NSW Caselaw
Reported Decision: (2007) Titles Cases 80 -119
New South Wales Court of Appeal
CITATION: The Owners of Strata Plan No 3397 v Tate [2007] NSWCA 207
HEARING DATE(S): 11 May 2007
JUDGMENT DATE: 16 August 2007
JUDGMENT OF: Mason P at 1; McColl JA at 2; Harrison J at 78
DECISION: (1) Appeal allowed with costs. (2) Cross appeal allowed with costs. (3) Judgment and orders of Rolfe DCJ of 17 November 2005, save order 3(c) be set aside. (4) In lieu thereof, judgment for the respondent for $18,758.14 plus interest, such interest to run from the date of the overpayments. (5) Appellant to pay one-quarter of the respondent's costs of the trial before Rolfe DCJ, and, pursuant to s 229 of the Strata Schemes Management Act 1996, such costs to be payable by contributions levied in relation to lots other than lots owned by the respondent. (6) Respondent to pay three quarters of the appellant's costs of the trial before Rolfe DCJ. (7) The appellant and the respondent to have a certificate under the Suitors' Fund Act 1951 if otherwise entitled.
CATCHWORDS: STRATA SCHEMES – by-laws – proper construction of by-law giving exclusive use of common property (a lift) to a proprietor – terms and conditions attaching to exclusive use – costs attributable to the repair, maintenance, renewal and replacement of the lift – relationship between obligations imposed by by-law and obligation to meet levies for the upkeep of common property generally - STRATA SCHEMES – by-laws – principles of interpretation – to be construed consistently with statutory context – "series of enactments" by which proprietors in a body corporate administer their affairs – public purpose going beyond function of facilitating internal administration of body corporate – to be interpreted objectively by what they would convey to a reasonable person – court to take into account their constitutional function in strata scheme in regulating rights and liabilities of proprietors – tight rein to be kept on recourse to surrounding circumstances (D)
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