The Owners – Strata Plan No. 6522 v Sullivan [2022] NSWCATCD 143

The Owners – Strata Plan No. 6522 v Sullivan [2022] NSWCATCD 143

Special By-Law 52 did not, on the more persuasive interlocutory view, authorise the respondents to redirect the common property waste pipe to the external wall of lot 31, because the waste pipe was common infrastructure and serviced lots 33, 35, 37 and 39 as well as lot 31, and such works were not properly characterised as merely necessary works for the safe and lawful removal of the bathroom/laundry wall. The unilateral alteration without approval of a common property waste pipe servicing other lots was urgent, and the balance favoured extending the interim restraint for four weeks while requiring the applicant to submit to compensation orders akin to the usual undertaking as to damages.

Jurisdiction
Australia
Judgment Date
05 September 2022
Procedural Posture
Application for Interim Relief in Strata Schemes Dispute / Interlocutory Application to Extend Ex Parte Interim Orders
Outcome
Ex parte interim order extended to 5pm on 3 October 2022, with compensation undertaking-style order; access order not made in the interim application; costs reserved.
Legal Topics
['interim Relief' 'common Property' 'alteration of Common Property' 'strata by Laws' 'waste Pipe Relocation']
['land Law' 'strata Schemes'] ['interim Relief' 'common Property' 'alteration of Common Property' 'strata by Laws' 'waste Pipe Relocation']

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Procedural Posture

Application for Interim Relief in Strata Schemes Dispute / Interlocutory Application to Extend Ex Parte Interim Orders

Legal Issues

  1. 1 ['Whether Special By-Law 52 authorised the respondents to redirect a waste pipe to the external wall of lot 31 on common property.' 'Whether urgent considerations justified extending the ex parte interim order restraining work on common property.' 'Whether the Tribunal had power to restrain the redirecting of the waste stack.' 'Whether an interim access order should be made.' 'Whether any continuation of interim relief should be accompanied by an order akin to the usual undertaking as to damages.']

Ratio Decidendi

Special By-Law 52 did not, on the more persuasive interlocutory view, authorise the respondents to redirect the common property waste pipe to the external wall of lot 31, because the waste pipe was common infrastructure and serviced lots 33, 35, 37 and 39 as well as lot 31, and such works were not properly characterised as merely necessary works for the safe and lawful removal of the bathroom/laundry wall. The unilateral alteration without approval of a common property waste pipe servicing other lots was urgent, and the balance favoured extending the interim restraint for four weeks while requiring the applicant to submit to compensation orders akin to the usual undertaking as to damages.

Court Disposition

Ex parte interim order extended to 5pm on 3 October 2022, with compensation undertaking-style order; access order not made in the interim application; costs reserved.

Orders

  • ['Order (2) of the ex parte orders made by the Tribunal on 16 August 2022 ordering the respondents, their agents and contractors to immediately cease carrying out work on the common property involving a redirecting of a waste pipe to the external wall of lot 31 is extended to 5pm on 3 October 2022.' 'The applicant...