 3 exclusively services lot 61 within the meaning of by-law 43.' "Whether the Owners Corporation's reprogramming of lift 3 on 6 July 2011 required a special resolution under section 65A of the Strata Schemes Management Act 1996 (NSW)." 'Whether the Owners Corporation unreasonably refused to make the proposed exclusive use by-law for lots 60, 61 and 166 under section 158 of the Strata Schemes Management Act 1996 (NSW).']

Ratio Decidendi

Lift 3 did not exclusively service lot 61 under by-law 43. The by-law did not mention lifts or expressly confer exclusivity, lift 3 was common property with an inherent control system enabling it to service other levels, it was the emergency lift able to accommodate a stretcher, and it had serviced other lots for furniture movements. Reprogramming the lift used existing functionality and was not an alteration of common property requiring a section 65A special resolution. The Owners Corporation's refusal to make the proposed exclusive use by-law was not unreasonable because all owners had an interest in using the common property lift, access to three lifts significantly improved service to...

Court Disposition

Matter SCS 12/20802 is dismissed; Matter SCS 13/21405 is dismissed.

Orders

  • ['Matter SCS 12/20802 is dismissed' 'Matter SCS 13/21405 is dismissed']