The Owners - Strata Plan No 68255 v Downs; Downs v The Owners - Strata Plan No 68255 [2021] NSWCATCD 34

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: The Owners - Strata Plan No 68255 v Downs; Downs v The Owners - Strata Plan No 68255 [2021] NSWCATCD 34 Hearing dates: 17 August 2020, 18 August 2020, 30 October 2020 and 6 November 2020, final written submissions received 14 December 2020 Date of orders: 22 July 2021 Decision date: 22 July 2021 Jurisdiction: Consumer and Commercial Division Before: D Robertson, Senior Member Decision: (1) Order that Helena Marie Downs carry out, within the area identified as Area 2 in the Surveyors Report dated 16 August 2017 prepared by Mr Gary Medway of Geographic Solutions Registered Surveyors, the works identified in the scope of works in Section 5.0 of the report of Tim Sherwood of SJA Construction Services Pty Ltd dated 27 May 2020 (except the works referred to in items 6(29), 9(44), 14(68), 15(80), 16(81-83), 17(84), 18(85-89), 19(90-94) and 20(95-110) of that scope of works) (Reinstatement Works) in order to remove alterations and additions undertaken by her or on her behalf to the common property in connection with Lot 15 in Strata Plan No. 68255 and reinstate that common property to its previous condition. (2) Order that Helena Marie Downs ensure that the Reinstatement Works are carried out in a proper and competent manner, by appropriately qualified, licensed and insured contractors, in a manner that does not disturb the peaceful enjoyment of the owners or occupiers of the other lots in Strata Plan No. 68255 and in accordance with all applicable laws and by-laws, and are completed within 12 months of the date of this order. (3) Order that, in the event that Helena Marie Downs fails to comply with orders 1 and 2 above, The Owners – Strata Plan No 68255 be permitted to enter Lot 15 in Strata Plan No. 68255 and carry out the Reinstatement Works in accordance with section 120 of the Strata Schemes Management Act 2015. (4) Order that both applications be otherwise dismissed. (5) Direct that either party may file and serve written submissions within 14 days of the date of this decision seeking an order in relation to the costs of the proceedings. (6) Direct that, if either party files submissions in accordance with order (5), the other party may file submissions in response within a further 14 days. (7) Direct that any submissions filed in accordance with orders (5) and (6) must address the question whether the question of costs may be determined on the papers and without a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) Catchwords: LAND LAW – Strata title – Common property – Identification of common property – Delineation of boundaries between lot and common property – Interpretation of strata plan – Whether order should be made restraining a lot owner from exclusively occupying common property LAND LAW – Strata title – Owners corporation – Meetings of owners corporation – Whether the Civil and Administrative Tribunal has jurisdiction to order an owners corporation to convene a general meeting Legislation Cited: Strata Schemes (Freehold Development) Act 1973 (NSW Strata Schemes (Freehold Development) Regulation 1997 (NSW) Strata Schemes Management Act 1996 (NSW) Strata Schemes Management Act 2015 (NSW) Strata Titles Act 1973 (NSW) Cases Cited: Bate v The Owners - Strata Plan No 60549 [2018] NSWCATCD 36 Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425 Lin v The Owners - Strata Plan No 50276 [2004] NSWSC 88; (2005) NSW ConvR 56-105 Melani v The Owners - Strata Plan No 22214 [2017] NSWCATCD 73 Owners Corporation - Strata Plan No 22607 v Yang [2018] NSWCATCD 3 Symes v The Owners - Strata Plan No 31731 [2001] NSWSC 527 Symes v The Proprietors Strata Plan No 31731 [2003] NSWCA 7 The Owners - Strata Plan No 37762 v Pham [2006] NSWSC 1287 The Owners - Strata Plan No 63731 v B & G Trading Pty Ltd [2020] NSWCATAP 202 The Owners – Strata Plan 85044 v Murrell [2020] NSWSC 20 The Proprietors - Strata Plan No 9616 v Knaggs (1982) NSW Titles Cases 13-037; 12 February 1982 Vickery v The Owners - Strata Plan No 80412 [2020] NSWCA 284 Walsh v The Owners - Strata Plan No 10349 [2017] NSWCATAP 230 Westfield Management Ltd v Perpetual Trustee Company Ltd [2007] HCA 45, 233 CLR 528 Category: Principal judgment Parties: The Owners - Strata Plan No 68255 (Applicant in SC 20/08127; Respondent in SC 20/12151)