Fayle & Minell Cleggett, v The Owners Corporation Strata Plan No 35541 [2015] NSWCATCD 6

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Fayle & Minell Cleggett, v The Owners Corporation Strata Plan No 35541 [2015] NSWCATCD 6 Hearing dates: 15 August 2014 Decision date: 15 January 2015 Jurisdiction: Consumer and Commercial Division Before: K Ross, General Member Decision: The appeal is dismissed. The original decision of the Adjudicator dismissing the application is affirmed, but for the reasons set out herein. Catchwords: By-law, exclusive use Legislation Cited: Strata Schemes Management Act, 1996 Cases Cited: Italian Forum Limited v Owners – Strata Plan 60919 [2012] NSWSC 895; Chauhan v Jaynrees Services Pty Ltd [2008] NSWSC 969; James v Owners Strata Plan No SP 11478 [2012] NSWSC 590. Category: Principal judgment Parties: Fayle & Minell Cleggett (applicants) The Owners - Strata Plan No 35541 (respondent) Representation: Counsel: Wells for the applicant

Solicitors: Freeman for the applicant; Ponte for the respondent File Number(s): SCS 14/15227 Publication restriction: Unrestricted

Reasons for decision

Application 1. The application seeks an order setting aside the order of Adjudicator J. Smith dismissing the adjudication application in proceedings SCS 13/62330, and substituting the following: 1. An order pursuant to s 157 (1)(a) of the Strata Schemes Management Act, 1996 that the repeal of Special By-law 8 concerning contributions towards the costs of the air conditioning system servicing lots 2 – 8 and 10 – 14, on 14 May 2013, be revoked. 2. An order pursuant to s 157 (1)(b) or s 157 (1) (c) of the Strata Schemes Management Act, 1996 that Special By-Law 8 concerning contributions towards the costs of the air conditioning system servicing lots 2 – 8 and 10 – 14, which was repealed on 14 May 2013, be revived. 3. Alternatively, an order pursuant to s 169 of the Strata Schemes Management Act, 1996 directing the respondent to take all steps reasonably required to remove the air conditioning system servicing lots 2 – 8 and 10 – 14 from the common property. 1. The adjudication dealt with two By-Laws, one in relation to air conditioning and one in relation to the lift. The dismissal of the adjudication application in respect of the By-Law dealing with the lift is not the subject of appeal.