Lindsay Player, Carol Player and Benuki Pty Limited v Themistoclis Christou and Amalia Christou

reasons for decision APPLICATION 1.This application relates to a four lot strata scheme. The applicants own lots 3 and 4 in Strata Plan 37585 and the first respondents own lots 1 and 2 in Strata Plan 37585. 2.The company Benuki Pty Ltd was added as an applicant to these proceedings at the hearing with the consent of the other parties. Benuki Pty Ltd is the trustee of the applicants' self-managed superannuation fund and has recently become the registered proprietor of lot 4 in Strata Plan 37585. 3.There is a common property driveway between the applicants' lots and the first respondents' lots. Lots 3 and 4 have the right to seven car parking spaces which are marked on the Strata Plan and are situate immediately behind lot 4. Lot 2 has the right to seven car parking spaces which are also marked on the Strata Plan and are situate immediately behind lot 2. Part of lot 1 consists of an area 4.85m by 7.85m which is shown on the strata plan as being for "Covered Car Spaces". 4.The applicants and the first respondents each operate a business from the lots they own. The applicants' business is smash repairs and the first respondents' business is in commercial catering equipment. 5.The first respondents have brought a cross application against the applicants in proceedings SCS 13/50798 seeking orders against the applicants in connection with the manner in which the applicants use common property, damage to common property and unauthorised additions or alterations to common property. 6.It is plain that the applicants and the first respondents are unable to co-operate in the management of the Owners Corporation so far as use of common property and the management of by-laws is concerned. There is also the issue of unauthorized additions to lots and common property. 7.The parties have in the past had an acrimonious relationship marked by alleged abuse and assaults. There have been applications made for apprehended violence orders. 8.A strata managing agent has been appointed to the second respondent pursuant to section 162 of the Strata Schemes Management Act 1996 (the "Act"). 9.The manager has consented to the Owners Corporation being joined as the second respondent in the proceedings. 10.At the commencement of the hearing of this application the parties were offered every opportunity to resolve the disputes the subject of this application and application SCS 13/50798 which was heard at the same time as this application. Unfortunately, for reasons not disclosed, they were unable to agree on solutions of their own making to resolve the disputes and differences raised in this application and in application SCS 13/50798. 11.I should also add that there have been many applications made by the parties for orders and interim orders to be made under the Act by an Adjudicator. There have also been penalty applications and penalty orders made. I do not intend to set out the full history of the litigation between the parties, except where that is necessary. 12.In this application the applicants have applied for orders that the first respondents: a)be restrained from obstructing the common property of the strata scheme, including but not limited to the driveway and rear of the strata scheme, by removing all motor vehicles, kitchen equipment and garbage from the common property; b)forthwith remove the used commercial kitchen equipment and general rubbish on the designated parking areas and extending onto the common property at the rear of lots 1 and 2; and c)within 21 days of an order being made, remove the unauthorised works carried out to lots 1 and 2 being the enclosure of the car spaces at the front of the strata scheme and the construction of a mezzanine floor within lots 1 and 2 and restore the common property to its original condition. 13.The applicants seek an additional order to the effect that if the respondents do not comply with the order set out in paragraph 12(c) within 21 days, the second respondent by its employees servants and agents may in accordance with section 63(2) of the Act enter upon lots 1 and 2 to carry out the works to comply with the order. 14.Section 63(2) of the Act does not authorise an order of the type that the applicants seek in the preceding paragraph. In particular, section 63 of the Act does not authorise the second respondent to enter upon lot property. The section deals with the circumstances in which an Owners Corporation may carry out work on lot property and recover the costs. Section 63(5) of the Act provides the basis for an order permitting the second respondent to carry out the work described in paragraph 12(c). Section 63(5) states: Work required to be carried out under orderAn owners corporation may carry out work required to be carried out under an order made under this Act and may recover the cost of carrying out the work from the person against whom the order was made.' 15.Section 65 of the Act deals with the second respondent entering property to carry out work. JURISDICTION 16.On 30 April 2013 Strata Schemes Adjudicator Harrowell transferred this matter to the Tribunal pursuant to section 164 of the Act. 17.Section 184 of the Act provides that: If an Adjudicator refers to the Tribunal an application for an order that, but for the referral, could have been made by the Adjudicator, the Tribunal has the same powers as the Adjudicator to make an order (other than an interim order) or to dismiss the application. 