The Owners - Strata Plan No 47383 v McCullum [2022] NSWCATAP 283

The Owners - Strata Plan No 47383 v McCullum [2022] NSWCATAP 283

On proper construction, by-law 16 allowed the lot enclosure as both a locking or other safety device for protection against intruders and as a screen or device to prevent entry of animals or insects. There was no inconsistency between s 58(7) of the Strata Titles (Freehold Development) Act 1973 (NSW) and by-law 16, as the provision did not confer exclusive use of common property within the meaning of s 58(7). Accordingly, the appeal was dismissed.

Jurisdiction
Australia
Judgment Date
31 August 2022
Procedural Posture
Internal Appeal / Appeal Panel Determination
Outcome
Appeal dismissed
Legal Topics
['strata Title' 'by Laws' 'approval of Structural Works on Common Property' 'interpretation of by Law 16']
['land Law'] ['strata Title' 'by Laws' 'approval of Structural Works on Common Property' 'interpretation of by Law 16']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Internal Appeal / Appeal Panel Determination

Legal Issues

  1. 1 ['Whether by-law 16 permitted installation of the lot enclosure without body corporate approval' 'Whether the structure constituted a locking or safety device or a screen as per by-law 16' 'Whether section 58(7) of the Strata Titles (Freehold Development) Act 1973 (NSW) prevailed over by-law 16' 'Whether estoppel or presumption of regularity could be relied on by Mr McCullum']

Ratio Decidendi

On proper construction, by-law 16 allowed the lot enclosure as both a locking or other safety device for protection against intruders and as a screen or device to prevent entry of animals or insects. There was no inconsistency between s 58(7) of the Strata Titles (Freehold Development) Act 1973 (NSW) and by-law 16, as the provision did not confer exclusive use of common property within the meaning of s 58(7). Accordingly, the appeal was dismissed.

Court Disposition

Appeal dismissed

Orders

  • ['The appeal is dismissed.' 'Each party is to pay their own costs.']