The Owners - Strata Plan No 19341 v Dehlsen [2022] NSWCATCD 208

The Owners - Strata Plan No 19341 v Dehlsen [2022] NSWCATCD 208

The Tribunal found that the renovation work carried out by Mr Dehlsen in 2005, including a polyurethane membrane overlaid onto a bitumen membrane and affixed glass balustrade, was not properly authorised by the owners corporation in terms of the statutory requirements for special resolution under s 65A. The Tribunal...

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Parties
Applicant: The Owners – Strata Plan No 19341; Respondent: Brian Charles Dehlsen
Jurisdiction
Australia
Judgment Date
19 December 2022
Procedural Posture
Application Under Strata Schemes Management Act 2015 (nsw) / Final Determination at Hearing in Civil and Administrative Tribunal, Consumer and Commercial Division
Outcome
Partially in favour of applicant (orders for by-law, work to planter boxes; possible costs submissions)
Legal Topics
Common Property Rights by Law, Strata Scheme Works by Lot Owner, Authorisation of Works, Water Penetration, Unreasonable Refusal of Consent
Strata Schemes Property Law Administrative Law Common Property Rights by Law Strata Scheme Works by Lot Owner Authorisation of Works Water Penetration Unreasonable Refusal of Consent

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Parties

The Owners – Strata Plan No 19341

Applicant

Brian Charles Dehlsen

Respondent

Procedural Posture

Application Under Strata Schemes Management Act 2015 (nsw) / Final Determination at Hearing in Civil and Administrative Tribunal, Consumer and Commercial Division

Legal Issues

  1. 1 Whether the renovation works by the lot owner were authorised under the relevant strata scheme legislation
  2. 2 Whether works carried out in 2005 caused water penetration into lot 2
  3. 3 Whether an order prescribing the making of a common property rights by-law should be made due to unreasonable refusal of consent

Ratio Decidendi

The Tribunal found that the renovation work carried out by Mr Dehlsen in 2005, including a polyurethane membrane overlaid onto a bitumen membrane and affixed glass balustrade, was not properly authorised by the owners corporation in terms of the statutory requirements for special resolution under s 65A. The Tribunal was not satisfied that the tiled balcony area works had caused water penetration into lot 2 but accepted that re-waterproofing of the planter boxes was appropriate. The owners corporation was entitled to an order prescribing a common property rights by-law because Mr Dehlsen had unreasonably refused consent to its making.

Court Disposition

Partially in favour of applicant (orders for by-law, work to planter boxes; possible costs submissions)

Orders

  • Order prescribing the making of a common property rights by-law as per exhibit 1, pages 153-157, pursuant to s 149 Strata Schemes Management Act 2015 (NSW).
  • Order owners corporation to do all necessary acts to register the by-law pursuant to s 246 Strata Schemes Management Act 2015 (NSW).