18.Section 188 of the Act provides as follows: (1) An order made by the Tribunal may include such ancillary or consequential provisions as the Tribunal thinks fit. (2) For the purpose of securing compliance with an order of the Tribunal, the Tribunal may order any person who was the subject of the application for the order to do or refrain from doing a specified act with respect to a strata scheme. APPLICANT'S EVIDENCE 19.The applicants' evidence was contained in the following exhibits: a)Exhibit A, statutory declaration of Mr Player sworn 20 May 2013; b)Exhibit B, the documents attached to Grace lawyers letter dated 29 January 2014; and c)Exhibit C, a bundle of photographs taken on 6 February 2014. RESPONDENT'S EVIDENCE 20.The first respondents' evidence was contained in the following exhibits: a)Exhibit 1, statement of Mr Christou dated 19 March 2013 and annexures; b)Exhibit 2, statement of Mr Christou dated 10 December 2013 and annexures; c)Exhibit 3, statement of Mr Christou dated 5 February 2014 and annexures; d)Exhibit 4, page 25 of Mr Christou's 10 December 2013 statement with hand marking by Mr Christou; e)Exhibit 5, photograph from Wollongong Council documents of 23 November 2012; f)Exhibit 6, photograph of trench in driveway; and g)Exhibit 7, Strata Plan with trench in driveway marked. OBSTRUCTION OF COMMON PROPERTY 21.The first issue to be considered relates to the obstruction of the common property. As stated, above the applicants seek an order restraining the first respondents from obstructing the common property including but not limited to the driveway and rear of the strata scheme. They also seek an order that the first respondents remove all motor vehicles, kitchen equipment and garbage from the common property. 22.The applicants deal with this issue in paragraphs 20 - 34 of their written submissions. 23.It is relevant to record that on 17 December 2012 an interim order was made requiring the respondents, among other things, to comply with by-laws 2, 3 and 9 and with section 117 of the Act. 24.Section 117 of the Act provides: An owner, mortgagee or covenant chargee in possession (whether in person or not), lessee or occupier of a lot must not: (a) use or enjoy the lot, or permit the lot to be used or enjoyed, in such a manner or for such a purpose as to cause a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or (b) use or enjoy the common property in such a manner or for such a purpose as to interfere unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the common property, or (c) use or enjoy the common property in such a manner or for such a purpose as to interfere unreasonably with the use or enjoyment of any other lot by the occupier of the lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the lot.' 25.By-laws 2, 3 and 9 provide as follows: "An owner or occupier of a lot must not park or stand any motor or other vehicle on common property except with the written approval of the owners corporation." "An owner or occupier of a lot must not obstruct lawful use of common property by any person" "An owner or occupier of a lot must not deposit or throw on the common property any rubbish, dirt, dust or other material likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using the common property." 26.This issue seems to fall into two parts. First, the use of the common property driveway. Secondly, the common property at the rear of lot 2 adjacent to the car parking spaces which are marked on the Strata Plan as being attached to lot 2. 27.The statutory declaration of Mr Player sworn 20 May 2013 provides evidence that the respondents in the course of their business have in the past and continue to use the common property driveway that separates lots 1 and 2 (owned by the first respondents) from lots 3 and 4 (owned by the applicants) in a way that obstructs the use of the common property by the applicants and the employees of the business that is operated from lots 3 and 4 by the applicants. In particular, Mr Player states that the first respondents block and obstruct the common property driveway and use a forklift in that driveway which also obstructs his use of the driveway. Mr Player further states that this obstruction of the common property driveway has continued "so that my employees and I are unable to manoeuvre our vehicles in or out of the strata scheme." And that the first respondents' actions block access to lots 3 and 4. I would describe this as the first part of the applicants' obstruction of common property case. 28.The applicants have obtained interim orders dated 17 December 2012 in connection with the blockage and obstruction of the common property driveway. On 15 April 2013 a Strata Schemes Adjudicator was satisfied that the first respondents had breached the interim orders dated 17 December 2012 and imposed a penalty of $550.00 on the first respondents which was to be paid by 30 April 2013. At the hearing before me in February 2014 the first respondents had not paid the penalty. The excuses offered by Mr Christou for non-payment of the penalty, namely that it was his accountant's or his daughter's oversight, were not credible. 29.The first respondents' evidence in connection with the issue of the blockage and obstruction of the common property driveway is that the applicants block and obstruct the driveway, which I will consider in SCS 13/50798. Otherwise, the first respondents admit that before 11 March 2013 they would frequently use the common property driveway for loading and unloading equipment from delivery trucks. The first respondents state that after 11 March 2013 they have loading and unloaded trucks at the rear of lots 1 and 2. 