Gazebo Penthouse Pty Limited v Owners Corporation SP 73943 [2015] NSWCATCD 93

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Gazebo Penthouse Pty Limited v Owners Corporation SP 73943 [2015] NSWCATCD 93 Hearing dates: 6 March 2015 Decision date: 04 August 2015 Jurisdiction: Consumer and Commercial Division Before: T Simon, Senior Member Decision: 1 Matter SCS 12/20802 is dismissed 2 Matter SCS 13/21405 is dismissed Catchwords: EXCLUSIVE USE - unreasonably refused Legislation Cited: Strata Schemes Management Act 1996 (NSW) Cases Cited: The Owners Strata Plan No 73943 v Gazebo Penthouse Pty Limited [2014] NSWSC 1536 Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority [2009] NSWCA 178 Casuarina Rec Club Pty Ltd v The Owners - Strata Plan No 77971 [2011] NSWCA 159 Halliday v Nevill [1984] HCA 80 Plenty v Dillon [1991] HCA 5 The Owners of Strata Plan No 3397 v Tate [2007] NSWCA 207 Category: Principal judgment Parties: Gazebo Penthouse Pty Limited (applicant) Owners Corporation SP73943 (first respondent) Anthony & Christine Froggatt (second respondent – submitting appearance) Richard Leszek & Margaret Anna Prokop (third respondent – submitting appearance. Representation: File Number(s): SCS 12/20802 & SCS 13/21405 Publication restriction: Nil

Reasons for the decision

Background to the Matter 1. These reasons deal with applications SCS 13/21405 and SCS 12/20802. 2. Matter SCS 12/20802 arises from an initial adjudication application SCS 11/53748. The adjudication application was lodged on 3 November 2011 by the owner of lot 61. The adjudication application sought the following: The applicant wishes to come to an agreement with the Owners Corporation about restoration to the applicant, as the Owner of Lot 61, of exclusive use of Lift No.3 in the Tower Building. 1. The applicant is the owner of lot 61. The respondent is the Owners Corporation of strata plan number 73943. The strata scheme comprises of an 18-story tower block and an adjoining building. The adjoining building is subject to a separate strata plan, but that strata plan is also one of the 64 units comprising strata plan 73943. The dispute relates to the entitlements of the parties to use the elevators servicing the tower block. Lot 61 is the penthouse on level 18 of the tower block. 2. The following facts are largely undisputed. The parties agree that since the registration of the strata plan, lift 3 has been programmed so that it only services levels 16, 17 and 18 of the tower and that on rare occasions the lift has been used to service other lots for the movement of large items such as furniture and that it is the emergency lift. On or about 6 July 2011, the Owners Corporation caused lift 3 to be reprogrammed to allow it to service all the levels, being 1 to 18 of the tower. No special resolution was passed prior to the reprogramming, as would be required if section 65A of the Act applied. The applicant has never paid for the maintenance of the lift and there is nothing to suggest that they have ever been asked to do so. 3. The applicant maintains that lift 3 is a "service that exclusively services its individual lot" because together with lots 60 and 166 they have had exclusive use since the strata plan was registered in 2005. The respondent's case is that the lift should be able to be used by all lots including those on levels 1 to 17 and that it is not subject to exclusive use because it is mechanically able to service all the lots. Both parties also rely on the interpretation of by-law 43 to establish their respective positions. Relevantly by-law 43 states: 43.1 The owner of each lot has the right to the exclusive use and enjoyment of any service that exclusively services its individual lot that is located in and forms part of the common property ("exclusive services"). 43.2 The owner is responsible for the ongoing repair and maintenance of the Exclusive Service. 1. The substantive application in relation to the adjudication was decided on 22 March 2012 and the Adjudicator dismissed the application. In effect the Adjudicator found that although the lift had mainly been used by the applicant for many years (except for moving things such as large furniture), the lift had always been common property and that the requisite by-law, that is by-law 43 did not confer an exclusive right on the owner of lot 61 in respect of the lift. 2. The applicant subsequently lodged an appeal, SCS 12/20802 to the Tribunal on 12 April 2012. 3. On 16 April 2012, the applicant also filed a fresh application for adjudication, SCS 13/21405, seeking an order pursuant to section 158 of the Act to allow exclusive use and enjoyment of lift no 3 to lots 60, 61 and 166. That adjudication was transferred to the Tribunal for hearing prior to the Adjudicator making a decision on the papers. 4. Appeal SCS 12/20802 subsequently dealt with the appeal of the dismissed adjudication and the fresh adjudication together. By order made 24 April 2014, the Tribunal allowed the appeal and revoked the order for dismissal made by the Adjudicator in adjudication SCS 11/53748. The Tribunal ordered that the Owners Corporation restore the exclusive use of lift 3 to lot 61, and not interfere with the exclusive use subject to a lawful repeal of or variation of by-law 43. As a consequence the creation of an exclusive use by-law was not necessary and application SCS13/21405 was dismissed.