Olive Grove Investment Holdings Pty Ltd v The Owners-Strata Plan No 5942 [2015] NSWCATCD 120

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Olive Grove Investment Holdings Pty Ltd v The Owners-Strata Plan No 5942 [2015] NSWCATCD 120 Hearing dates: 9 September 2015 Decision date: 14 October 2015 Jurisdiction: Consumer and Commercial Division Before: J A Ringrose, General Member Decision: 1. The appeal is dismissed pursuant to s. 181 of the Strata Schemes Management Act 1996 and the Order of the Adjudicator is affirmed. Catchwords: Exclusive use By-law Legislation Cited: Strata Schemes Management Act 1996, s 158 Category: Principal judgment Parties: Olive Grove Investment Holdings Pty Ltd (applicant) The Owners-Strata Plan No 5942 (respondent) Representation: Mr McMahon of Counsel appeared for the applicant Solicitors Kevin Benson Lawyers Ms Crittenden, solicitor appeared on behalf of the respondent. File Number(s): SCS 15/44239 Publication restriction: Nil

REASONS FOR DECISION

BACKGROUND 1. Strata Plan 5942 is located at [****] Maroubra. It initially comprised 8 lots being 2 three bedroom lots, 5 one bedroom lots and 1 two bedroom lot with a ground floor store room which was lot 3 now owned by the applicant. Each lot had one garage and there were three common property parking spaces for visitor parking. These were not marked on the strata plan. 2. The original owner of lot 3 was the developer of the strata plan and on 15 September 1988 a duly convened general meeting of the Owners Corporation resolved to lodge a development application with the Randwick City Council in the following terms; "The body corporate consents to the lifting of a Randwick Council restriction as to habitation on parts of lot 3 being a unit on the ground floor of 269-271 Maroubra Road, Maroubra." 1. On 28 September 1989 P & D Investments Pty Ltd (a predecessor in title of lot 3) lodged a development application with the Council and that application was affixed with the common seal of the Owners Corporation. The application sought the Council's consent to convert to ground floor storeroom of lot 3 into a separate two bedroom unit. 2. The development application was reviewed by Council initially and a revised application was submitted with proposals that parking spaces be marked, sealed and drained in accordance with Council's development control plan. 3. By a letter dated 20 April 1990 the amended development application lodged by P & D Investments was approved and shortly thereafter works were undertaken, which included the conversion of the ground floor storeroom of lot 3 into a separate two bedroom building which since been known as unit 9, certain landscaping works and the building of a garage door on part of a common property which was then designated as being for the use of unit 9 within the application itself. Three common parking spaces were constructed and designated as visitor spaces. 4. No exclusive use by-law was ever obtained by any predecessor in title of lot 3 to formalise the exclusive use for the occupier of unit 9 of the parking space within the carport area which had a garage door added. 5. On 24 February 2000 a predecessor in title to lot 3 put forward a motion seeking a grant of exclusive use of the unit 9 parking space to be added to lot 3. This proposal was rejected. 6. The applicant purchased lot 3 in November 2010 and it is claimed that between November 2010 and October 2014 the garage door of the parking space which had been available for unit 9 became increasingly rusty and fell into a state of disrepair. It is claimed that the parking space was not used by a tenant who occupied the property from 2006 to 2014 until late 2013 when he began to drive a smaller vehicle. 7. In about October 2014 Mrs Richards, on behalf of the applicant, ascertained that the owner of unit 9 (being part of lot 3) was entitled to carry out repairs to the garage door but that no formal arrangement or exclusive use of the space had ever been approved. She engaged a solicitor to prepare a draft motion and an exclusive use by-law which was then submitted to an extraordinary general meeting of the Owners Corporation on 12 December 2014. The motion was not approved and an application was filed for mediation and adjudication on 16 February 2015. In that application an order was sought pursuant to s. 158(1) of the Act that a by-law in relation to exclusive use of a car space was unreasonably refused by the Owners Corporation at a meeting held on 12 December 2014. 8. The adjudication application was ultimately dealt with by Strata Schemes Adjudicator Eftimiou and on 29 June 2015 she dismissed that application.