Sahade v Gilster [2016] NSWCATAP 245

Sahade v Gilster [2016] NSWCATAP 245

The Appeal Panel held that the correction of the strata register and boundaries did not constitute a change in the permitted land use under s 183(2)(b) of the Strata Schemes Management Act 1996 (NSW). If the disputed parcel was not part of lot 3 before correction, it was common property; alternatively, even if it had no prior owner, the correction only made it part of lot 3 and did not alter the ways in which the land could lawfully be used. Section 12(3)(c) of the Real Property Act 1900 (NSW) also required the corrected register to be treated as if the error had not occurred, so the parcel was to be treated as always having been part of lot 3. The jurisdictional fact required by s...

Jurisdiction
Australia
Judgment Date
15 November 2016
Procedural Posture
Appeal From Dismissal of Application Under S 183 of the Strata Schemes Management Act 1996 (nsw) / Appeal Panel
Outcome
The appeal is dismissed.
Legal Topics
['unit Entitlements' 'correction of Errors in the Register' 'permitted Land Use' 'jurisdiction Under S 183(2)(b) of the Strata Schemes Management Act 1996 (nsw)']
['strata Schemes' 'real Property' 'statutory Interpretation'] ['unit Entitlements' 'correction of Errors in the Register' 'permitted Land Use' 'jurisdiction Under S 183(2)(b) of the Strata Schemes Management Act 1996 (nsw)']

Case Brief

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Procedural Posture

Appeal From Dismissal of Application Under S 183 of the Strata Schemes Management Act 1996 (nsw) / Appeal Panel

Legal Issues

  1. 1 ['Whether the correction of errors in lot boundaries under s 12 of the Real Property Act 1900 (NSW) was a change in the permitted land use for the purposes of s 183(2)(b) of the Strata Schemes Management Act 1996 (NSW).' 'Whether s 12(3)(c) of the Real Property Act 1900 (NSW) required the corrected register to be treated as having the same validity and effect as if the error had not occurred.' 'Whether the Tribunal had jurisdiction to make an order reallocating unit entitlements under s 183(2)(b) of the Strata Schemes Management Act 1996 (NSW).']

Ratio Decidendi

The Appeal Panel held that the correction of the strata register and boundaries did not constitute a change in the permitted land use under s 183(2)(b) of the Strata Schemes Management Act 1996 (NSW). If the disputed parcel was not part of lot 3 before correction, it was common property; alternatively, even if it had no prior owner, the correction only made it part of lot 3 and did not alter the ways in which the land could lawfully be used. Section 12(3)(c) of the Real Property Act 1900 (NSW) also required the corrected register to be treated as if the error had not occurred, so the parcel was to be treated as always having been part of lot 3. The jurisdictional fact required by s...

Court Disposition

The appeal is dismissed.

Orders

  • ['The appeal is dismissed.']