The Owners Strata Plan No 74698 v Jacinta Investments Pty Ltd [2021] NSWCATAP 387

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: The Owners Strata Plan No 74698 v Jacinta Investments Pty Ltd [2021] NSWCATAP 387 Hearing dates: 24 November 2020 Date of orders: 30 November 2021 Decision date: 30 November 2021 Jurisdiction: Appeal Panel Before: M Harrowell, Deputy President J Kearney, Senior Member Decision: (1) The appeal is allowed in part. (2) Orders 3(a) and (b) made 2 June 2020 are set aside and in lieu thereof the following orders are made: Pursuant to Part 7 Divisions 1 and 2 of the Strata Schemes Management Act 2015, the respondent (The Owners – SP 74698) is to take all necessary steps to convene a general meeting, pass a special resolution and register a common property rights by-law in respect of common property in favour of the applicant (Jacinta Investments Pty Ltd) and the owners from time to time of lot 83 on the following terms: a) Exclusive use and enjoyment is to be granted to the owner of lot 83 in respect of the common property being the ground floor area depicted in the survey of SJ Dixon Surveyors Pty Ltd dated 9 July 2019 found in the Appeal Bundle at AB 1078. b) The owner of lot 83 is responsible for all costs and expenses in relation to the preparation and registration of the by-law by the owners corporation; c) The owner of lot 83 has permission to install a glass awning the cleaning, repair and maintenance for which it was responsible; d) In using the common property area, the owner of lot 83 is, at its cost, responsible for: I. keeping all security and fire doors closed on the ground floor; II. cleaning and maintaining the ground floor common property and lobbies; III. not permitting loud noise or any disturbances to residents in the building as follows: i. on Monday, Tuesday, Wednesday, Thursday and Sunday from 8:30 pm onwards; ii. on Friday night from 10:00 pm onwards; and iii. on Saturday nights from 12:00 am onwards. (3) Order 2 made 20 June 2020 is set aside and in lieu thereof the following order is made concerning the order for payment of damages: The respondent (The Owners – SP 74698) is to levy all lot owners, other than the applicant (Jacinta Investments Pty Ltd) in respect of the award for damages payable by the respondent to the applicant pursuant to Order 1 that 1 June 2020, such levy is to be in proportion to the unit entitlements of each lot owner other than the applicant. (4) The parties have liberty to apply to the Tribunal in the proceedings at first instance in connection with any dispute about the implementation of order 2. (5) In respect of costs of the proceedings at first instance and of this appeal and on the question of whether an order of the type in order 3 above should be made in respect of such costs, the following directions apply: (a) within 14 days from the date of this decision any applicant for costs (costs applicant) is to file and serve evidence and submissions in support of that application (costs application). (b) Within 28 days from the date of this decision, the respondent to the costs application is to file and serve evidence any submissions in response. (c) Within 42 days from the date of this decision the costs applicant is to file and serve any submissions in reply. (d) The submissions are to include submissions about whether an order should be made dispensing with a hearing. (6) Save as provided above, the appeal is dismissed. Catchwords: LAND LAW – Strata Scheme – subdivision and transfer of common property – agreement to transfer – common property – agreement to grant of exclusive use rights – enforceability of agreement – certificate issued under Strata Schemes Development Act – conclusive evidence – when certificate operates – power of Tribunal to determine dispute concerning transfer of common property – power of Tribunal to make orders for the registration of an exclusive use by-law. LAND LAW – Strata schemes –power of the Tribunal to make order under the Strata Schemes Management Act excluding a successful lot owner from being levied in respect of an award of damages and costs – operation of ss 90 and 104 of the Strata Schemes Management Act – scope of power under s 232 of the Strata Schemes Management Act. Legislation Cited: Agricultural Tenancies Act 1990 (NSW) Civil and Administrative Tribunal Act, 2013 (NSW) Civil and Administrative Tribunal Rules, 2014 (NSW) Conveyancing Act 1919 (NSW) Interpretation Act 1987 (NSW) Limitation Act 1969 (NSW) Real Property Act 1900 (NSW) Strata Schemes and Development Act 2015 (NSW) Strata Schemes (Freehold Development) Act 1973 (NSW) (repealed) Strata Schemes Management Act 1996 (NSW) (repealed) Strata Schemes Management Act 2015 (NSW) Cases Cited: Australian Broadcasting Commission v Australian Performing Right Association Ltd [1973] HCA 36; 129 CLR 99 Black v Garnock [2007] HCA 31; (2007) 230 CLR 438 Breskvar v Wall [1971] HCA 70; 126 CLR 376 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Collins v Urban [2014] NSWCATAP 17 Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 Deane v The City Bank of Sydney [1904] HCA 44; 2 CLR 198 Ferguson v John Dawson & Partners (Contractors) Ltd [1976] WLR 1213 Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425 Maywood Aust Pty Ltd v Owners SP 85338 (No. 3), SC 1712874 (unpublished) Owners of Strata Plan No 80412 v Vickery (No 2) [2019] NSWCATAP 97 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Limited [2015] NSWSC 289 The Owners – Strata Plan No. 37762 v Pham [2006] NSWSC 1287 Vickery v The Owners – Strata Plan No. 80412 [2020] NSWCA 284 Texts Cited: Nil Category: Principal judgment Parties: The Owners Strata Plan No 74698 (Appellant) Jacinta Investments Pty Ltd (Respondent) Representation: Counsel: V Kerr SC, N Apkarian (Appellant) B Mason (Respondent)