Tolhurst v Owners Corporation SP 72114 [2018] NSWCATCD 23

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Tolhurst v Owners Corporation SP 72114 [2018] NSWCATCD 23 Hearing dates: 21 May 2018 Date of orders: 20 June 2018 Decision date: 20 June 2018 Jurisdiction: Consumer and Commercial Division Before: J A Ringrose, General Member Decision: 1. The application is dismissed 2. Each party is to bear its own costs Catchwords: Validity of Owners Corporation resolution – removal of tanks installed on common property – application for resolution of a dispute between the Owners Corporation and a lot owner. Legislation Cited: Strata Schemes Management Act 2015 ss. 24, 108 and 232 Cases Cited: The Owners Strata Plan Number 30621 v Shum [2018] NSWCATAP 15 Walsh v Owners Strata Plan 10349 [2017] NSWCATAP 230 Category: Principal judgment Parties: Jennifer Tolhurst – Applicant Owners Corporation SP72114 – Respondent Representation: Mr Fleming, Solicitor appeared for the applicant Pigott Stinson Lawyers for the applicant Mr Leiker appeared for the respondent File Number(s): SC 17/46870 Publication restriction: Nil

REASONS FOR DECISION

Application 1. By an application filed on 31 October 2017 the applicant as the owner of lot 1 in strata plan 72114 sought an order that the resolution passed by the Owners Corporation on 15 August 2017 be declared invalid and a further order pursuant to s. 232 of the Strata Schemes Management Act 2015 that the Owners Corporation remove the water tanks installed on the common property outside lot 1. 2. She claimed that she was not consulted about the proposed installation of water tanks on the common property outside her lot and that there was no evidence provided to her to establish that the location chosen was the only available site. 3. She claimed further that water pumps connected to the tank would generate noise and have an adverse impact on the property value of lot 1 and its rental return. 4. The applicant further asserted that the notice of the Extraordinary General Meeting held on 1 August 2017 did not comply with cl 8(d) of sch 1 of the Strata Schemes Management Act and that the Owners Corporation had unreasonably refused to hold off the installation pending mediation. 5. On 6 December 2017 directions were made for both parties to file evidence and submissions and in accordance with those directions the relevant material was filed.