Owners Corporation SP 32033 (applicant); Patrick and Valerie Mullins (respondents) [2015] NSWCATCD 23

Owners Corporation SP 32033 (applicant); Patrick and Valerie Mullins (respondents) [2015] NSWCATCD 23

Although the Owners Corporation validly determined under s 62(3) not to maintain and repair the external windows, it had no power to make Special By-law 2 transferring responsibility for maintenance to lot owners without an exclusive use or special privileges by-law under s 52 with the necessary consents. Special By-law 2 is invalid and should be set aside; however, the s 62(3) resolution remains effective.

Parties
Applicant: Owners Corporation SP 32033; Respondents: Patrick and Valerie Mullins
Jurisdiction
Australia
Judgment Date
27 February 2015
Procedural Posture
Appeal / Decision After Hearing De Novo
Outcome
Appeal dismissed; Adjudicator's orders affirmed.
Legal Topics
By Law Validity, Maintenance of Common Property, Exclusive Use by Laws, Strata Schemes, Section 62(3) Resolutions
Strata Law By Law Validity Maintenance of Common Property Exclusive Use by Laws Strata Schemes Section 62(3) Resolutions

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Parties

Owners Corporation SP 32033

Applicant

Patrick and Valerie Mullins

Respondents

Procedural Posture

Appeal / Decision After Hearing De Novo

Legal Issues

  1. 1 Did the Owners Corporation have the power to pass a special resolution under s 62(3) of the SSMA in relation to external common property windows?
  2. 2 Did the Owners Corporation have power to make Special By-law 2?
  3. 3 Should an order invalidating the by-law be made under s 159 of the SSMA?

Ratio Decidendi

Although the Owners Corporation validly determined under s 62(3) not to maintain and repair the external windows, it had no power to make Special By-law 2 transferring responsibility for maintenance to lot owners without an exclusive use or special privileges by-law under s 52 with the necessary consents. Special By-law 2 is invalid and should be set aside; however, the s 62(3) resolution remains effective.

Court Disposition

Appeal dismissed; Adjudicator's orders affirmed.

Orders

  • The orders made by the Adjudicator in SCS 14/27314 and SCS 14/32759 are affirmed.
  • The appeal against the Adjudicator's orders is dismissed.