Lyon v The Owners – Strata Plan No 11045 [2023] NSWCATCD 31

Lyon v The Owners – Strata Plan No 11045 [2023] NSWCATCD 31

Special By-law 14 authorised the pergola only in accordance with the Stratco drawings, which specified a height of 2700mm measured from the concrete footing surface. The survey evidence established that the pergola was 3.19m to 3.21m above the concrete floor and therefore did not comply. Because the Owners Corporation had decided not to exercise its functions under the by-law and the Strata Schemes Management Act 2015 despite the non-compliance, the Tribunal had power under s 232(1)(e) to require it to take necessary steps to require compliance. The Owners Corporation also remained responsible under s 106(1) to maintain the common property wall because it had not shown that responsibility...

Jurisdiction
Australia
Judgment Date
31 March 2023
Procedural Posture
Strata Schemes Application Seeking Orders Under S 232 of the Strata Schemes Management Act 2015 / Principal Judgment After Hearing
Outcome
Application allowed in part; orders made requiring the Owners Corporation to procure compliance with Special By-law 14 and clean the common property wall, and Ben Swanson was removed as second respondent.
Legal Topics
['common Property' 'by Laws' 'owners Corporation Functions' 'repair and Maintenance of Common Property' 'pergola Works']
['land Law' 'strata Title'] ['common Property' 'by Laws' 'owners Corporation Functions' 'repair and Maintenance of Common Property' 'pergola Works']

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Procedural Posture

Strata Schemes Application Seeking Orders Under S 232 of the Strata Schemes Management Act 2015 / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the applicant demonstrated, on the balance of probabilities, that the pergola did not comply with Special By-law 14.' 'If the pergola did not comply with Special By-law 14, whether the Tribunal had power under s 232 of the Strata Schemes Management Act 2015 to require the Owners Corporation to remove the pergola or require the owner of Lot 31 to make it compliant.' "Whether the Owners Corporation was obliged to clean the common property wall above the pergola and beneath the applicant's bedroom window."]

Ratio Decidendi

Special By-law 14 authorised the pergola only in accordance with the Stratco drawings, which specified a height of 2700mm measured from the concrete footing surface. The survey evidence established that the pergola was 3.19m to 3.21m above the concrete floor and therefore did not comply. Because the Owners Corporation had decided not to exercise its functions under the by-law and the Strata Schemes Management Act 2015 despite the non-compliance, the Tribunal had power under s 232(1)(e) to require it to take necessary steps to require compliance. The Owners Corporation also remained responsible under s 106(1) to maintain the common property wall because it had not shown that responsibility...

Court Disposition

Application allowed in part; orders made requiring the Owners Corporation to procure compliance with Special By-law 14 and clean the common property wall, and Ben Swanson was removed as second respondent.

Orders

  • ['The Owners – Strata Plan No 11045 is to take all necessary steps to require the owner of Lot 31 to comply with Special By-law 14; that is, by requiring the owner of Lot 31 to reduce the height of the pergola to 2.7 metres measured from the concrete surface of the courtyard to Lot 31.' 'The Owners – Strata Plan No...