30.So far as the second part is concerned, Mr Player's statutory declaration alleges that the respondents keep a large amount of items and equipment on the parking spaces for the benefit of lot 2 which are situate immediately behind that lot and that those items of equipment encroach upon common property. 31.Mr Player alleges in paragraph 18 of his statutory declaration that large amounts of items and equipment are being kept on common property and the parking spaces at the rear of the first respondents' lot and remain there. The basis for this statement so far as it refers to common property is not explained. I will take it as Mr Player's general impression. There is no way of knowing how Mr Player can ascertain with precision where the car parking spaces end and where common property begins. As a result I do not give this evidence a great deal of weight so far as it relates to storage of equipment on common property. 32.Exhibit C, a bundle of photographs taken on 6 February 2014, clearly shows that the first respondents have stored a large amount of used plant and equipment on the seven open car parking spaces at the rear of lot 2. It is not possible to say with any precision on the basis of these photographs whether the plant and equipment referred to encroaches onto common property. 33.In his final submissions on behalf of the first respondents, Mr Fini stated that there is nothing in the Act or in the by-laws which prevents the first respondents from using the car parking areas attached to lot 2 for the purpose of storing the plant and equipment which is shown on the photographs in Exhibit C. 34.The by-laws do not address the issue. 35.As regards the Act, Mr McKnight submitted in reply that the first respondents' actions in storing plant and equipment on the car parking areas attached to lot 2 were a nuisance because utilising the car parking spaces for storage of plant and equipment meant that the respondents' employees, suppliers and customers were unable to park in those spaces. That in itself is not, in my view, a nuisance or evidence of a nuisance. The inference to be drawn from this submission is that the groups of people identified were, because of the unavailability of the parking spaces, obliged to park on common property and therefore caused a nuisance. 36.There is no evidence before the Tribunal to establish that the first respondents' storage of plant and equipment on the car parking areas attached to lot 2 has encroached on to common property. A survey would establish to the necessary degree of certainty whether such an encroachment has taken place. 37.So far as section 117(a) of the Act is concerned, the evidence of Mr Player does not provide a basis for finding that the actions of the first respondent in using the car parking areas attached to lot 2 for the purpose of storing the plant and equipment as shown on the photographs in Exhibit C created a nuisance to the applicants in using lots 3 or 4 of Strata Plan 37585. 38.I do not accept Mr Knight's submission as referred to above, as it does not disclose an act of nuisance and otherwise relies upon inferences for which there is no basis for drawing and which I decline to draw. 39.So far as sections 117(b) and (c) of the Act are concerned, I have found that the applicants' evidence does not establish that the first respondents have stored of plant and equipment on common property adjacent to the car parking areas attached to lot 2. On that basis the applicants have not made out a case under sections 117(b) and (c) of the Act. 40.On the evidence before the Tribunal the applicants have not made out their case for an order that the first respondents' should remove the items and equipment on the parking spaces reserved for the benefit of lot 2 which are situate immediately behind that lot. I dismiss their application for an order requiring the first respondents to remove the used commercial kitchen equipment and general rubbish on the designated parking areas and extending onto the common property at the rear of lots 1 and 2. 41.On the basis of the evidence before the Tribunal I am satisfied on the balance of probabilities that the first respondents have obstructed the common property driveway of the strata scheme with motor vehicles and by using a forklift in breach of by-laws 2 and 3 as set out above and also in breach of section 117(b) and (c) of the Act. 42.I will make an order that the first respondents be restrained from obstructing the common property driveway of the strata scheme with motor vehicles and the use of a forklift. 43.In connection with the use of the common property driveway it seems to me that by-laws 2 and 3 are most probably not adequate to regulate the parties use of the common property driveway in such a way that each party may make use of the driveway for the benefit of their business and at the same time not restrict or inhibit the other party's ability to conduct its business on its own property. The time given to the parties at the commencement of the hearing to negotiate a settlement of their disputes was in part to allow them to draft more flexible by-laws to achieve that purpose. Unfortunately, the parties did not take full advantage of that opportunity. 