Ozslam Pty Ltd v The Owners Strata Plan No. 1436 [2018] NSWCATCD 48

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ozslam Pty Ltd v The Owners Strata Plan No. 1436 [2018] NSWCATCD 48 Hearing dates: 15 August 2018 Date of orders: 20 August 2018 Decision date: 20 August 2018 Jurisdiction: Consumer and Commercial Division Before: S Westgarth, Deputy President Decision: (1) That, within 28 days after the date of this order, pursuant to the Tribunal's power under sections 232(1)(a) and section 232(1)(e) of the Strata Schemes Management Act 2015 (NSW), the Respondent, at its cost, is to line mark the exclusive use parking areas of common property marked "A" (Exclusive Use Area A) and "B" (Exclusive Use Area B) in accordance with the plan annexed to Special By-Law 30, with the correct position and boundaries of the Exclusive Sue Area A and Exclusive Use Area B and do whatever other works are required to ensure that the Exclusive Use Area A and Exclusive Work Area B are made suitable for parking a motor vehicle. Catchwords: Exclusive use by-law – use of common property Legislation Cited: Civil and Administrative Tribunal Act 2013 Strata Schemes Management Act 2015 Category: Principal judgment Parties: Ozslam Pty Ltd (Applicant) The Owners Strata Plan No. 1436 (Respondent) Representation: T Beck (director for the Applicant)

M Green (Respondent) File Number(s): SC 18/21583 Publication restriction: Unrestricted

REASONS FOR DECISION

Background 1. The applicant is the owner of lot 4 in a strata scheme in Rose Bay and the application concerns difficulties which the applicant has in relation to accessing and exiting from the car space allocated to lot 4. 2. The applicant was represented by a director, Ms T Beck. The Respondent was represented by Mr M Green, the Chair of the Strata Committee (and a lot owner). 3. The application sought the following four orders: (1) That, within 14 days after the date of this order, pursuant to the Tribunal's power under sections 232(1)(a) and section 232(1)(e) of the Strata Schemes Management Act 2015 (NSW), an order that the Respondent, at its cost, line mark the exclusive use parking areas of common property marked "A" (Exclusive Use Area A) and "B" (Exclusive Use Area B) in accordance with the plan annexed to Special By-Law 30, with the correct position and boundaries of the Exclusive Sue Area A and Exclusive Use Area B and do whatever other works are required to ensure that the Exclusive Use Area A and Exclusive Work Area B are made suitable for parking a motor vehicle. (2) That within 7 days after the date of this order, pursuant to the Tribunal's power under section 232(1)(e) of the Strata Schemes Management Act 2015 (NSW), an order that the Respondent pay the Applicant the amount of $4,239.47, being the costs for the damage caused to the Applicant's motor vehicle as a result of the Respondent failing to take enforcement action against the owners of Lot 1 and Lot 3 for a breach of By-Law 3 and Special By-Law 30. (3) That, within 14 days after the date of this order, pursuant to the Tribunal's power under section 232(1)(e) of the Strata Schemes Management Act 2015 (NSW), an order that the Respondent serve a notice to comply with By-Law 2, By-Law 3 and Special By-Law 30 on the owners of Lot 3 and Lot 1, and if necessary, subsequently make application to the Tribunal for the imposition of a civil penalty in circumstances where the breach is repeated. (4)That, pursuant to the Tribunal's powers under section 60(2) of the Civil and Administrative Tribunal Act 2013 (NSW), the Respondent pays the Applicant's costs of, or incidental to, proceedings before the Tribunal (including the Applicant's costs incurred in preparing and filing an application for mediation under section 218 of the Strata Schemes Management Act 2015 (NSW)). 1. The applicant relied upon the following evidence: 1. The affidavit of T Beck dated 7 June 2018 (marked Exhibit A); and 2. Ms Beck's oral evidence given at the hearing. 1. The respondent relied upon the following evidence: 1. The oral evidence of Mr Green given at the hearing and the folder of material and submissions filed with the Tribunal on 21 June 2018 in accordance with prior directions; and 2. The oral evidence of Ms M Loutsopoulos (the owner of lot 3) given at the hearing. 1. All witnesses were sworn in.