Pollack v The Owners – Strata Plan No. 2834; The Owners – Strata Plan No. 2834 v Pollack [2019] NSWCATAP 227

Pollack v The Owners – Strata Plan No. 2834; The Owners – Strata Plan No. 2834 v Pollack [2019] NSWCATAP 227

Any amendment, addition, or repeal of by-law 28 concerning exclusive use of common property required the consent of the Owners Corporation. The exclusive use by the lot 44 owners ended on 30 June 2018, and without Owners Corporation consent, the by-law could not be amended to extend the period. It was erroneous to...

Source-derived case information.

Parties
Appellant: Joseph Pollack; Appellant: Denise Susan Solden; Respondent: The Owners - Strata Plan No. 2834; Appellant: The Owners - Strata Plan No. 2834; Respondent: Joseph Pollack; Respondent: Denise Susan Solden
Jurisdiction
Australia
Judgment Date
16 September 2019
Procedural Posture
Appeals From Tribunal Decision (consumer and Commercial Division) / Appeal Panel Decision
Outcome
Lot 44 owners' appeal dismissed except as specified; Owners Corporation's appeal dismissed; Orders varied and clarified.
Legal Topics
Construction of by Laws, Exclusive Use of Common Property, Amendment of Strata by Laws, Compensation for Exclusive Use, Damages, Statutory Duty Under Strata Schemes Management Act
Strata Law Property Law Construction of by Laws Exclusive Use of Common Property Amendment of Strata by Laws Compensation for Exclusive Use Damages Statutory Duty Under Strata Schemes Management Act

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Parties

Joseph Pollack

Appellant

Denise Susan Solden

Appellant

The Owners - Strata Plan No. 2834

Respondent

The Owners - Strata Plan No. 2834

Appellant

Joseph Pollack

Respondent

Denise Susan Solden

Respondent

Procedural Posture

Appeals From Tribunal Decision (consumer and Commercial Division) / Appeal Panel Decision

Legal Issues

  1. 1 Whether by-law 28 could be amended to extend period of exclusive use without Owners Corporation consent
  2. 2 Obligation to seal void/hole in the roof area and by whom
  3. 3 Whether damages/compensation payable for exclusive use after expiry

Ratio Decidendi

Any amendment, addition, or repeal of by-law 28 concerning exclusive use of common property required the consent of the Owners Corporation. The exclusive use by the lot 44 owners ended on 30 June 2018, and without Owners Corporation consent, the by-law could not be amended to extend the period. It was erroneous to require lot 44 owners to seal the void/hole; obligation to repair common property rests with the Owners Corporation. Compensation for continued exclusive use after expiry was properly ordered, at $3,970 per month, under the Tribunal's powers, including reliance on the undertaking given by lot 44 owners.

Court Disposition

Lot 44 owners' appeal dismissed except as specified; Owners Corporation's appeal dismissed; Orders varied and clarified.

Orders

  • In AP 19/21640: Order 3(iv) set aside and replaced by order requiring the Owners Corporation to seal the hole in the floor of the enclosed room on the roof top area providing access to lot 44 in a proper and competent manner, in accordance with all applicable laws and within a reasonable timeframe.
  • Order 1 varied by deleting reference to Order 3(iv).