The Owners – Strata Plan No. 10717 v Mantell; Mantell v The Owners – Strata Plan No. 10717 [2023] NSWCATCD 93

The Owners – Strata Plan No. 10717 v Mantell; Mantell v The Owners – Strata Plan No. 10717 [2023] NSWCATCD 93

The Tribunal found that the owners corporation did not provide any credible or rational basis for refusing the lot owners’ proposed common property rights by-law at the time of the relevant meeting, no reasons for the refusal were recorded, and subsequent explanations or alleged redevelopment plans were unsupported....

Source-derived case information.

Parties
Applicant: The Owners – Strata Plan No. 10717; Respondent: Darryl William Mantell; Respondent: Diane Louise Mantell (nee Taylor); Applicant: Diane Louise Mantell; Respondent: The Owners – Strata Plan No. 10717
Jurisdiction
Australia
Judgment Date
15 August 2023
Procedural Posture
Civil (strata/property) / Final Orders After Hearing
Outcome
Lot owners' application for common property rights by-law granted; owners corporation's application dismissed.
Legal Topics
Strata Title, Common Property Rights by Law, Unreasonable Refusal, Exclusive Use
Land Law Strata Title Common Property Rights by Law Unreasonable Refusal Exclusive Use

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Parties

The Owners – Strata Plan No. 10717

Applicant

Darryl William Mantell

Respondent

Diane Louise Mantell (nee Taylor)

Respondent

Diane Louise Mantell

Applicant

The Owners – Strata Plan No. 10717

Respondent

Procedural Posture

Civil (strata/property) / Final Orders After Hearing

Legal Issues

  1. 1 Whether the proposed common property rights by-law was unreasonably refused by the owners corporation
  2. 2 Whether the lot owners made an unauthorised addition to common property requiring a special resolution

Ratio Decidendi

The Tribunal found that the owners corporation did not provide any credible or rational basis for refusing the lot owners’ proposed common property rights by-law at the time of the relevant meeting, no reasons for the refusal were recorded, and subsequent explanations or alleged redevelopment plans were unsupported. Accordingly, the refusal was found to be unreasonable under s 149 of the Strata Schemes Management Act 2015 (NSW). As there was no sufficient justification for the owners corporation’s application for removal of the bench, and given the outcome of the by-law application, that application was dismissed.

Court Disposition

Lot owners' application for common property rights by-law granted; owners corporation's application dismissed.

Orders

  • SC 23/10406: Application dismissed.
  • SC 23/10406: No order as to costs.