The Owners- Strata Plan No 86208 v Lowry and Ors [2014] NSWCATCD 226

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: The Owners- Strata Plan No 86208 v Lowry and Ors [2014] NSWCATCD 226 Hearing dates: 3 November 2014 Decision date: 18 November 2014 Jurisdiction: Consumer and Commercial Division Before: M Harrowell, Principal Member Decision: The application is dismissed Catchwords: Unreasonable unit entitlement allocation S183 Strata Schemes Management Act, 1996 Legislation Cited: Strata Schemes Management Act, 1996 Cases Cited: Sahade v The Owners - Strata Plan 62022 [2014] NSWCA 208 Category: Principal judgment Parties: The Owners-Strata Plan No 86208 (applicant) Other parties: Michelle Lowry, Andrew Best, Mary and Ahmad Mostafa on behalf of the PBA Mostafa Super Institute and Carol and William Bodell Representation: Applicant: Mr T Prehn - Executive Committee member Other parties: Ms M Lowry (in person) File Number(s): SCS 14/37641 Publication restriction: Unrestricted

reasons for decision 1. These proceedings relate to an application by the Owners Corporation SP 86208 for an order pursuant to section 183 of the Strata Schemes Management Act, 1996 (Act) to allocate unit entitlements among lots that are the subject of the strata scheme. 2. There are 40 Lots in the strata scheme. 3. The Owners Corporation was represented by members of the Executive Committee including Mr Prehn who provided oral submissions at the hearing on 3 November 2014. The Owners Corporation also provided written submissions. 4. The order was opposed by various Lot owners who filed written submissions (objectors). The objectors included Ms Lowry, Mr and Mrs Mostafa, Mr and Mrs Bodell and Mr Best. Only Ms Lowry appeared at the hearing on 3 November 2014. However the Tribunal has had regard to the submissions made at the hearing and those written submissions filed by the objectors. 5. The circumstances in which an order can be made are specified in section 183 (2) of the Act which provides: "An order may be made only if the Tribunal considers that the allocation of unit entitlements among the lots: 1. was unreasonable when the strata plan was registered or when a strata plan of subdivision was registered; or a1) was unreasonable when a revised schedule of unit entitlements was lodged at the conclusion of a development scheme, or 1. became unreasonable because of a change in the permitted land use, being a change (for example, because of a rezoning) in the ways in which the whole or any part of the parcel could lawfully be used, whether with or without development consent." 1. The present application is made on the basis that the allocation of unit entitlements was unreasonable when the strata plan was registered. The strata plan was registered on 2 December 2011. 2. Subsection 183 (3) of the Act provides that: "In making a determination under this section, the Tribunal is to have regard to the respective values of the lots and (if a strata development contract is in force in relation to the strata scheme) to such other matters as the Tribunal considers relevant." 1. Subsection 183 (4) requires that any application for an order under section 183 is to be "accompanied by a certificate specifying the valuation, at the relevant time of registration…, of each of the lots to which the application relates". (Emphasis added) There are requirements for the qualifications of the valuer under subsection 183 (5).