The Owners Strata Plan No 2245 v Veney [2020] NSWSC 134

The Owners Strata Plan No 2245 v Veney [2020] NSWSC 134

Special By-Law 4 is to be interpreted as conferring a new, additional right of exclusive use of part of the common property to the owner of Lot 51, not as a substitution or restriction of the right to park on Lot 51; parking by the owner in Lot 51 does not amount to an actionable nuisance as any inconvenience caused does not constitute an unreasonable interference with the rights of other owners or occupiers, particularly given the contributing presence of gardens on common property.

Parties
Plaintiff: The Owners Strata Plan No 2245; Defendant: Allan Veney
Jurisdiction
Australia
Judgment Date
27 February 2020
Procedural Posture
Principal Judgment / Final Hearing; Decision and Orders
Outcome
Summons dismissed with costs.
Legal Topics
Strata Title, By Laws Construction, Exclusive Use Rights, Common Property, Nuisance, Statutory Interpretation
Land Law Equity Strata Title By Laws Construction Exclusive Use Rights Common Property Nuisance Statutory Interpretation

Case Brief

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Parties

The Owners Strata Plan No 2245

Plaintiff

Allan Veney

Defendant

Procedural Posture

Principal Judgment / Final Hearing; Decision and Orders

Legal Issues

  1. 1 Proper construction of Special By-Law 4 under the strata scheme
  2. 2 Whether Special By-Law 4 confers a right in substitution of existing parking rights for Lot 51
  3. 3 Whether parking on Lot 51 by the defendant constitutes an actionable nuisance under s 153(1)(a) Strata Schemes Management Act 2015 (NSW)

Ratio Decidendi

Special By-Law 4 is to be interpreted as conferring a new, additional right of exclusive use of part of the common property to the owner of Lot 51, not as a substitution or restriction of the right to park on Lot 51; parking by the owner in Lot 51 does not amount to an actionable nuisance as any inconvenience caused does not constitute an unreasonable interference with the rights of other owners or occupiers, particularly given the contributing presence of gardens on common property.

Court Disposition

Summons dismissed with costs.

Orders

  • The Summons is dismissed.
  • The plaintiff is to pay the defendant's costs of the proceedings.