Pollak v The Owners – Strata Plan No 2834 [2020] NSWSC 784

Pollak v The Owners – Strata Plan No 2834 [2020] NSWSC 784

The proper construction of By-Law 28(3) is that any amendment, addition to or repeal of the by-law requires the consent of the Owners Corporation; the by-law does not give Lot 44 (or others) a unilateral right to extend the duration of exclusive use. Orders for remediation and compensation were appropriately made, and the claims of procedural unfairness or lack of specificity were rejected. Leave to appeal was refused on all grounds.

Jurisdiction
Australia
Judgment Date
24 June 2020
Procedural Posture
Leave to Appeal (common Law) / Judgment on Application for Leave to Appeal From Appeal Panel of NSW Civil and Administrative Tribunal
Outcome
Leave to appeal refused
Legal Topics
['strata Title' 'by Laws' 'exclusive Use' 'construction of by Law' 'amendment of by Laws' 'remediation of Common Property' 'procedure for Appeal' 'damages in Ncat']
['land Law'] ['strata Title' 'by Laws' 'exclusive Use' 'construction of by Law' 'amendment of by Laws' 'remediation of Common Property' 'procedure for Appeal' 'damages in Ncat']

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Procedural Posture

Leave to Appeal (common Law) / Judgment on Application for Leave to Appeal From Appeal Panel of NSW Civil and Administrative Tribunal

Legal Issues

  1. 1 ['Proper construction of By-Law 28(3) regarding amendment, addition, or repeal of exclusive use by-law' 'Whether orders for remediation of common property lacked sufficient specificity' 'Entitlement to compensation flowing from exclusive use orders and undertakings']

Ratio Decidendi

The proper construction of By-Law 28(3) is that any amendment, addition to or repeal of the by-law requires the consent of the Owners Corporation; the by-law does not give Lot 44 (or others) a unilateral right to extend the duration of exclusive use. Orders for remediation and compensation were appropriately made, and the claims of procedural unfairness or lack of specificity were rejected. Leave to appeal was refused on all grounds.

Court Disposition

Leave to appeal refused

Orders

  • ['Leave to appeal against the orders of the Appeal Panel of the NSW Civil and Administrative Tribunal on 16 September 2019 is refused.' "The plaintiffs are to pay the defendant's costs of the proceedings."]