Turek v The Owners – Strata Plan No. 70871 [2021] NSWCATCD 79

Turek v The Owners – Strata Plan No. 70871 [2021] NSWCATCD 79

As the owners corporation effectively refused to grant the licence and no statutory or regulatory restrictions prohibit use of the bin room for two commercial bins, and as lack of licence renders Lot 59 incapable of reasonable use and enjoyment, the Tribunal exercises its discretion to grant the licence sought under s 131 Strata Schemes Management Act 2015 (NSW).

Parties
First Applicant: Michael Turek; Second Applicant: Louise Turek; Respondent: The Owners - Strata Plan No. 70871
Jurisdiction
Australia
Judgment Date
03 August 2021
Procedural Posture
Civil Tribunal Proceeding / Final Merits Decision
Outcome
Licence granted subject to specified terms and conditions.
Legal Topics
Strata Schemes, Licence to Use Common Property, Owners Corporation Powers, Use and Enjoyment of Lot
Land Law Strata Title Administrative Law Strata Schemes Licence to Use Common Property Owners Corporation Powers Use and Enjoyment of Lot

Case Brief

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Parties

Michael Turek

First Applicant

Louise Turek

Second Applicant

The Owners - Strata Plan No. 70871

Respondent

Procedural Posture

Civil Tribunal Proceeding / Final Merits Decision

Legal Issues

  1. 1 Whether the applicants are entitled to an order granting a licence under s 131 Strata Schemes Management Act 2015 (NSW) to store two waste bins in the common property bin room
  2. 2 Whether refusal or failure by the owners corporation to grant the licence empowers the Tribunal to determine the application under s 131
  3. 3 Whether there are any relevant planning, council conditions or by-laws preventing storage of bins in the bin room

Ratio Decidendi

As the owners corporation effectively refused to grant the licence and no statutory or regulatory restrictions prohibit use of the bin room for two commercial bins, and as lack of licence renders Lot 59 incapable of reasonable use and enjoyment, the Tribunal exercises its discretion to grant the licence sought under s 131 Strata Schemes Management Act 2015 (NSW).

Court Disposition

Licence granted subject to specified terms and conditions.

Orders

  • The applicants are granted the right to operate under the Licence submitted to the respondent at the Extraordinary General Meeting of 17 January 2020 subject to the following conditions:
  • 1. The term of the Licence is to be for 10 years commencing from the date of these orders taking effect.