Lipscher and Ors v The Owners – Strata Plan No 30995 [2017] NSWCATCD 2

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lipscher and Ors v The Owners – Strata Plan No 30995 [2017] NSWCATCD 2 Hearing dates: 7 March 2016, 6 April 2016 and 18 July 2016 Decision date: 05 January 2017 Jurisdiction: Consumer and Commercial Division Before: J A Ringrose, General Member Decision: 1. The appeal is allowed 2. The decision of the Adjudicator made on 9 September 2015 is set aside 3. The passing of a resolution in relation to item 3.7 – western balustrade replacement at the extraordinary general meeting of the Owners Strata Plan 30995 held on 31 March 2015 be declared invalid. 4. The Owners Corporation is not permitted to replace the Western Balustrades of Units 5,6,7 and 8 except to the extent that this action is authorised by a special resolution being passed at a general meeting of the Owners Corporation that specifically authorises such action as required by section 65A(1) of the Strata Schemes Management Act 1996. 5. The appellants are to provide written submissions as to costs, if they are so advised within 28 days of the date of these orders. The respondent and the other parties are to provide submissions in reply 28 days thereafter. The issue of costs will then be determined on the papers. Catchwords: STRATA APPEAL – admission of new evidence – works to be undertaken by Owners Corporation, maintenance or new works – amendment of motions. Legislation Cited: Strata Schemes Management Act 1996 ss. 62, 65A, 177, 181, 188 Cases Cited: August v Commissioner of Taxation [2014] FCAFC 85 The Owners – Strata Plan 6534 v El Khouri [2015] NSWCATCD 147 Port of Melbourne Authorities v Anshun [1981] 147 CLR 589 Stolfa v Hempton [2010] NSW CA 218 Owners Strata Plan 50276 v Thoo [2013] NSWCA 270 at para 125 Stolfa v Strata Plan 4366 Wang v Owners Corporation SP 69174 [2010] NSWCTTT 172 Strata Plan 425 v Sidwell [1987] NSW Titles Cases 30-076 The Owners – Strata Plan 21702 v Krimbogiannis [2014] NSWCA 411 Owners Corporation SP 7596 v Risadorie [2003] NSWSC 966 Nolan v Owners Corporation SP 5803 [2013] NSWCTTT 220 Owners Corporation SP 32033 v Mullens [2015] NSWCATD 23) Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187 Beale v GIO at 443 Port of Melbourne Authorities v Anssun [1981] 147 COR 589 Proprietors of Strata Plan 435 v Sidwell [1987] NSW Titles Cases (30 – 076) Ridis v Strata Plan 10308 [2008] NSWCA 248 Category: Principal judgment Parties: Alena Lipscher, Scott Dumbrell and Margaret Bentivoglio (Applicants) Owners Corporation SP 30995 (Respondent) John Maddalena (8) and Wai Lee (6) (Additional Respondents) Representation: Mr Kent of Kent Attorneys appeared for the Applicants Mr Ton of Grace Lawyers appeared for the respondent. File Number(s): SCS 15/54855 Publication restriction: Nil