Reasonable Expectation
57 The starting point here is that by-laws are made to facilitate the administration and harmony of the strata scheme.
58 Senior Tribunal Member Balding was asked to consider whether SP300's refusal to approve a new by-law granting the Reens exclusive use of garage No 3 was unreasonable, as Adjudicator Taylor had concluded. That determination required a consideration of the interests of all owners in the use and enjoyment of their lots and common property. It also required a consideration of the rights and reasonable expectations of the Reens, who would derive a benefit under the by-law.
59 In finding SP300's refusal of the proposed by-law reasonable, the Reens submitted that Senior Tribunal Member Balding failed to take into account their reasonable expectation that a new by-law would be passed giving them exclusive use of garage No 3.
60 The Reens had, for a number of years while by-law 28 was in place, the benefit of the exclusive use of garage No 3 for a nominal sum. Further, Mr Reen gave evidence before Senior Tribunal Member Balding, that in purchasing lot No 2 he was led to believe by the vendors, that he would gain exclusive access to garage No 3 "in perpetuity".
61 However as SP300 submitted, the representations made to the Reens about the rights to the garage were made by the vendor of the lot, not SP300. Nor should the by-law have been taken to grant the Reens rights "in perpetuity". Registration of a by-law merely serves to register the current state of the by-laws for a given strata scheme. They are always subject to change by the Owners Corporation, by an Adjudicator, the Tribunal or the Supreme Court.
62 Senior Member Balding stated:
"The circumstances in which the lot was purchased by the Reens does not give the Reens any greater right to exclusive use of the common property garage than any of the other lot owners. Nor does it create a reasonable expectation that they should obtain a benefit in having exclusive use of part of the common property over any of the other lot owners having an interest in making use of the common property."
63 The Reens also submitted that in light of the comments of Adjudicators Phillips and Ross (discussed previously), they had a reasonable expectation that the proposed by-law would be approved.
64 SP300 submitted the proposed by-law, similar to repealed by-law 28, had no time limit. They continued that if the proposed by-law went ahead, the other lot owners would be hindered in their desire to look at creating enough parking spaces for all lot owners.
65 SP300 also submitted also that the proposed by-law, similar to repealed by-law 28, did not go far enough in addressing the payments, which should be made to the owners corporation.
66 It was drawn to my attention by the solicitor acting for the Reens that the by-law, Adjudicator Phillips found not to be an appropriate mechanism, is the same one that the Reens relied upon in these current proceedings. In any event, the obiter comments made by an earlier adjudicator do not, in my view, mean that the Reens are entitled to have a reasonable expectation that the comments will be converted into orders when the matter is next before the Tribunal.