44.Having regard to the orders that I have made concerning the common property driveway in these proceedings and in SCS 13/50798, the parties may wish to re-consider the option of agreeing to more flexible by-laws about the common property driveway as providing a more constructive way of regulating the use of that driveway as compared to proceeding under the orders that I have made. UNAUTHORIZED WORKS 45.The applicants also raise the issue that work has been carried out within lots 1 and 2 which affects common property and which has not been consented to by the Local Authority or the second respondent. 46.The applicants seek orders for the removal of the unauthorised works carried out to lots 1 and 2 and the restoration of the common property to its original condition 47.There are two categories of unauthorised work involved. 48.First, the applicants allege, and I do not think that it is disputed at all, that the first respondents have enclosed the area in lot 1 being 4.85m by 7.85m which is shown on Strata Plan 37585 as being for "Covered Car Spaces". 49.Secondly, a mezzanine floor has been constructed within lots 1 and 2. There is, as I understand the position, no dispute at all that this work has been performed. The first respondents state that they were not responsible for all of the mezzanine work. 50.Pursuant to section 65A of the Act a lot owner may add to, alter, or erect a new structure on common property, but only if a special resolution has been passed at a general meeting of the Owners Corporation. 51.I have been referred to a number of decisions of the Tribunal in connection with this issue. 52.The first decision I have been referred to is Wildschut v Owners Corp SP 73701 [2012] NSWCTTT 241. 53.This decision stands as authority for the position that where there has been no application by a lot owner to an Owners Corporation for consent to alter common property under section 65A of the Act, orders may be made for the removal of unauthorised work and reinstatement of common property. 54.The second decision that I have been referred to is Pollack v Owners Corp SP 54298 [2013] NSWCTTT 334. That case concerned a lot owner who had carried out work affecting common property without seeking or obtaining a special resolution of the Owners Corporation as required by section 65A of the Act. 55.In the course of her reasons for decision Acting Senior Member Thode referred to the decision of Brereton J in Stolfa v Hempton [2009] NSWSC 589 where the primary judge, Brereton J, stated: "Works which alter, add to, or erect a new structure on common property may be carried out "only if" the voting requirements in section 65A are satisfied. The choice of words used evinces a legislative intention that there be only one method for authorising such work namely that provided in section 65A; the provision is 'essentially prohibitory' in that it expressly precludes any other method for authorising the carrying out of those categories of works, and thus precludes estoppels...". 56.The judgement of Brereton J in Stolfa v Hempton was affirmed on appeal. 57.At this point it is appropriate to bear in mind that the orders sought by the applicants can only be made if they have established that the enclosure of the 4.85m by 7.85m area in lot 1 which is shown on Strata Plan 37585 as being for 'Covered Car Spaces', and the mezzanine floor constructed within lots 1 and 2 have, within the meaning of section 65A of the Act, added to, altered, or erected a new structure on common property without a special resolution having been passed by the second respondent authorising such addition, alteration or erection. 58.The applicants submit that it has been conceded on behalf of the first respondents that neither the construction of the mezzanine level nor the enclosure of the area in lot 1 being 4.85m by 7.85m which is shown on the strata plan as being for "Covered Car Spaces" for use as a showroom, has received approval from the Local Authority or the second respondent. 59.There is no evidence of the first respondents ever having made an application to the second respondent for approval to add to or modify common property in order to enclose of the area in lot 1 being 4.85m by 7.85m which is shown on the strata plan as being for Covered Car Spaces for use as a showroom, or to construct a mezzanine level within lots 1 and 2, thereby adding to or altering the common property within those lots. 60.Mr Fini on behalf of the first respondents has conceded in submissions that the first respondents have not obtained the Local Authority's or the second respondent's consent to the enclosure of the area in lot 1 for covered car spaces. 61.This concession is in my view appropriate having regard to paragraph 12 of exhibit 3 which states that Mr Christou is in the process of applying for a building certificate in relation to the mezzanine level and the enclosure of the area in lot 1 for covered car spaces. 62.Further, paragraph 12 of Mr Christou's statement of 10 December 2013 and annexure I to exhibit 2 of that statement states that there has been no private certifier's certificate obtained in connection with the mezzanine work. The letter dated 21 October 2013 from the private certifier to Mr Christou which is annexure I to the statement points out a range of issues which it is suggested council will take into account. The private certifier raises issues relating to fire safety services and exit doors that need to be addressed. 