The Owners – Strata Plan No. 98503 v Morrell [2021] NSWCATCD 124

The Owners – Strata Plan No. 98503 v Morrell [2021] NSWCATCD 124

The respondent installed bi-fold windows enclosing the terrace of Lot 1 without approval from the owners corporation or Council, and the windows were affixed to common property by drilling into common property boundary walls and the underside of the slab of the balcony of lot 6. The work was not cosmetic work or a minor renovation, breached sections 108 and 111 of the Strata Schemes Management Act 2015 (NSW) and clause 24 of the by-laws, and caused damage to common property. The respondent's request for a section 149(1) common property rights by-law could not be entertained because no strata schemes application seeking that order had been filed, and the procedural requirements for such an...

Jurisdiction
Australia
Judgment Date
10 December 2021
Procedural Posture
Strata Schemes Application / Principal Judgment
Outcome
Application allowed; removal, make-good and access orders made.
Legal Topics
['unapproved Work' 'common Property' 'common Property Rights by Law' 'removal of Bi Fold Windows' 'access to Lot']
['land Law' 'strata Title'] ['unapproved Work' 'common Property' 'common Property Rights by Law' 'removal of Bi Fold Windows' 'access to Lot']

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Procedural Posture

Strata Schemes Application / Principal Judgment

Legal Issues

  1. 1 ['Whether the respondent breached the Strata Schemes Management Act 2015 (NSW) and the strata plan by-laws by installing bi-fold windows enclosing the terrace of Lot 1 without approval.' 'Whether the installation of the bi-fold windows caused damage to common property.' 'Whether the Tribunal could make an order under section 149(1) of the Strata Schemes Management Act 2015 (NSW) prescribing a common property rights by-law when the respondent had filed no application seeking that order.' 'Whether removal, make-good and access orders should be made.']

Ratio Decidendi

The respondent installed bi-fold windows enclosing the terrace of Lot 1 without approval from the owners corporation or Council, and the windows were affixed to common property by drilling into common property boundary walls and the underside of the slab of the balcony of lot 6. The work was not cosmetic work or a minor renovation, breached sections 108 and 111 of the Strata Schemes Management Act 2015 (NSW) and clause 24 of the by-laws, and caused damage to common property. The respondent's request for a section 149(1) common property rights by-law could not be entertained because no strata schemes application seeking that order had been filed, and the procedural requirements for such an...

Court Disposition

Application allowed; removal, make-good and access orders made.

Orders

  • ['Within six (6) months of the date of this order, the respondent is to remove the bi-fold windows installed by her and which enclose the terrace of her lot.' 'Within six (6) months of the date of this order, the respondent is to make good all damage caused to the common property by the installation and removal of...