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

Supreme Court New South Wales

Medium Neutral Citation: Pollak v The Owners – Strata Plan No 2834 [2020] NSWSC 784 Hearing dates: 21 February 2020 Date of orders: 24 June 2020 Decision date: 24 June 2020 Jurisdiction: Common Law Before: Simpson AJ Decision: 1. Leave to appeal against the orders of the Appeal Panel of the NSW Civil and Administrative Tribunal on 16 September 2019 is refused. 2. The plaintiffs are to pay the defendant's costs of the proceedings. Catchwords: LAND LAW – strata title – by-laws – construction of by-law – effect of new by-law passed following the enactment of the Strata Titles Act 1973 (NSW) – exclusive use of common property – provision for amendment of, addition to or repeal of exclusive use by-law LAND LAW – strata title – common property – whether orders for remediation of common property lacked specificity such as to amount to error of law – whether failure to take into account – relevant (and necessary) consideration – substantial loss of amenity in Lot owners losing direct access to the roof of the building – direct access to roof not part of original, approved development – no evidence that subsequent approval has been given – whether denial of procedural fairness where reliance placed on the term "usual undertaking as to damages" as defined in interim consent orders Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 27, 32, 80, 83(1), Sch 4, cl 12 Conveyancing (Strata Titles) Act 1961 (NSW) Strata Titles Act 1973 (NSW), Sch 4, cl 15 Strata Schemes Management Act 2015 (NSW), ss 29, 149, 229, 232, 241 Cases Cited: Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425; (2019) 19 BPR 39,255 Pollack v The Owners – Strata Plan No. 2834; The Owners – Strata Plan No 2834 v Pollack [2019] NSWCATAP 227 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 The Owners Strata Plan No 30621 v Shum [2018] NSWCATAP 15 Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 Wingecaribee Shire Council v De Angelis [2016] NSWCA 189 Category: Principal judgment Parties: Joseph Pollak (First plaintiff) Denise Solden (Second plaintiff) The Owners – Strata Plan No 2834 (Defendant) Representation: Counsel: D M J Bennett QC/C M Lee (Plaintiff) M Ashhurst SC/M Forgacs (Defendant)