63.In his final submissions on behalf of the first respondents Mr Fini stated that the applicants have not provided adequate or any evidence relating to the mezzanine. He refers to paragraph 24 of Mr Player's statutory declaration, observing that the applicants have provided no photographs or description of the mezzanine level. If there were no other evidence about the mezzanine level, Mr Fini may have a point. 64.However, as stated by Mr Fini the first respondents have put on evidence regarding the mezzanine level. 65.The first respondents' evidence is that they are still applying for a building certificate in relation to the mezzanine level. They are yet to obtain a private certifier's certificate that the works comply with building codes, with at least two significant issues still to be addressed. 66.Mr Fini referred to Annexure H to exhibit 2, Mr Christou's statement of 10 December 2013, which is described as the engineering plans used to build the mezzanine level. Annexure H shows hatched in grey the mezzanine level to be constructed in the "Mezzanine Plan". In my view this is clear evidence of what the respondents had constructed by way of a mezzanine in or about 2006 without the second respondent's approval by way of special resolution and also without the Local Authorities approval. 67.In the course of making submissions Mr Fini suggested that there was a mezzanine within lots 1 and 2 when the respondents acquired those lots. The plan which is at Annexure H to exhibit 2 shows a small pre-existing mezzanine level. Mr Player's evidence in the Tribunal was that he set up the strata scheme and there was no mezzanine in lot 1 and 2 at the inception of the strata scheme. 68.The orders sought by the applicants do not distinguish between mezzanine levels within lots 1 and 2 either before or after the first respondents acquired lots 1 and 24. 69.It is clearly established on the evidence that there has been no special resolution of the second respondent that allows the owners of lots 1 and 24 of Strata Plan 37585 to construct mezzanine levels within those lots. 70.I find that the evidence is clear the second respondent has not passed special resolutions authorising the first respondents to enclose the area in lot 1, 4.85m by 7.85m, which is shown on Strata Plan 37585 as being for "Covered Car Spaces" or to construct a mezzanine floor within lots 1 and 2. 71.The issue of whether the enclosure of the area in lot 1, 4.85m by 7.85m, which is shown on Strata Plan 37585 as being for "Covered Car Spaces" and the construction of the mezzanine floor within lots 1 and 2 have, within the meaning of section 65A of the Act, added to, altered, or erected a new structure on common property is dealt with briefly by Mr Player in paragraphs 23 and 24 of his statutory declaration. 72.He states that the work referred to in the preceding paragraph, more particularly the enclosure of the area in lot 1 designated as being for "Covered Car Spaces" was by "the physical erection of additions to the building which he now uses as a showroom", and that the works carried out by the first respondents "have essentially altered the physical configuration of the building structure". 73.The first respondents have annexed a letter dated 5 February 2014 from their consulting engineer to Exhibit 3 to establish that the mezzanine level is entirely supported from the existing workshop floor (which I find is common property) and by its own independent structure. This letter satisfies me that the first respondents have either added to or erected a new structure on common property by reason of the independent steel columns fastened to the floor of lots 1 and 2, which columns support the mezzanine level. 74.On the basis of Mr Player's evidence that the enclosure of the area in lot 1 designated as being for "Covered Car Spaces" was by the physical erection of additions to the building, and the evidence from the first respondents' consulting engineer which indicates that the mezzanine level is entirely supported from the existing workshop floor by the independent steel columns fastened to the floor of lots 1 and 2, I am satisfied that the work carried out by the first respondents has within the meaning of section 65A of the Act, added to, altered, or erected a new structure on common property. 75.I will therefore make the orders applied for by the applicants in connection with unauthorized work, namely that the first respondents must, within 21 days of the date of this order, remove the unauthorised works carried out to lots 1 and 2 being the enclosure of the car spaces at the front of the strata scheme and the construction of a mezzanine floor within lots 1 and 2 and restore the common property to its original condition. 76.I will also make the additional order requested by the applicants that that if the first respondents do not comply with the order set out in the preceding paragraph within 21 days of the date of the order, the second respondent by its employees servants and agents may in accordance with section 65 of the Act enter upon lots 1 and 2 to carry out the works to comply with the order. COSTS 77.I will make no order as to costs on the basis that I am of the view that I have no jurisdiction under the Act to do so. Moreover, the applicants do not seek an order for costs. D Goldstein Senior Member Civil and Administrative Tribunal of New South Wales 1 May 2014 I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar