Themistoclis Christou and Amalia Christou v Linday Player, Carol Player and Benuki Pty Ltd

reasons for decision APPLICATION 1.This application relates to a four lot strata scheme. The applicants own lots 1 and 2 in Strata Plan 37585 and the first respondents originally owned lots 3 and 4 in Strata Plan 37585. 2.The company Benuki Pty Ltd was added as a respondent to these proceedings at the hearing with the consent of the other parties. Benuki Pty Ltd is the trustee of the first respondents' 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 situate immediately behind lot 4. Lot 2 has the right to seven car parking spaces which 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 in commercial catering equipment and the first respondents' business is smash repairs. 5.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 which is a source of disagreement between them. The proper use of common property is another contentious issue. 6.The first respondents have brought an application in the Tribunal, SCS 12/63198, where they seek orders restraining the applicants from obstructing common property and orders requiring the applicants to remove unauthorised additions to lots 1 and 2 in Strata Plan 37585. This application is a cross application in response to the first respondents' application SCS 12/63198. 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 Owners Corporation - Strata Plan 37585 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 to these 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 12/63198 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 12/63198. 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 the common property located at the rear of the strata scheme; b)at their own expense rectify the part of the common property drive way (where the first respondents dug up concrete in order to install drainage) to its original condition; c)remove the unauthorized concrete ramp from covering the common property driveway outside the roller doors to lots 3 and 4 in Strata Plan 37585 and restore the common property to its original condition; d)at their own expense repair the steel gate that was located at the rear of the common property driveway that the respondents removed without approval from the Owners Corporation - Strata Plan 37585; and e)remove the unauthorised works carried out on the common property adjacent to the car spaces of lots 3 and 4 being the extension of the building from lot 4 onto the common property and the ramp adjacent to lot 3 on the common property and restore the common property to its original condition. 13.The applicants seek an additional order to the effect that if the first respondents do not comply with the order set out in paragraphs 12 (e) within 21 days, the second respondent by its employees servants and agents may in accordance with section 63(5) of the Act enter upon lots 3 and 4 to carry out the works to comply with the order. 14.Section 63(5) of the Act does not authorise the second respondent to enter upon lot property. Section 63 of the Act deals with the circumstances in which an Owners Corporation may carry out work on lot property and recover the costs. 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 15 November 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 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. RESPONDENT'S EVIDENCE 20.The respondents' 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. OBSTRUCTION OF COMMON PROPERTY 21.The first issue to be considered relates to the applicants' allegation that the first respondents have obstructed their use of common property. As stated, above the applicants seek an order restraining the respondents from obstructing the common property of the strata scheme, including but not limited to the driveway and the common property located at the rear of the strata scheme. 22.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. 23.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." 24.The applicants deal with this issue in paragraphs 16 and 17 of the written background in support of their application. 25.The applicant Mr Christou also deals with this subject in paragraphs 5 - 7 of his 10 December 2013 statement and also in paragraphs 14 - 26 of his 19 March 2013 statement. 26.The applicants' evidence on the issue of the obstruction of the common property driveway is that the first respondents have in the past used the common property driveway to park vehicles for the purpose of working on them as part of their smash repair business. In addition, it is alleged that the first respondents' customers and suppliers often park on the common property driveway. 27.On 19 March 2013 Mr Christou's evidence was that the first respondents continued to park and stand vehicles on the common property driveway. On 10 December 2013 Mr Christou's evidence was that the first respondents continued to obstruct the common property driveway. 28.The first respondents' evidence on the issue of the obstruction of the common property driveway is that the applicants are the ones that obstruct and block the use of the common property driveway. I have dealt with their allegations in SCS 12/63198. However the first respondents' evidence regarding their use of the common property driveway is what I might describe as, 'careful'. It is stated that they use the common property driveway for moving vehicles in and out of their premises for business purposes. Other than that there is no description of their use of the driveway. 29.In any event the first respondents' have not served a statement or statutory declaration rebutting Mr Christou's evidence as briefly referred to above. 30.Given the evidence of the first respondent's use and obstruction of the common property driveway in these proceedings, I am satisfied that the first respondents have in the past obstructed the common property driveway in breach of by-laws 2 and 3 as referred to above. I make no finding against the first respondent under section 117 (b) and (c) of the Act as the applicants have not tendered evidence that goes to whether the first respondents' use of the common property driveway unreasonably interferes with their use of the common property driveway or their lots. 31.Given the findings that I have made, I will make an order that the first respondents must refrain from obstructing the common property driveway in breach of by-laws 2 and 3. 32.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. 33.Having regard to the orders that I have made concerning the common property driveway in these proceedings and in SCS 12/63198, 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. DAMAGE TO COMMON PROPERTY 34.The applicants allege that the first respondents have caused damage to the common property in two respects. First, they allege that the first respondents damaged the common property driveway when they cut a trench into it as part of providing drainage services to lots 3 and 4. Secondly, they allege that the first respondents removed a steel gate constructed at the rear of the common property driveway. 35.The evidence in connection with this aspect of the applicants' case is in Mr Christou's 19 March 2013 statement at paragraph 13 (h). Here Mr Christou describes the work allegedly carried out by the first respondents when they cut a trench into the common property driveway as part of providing drainage services to lots 3 and 4. The annexures to his statement show where this work was carried out and provides a photograph of the work and area referred to. 36.The applicants' complaint is that the make good work performed by the first respondent has settled, and thereby impedes the applicants' use of the common property driveway because that part of the driveway made good by the first respondents is now no longer level with the driveway. 37.The first respondents do not deny that a trench was cut into the common property driveway for the purposes of providing drainage services to their lots. Nor is it disputed that the first respondent made good the driveway after carrying out the work. However, the first respondents in their written submissions dated 22 November 2013 state that the work in question was carried out in 1987 before the registration of strata pan 37585 on 18 October 1990. The first respondents seek to establish these facts by reference to a letter dated 16 October 2013 from a Robert Anthony Pucker which is attached to their written submissions. This letter states that the work in question was carried out in 1987 and that part of the work was to cut a trench in the driveway in order to lay pipe to the sewer, with the trench being compacted and then sealed. 38.I accept the letter dated 16 October 2013 from Mr Pucker as being reliable. The applicants were on notice of it and did not question its content or validity. I am satisfied that the first respondents have explained the factual background to the trench cut in the common property driveway that the applicants complain of and the fact that it was carried out at a time before the creation of the strata scheme. 39.This leads me to conclude that the applicants' complaints regarding the trench cut into the common property driveway are a matter of maintenance for the second respondent, rather than the subject of an order to be made against the first respondent. 40.At paragraph 13(n) of Mr Christou's 19 March 2013 statement he describes the facts relating to the removal of the steel gate constructed at the rear of the common property driveway. At annexure F to his statement, Mr Christou provides photographs of the gate at the rear of the common property driveway which shows one half of the gate missing. 41.The first respondents have not served a statement or statutory declaration rebutting Mr Christou's evidence as briefly referred to above in connection with the removal of the steel gate constructed at the rear of the common property driveway. The first respondents' submissions of 22 November 2013 do not address this issue. 42.Based on the evidence of Mr Christou on this issue which is unchallenged, I find that the first respondents were responsible for removing one half of the common property steel gate constructed at the rear of the common property driveway. I find that there was no consent from the second respondent to justify this action. I will therefore make an order in the terms sought by the applicants in connection with this issue. UNAUTHORISED WORKS 43.The order sought by the applicants in connection with unauthorised work was raised by the applicants in a letter sent to the Tribunal by their solicitors dated 3 February 2014. There are two aspects of unauthorised work referred to. First, it is alleged that the first respondents have built a ramp on the common property driveway adjacent to lot 3. Secondly, the applicants allege that the first respondents have extended lot 4 over the car parking spaces at the rear of lot 4, without the consent of the second respondent and in so doing have encroached onto common property. 44.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. 45.The evidence in connection with unauthorised concrete ramps on common property is in Mr Christou's 19 March 2013 statement. 46.In paragraph 13(i) of his statement, Mr Christou describes the actions of the first respondents in laying concrete ramps from the roller doors of the first defendants' premises onto the common property driveway and the effect on the use of the common property driveway. He also provides photographs of the concrete ramps and a marked up copy of the strata plan indicating the location of the ramps. Mr Christou states that this work was carried out without the second respondent's approval. 47.The first respondents have not filed a statement or a statutory declaration which provides evidence rebutting the applicants' evidence about the work carried out by them in constructing the concrete ramps on the common property driveway. 48.There is no evidence of the second respondent having consented to this work being carried out or to passing a special resolution authorising the encroachment onto common property. 49.On the evidence before the Tribunal I find that in constructing the concrete ramps from the roller doors of lot 3 onto the common property driveway, the first respondents have added to or altered the common property driveway, without a special resolution having been passed authorising that work. 50.In paragraphs 13(a) - (d) of his statement, Mr Christou describes the actions of the first respondents in extending lot 4 over 5 of the car parking spaces allocated to lots 3 and 4. A marked up copy of the strata plan indicating the extension has been annexed to Mr Christou's statement. This marked up copy indicates that the extension has been constructed in part on common property. In addition, the last photograph at annexure E to Mr Christou's statement gives an indication of the substantial nature of the structure that has been erected by the first respondents. 51.Mr Christou states that this extension work has not received the consent of the second respondent or the Local Authority. 52.Mr Player in his statutory declaration has admitted to having this work carried out. He has attached evidence that the extension work received the consent of the Wollongong City Council on 16 October 1992. 53.Mr Christou also describes the effect on the use of the common property driveway that this extension has had. Briefly, Mr Christou states that the structure built by the first respondents reduces the width of the common property driveway causing difficulties for vehicles using that part of the driveway. Mr Christou also makes the point that the structure reduces the amount of parking available to the first respondents and that has caused the first respondents and their customers to park on common property. 54.The first respondents have admitted to extending lot 4 over 5 of the car parking spaces allocated to lots 3 and 4. There is no evidence of the second respondent having consented to this work being carried out or passing a special resolution authorising the addition to or alteration of the common property caused by the structure encroaching onto common property. 55.However Mr Player states that the applicants have consented to the extension of lot 4 over 5 of the car parking spaces allocated to lots 3 and 4. The consent document attached to Mr Player's statutory declaration does not contain the level of detail necessary to satisfy me that the applicants were in fact agreeing to the extension of lot 4 over 5 of the car parking spaces allocated to lots 3 and 4. 56.Despite the parties' actions in attempting to reach an agreement about this work, the fact is that the second respondent has not passed a special resolution to authorise the first respondents to build part of the structure referred to on the common property as part of this work. 57.I find that the first respondents have added to, altered or erected a new structure on common property when they constructed the extension of lot 4 over 5 of the car parking spaces referred to. RELEVANT LAW 58.I have been referred to a number of decisions of the Tribunal in connection with the issue of unauthorised works. 59.The first decision I have been referred to is Wildschut v Owners Corp SP 73701 [2012] NSWCTTT 241. 60.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. 61.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. 62.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...". 63.The judgement of Brereton J in Stolfa v Hempton was affirmed on appeal. 64.I have made findings that the construction of concrete ramps from lot 3 onto the common property driveway has altered or added to the common property and that the extension of lot 4 over 5 of the car parking spaces allocated to lots 3 and 4 by the construction of a structure has added to or altered or erected a new structure on common property. 65.I have also found that the second respondent has not passed special resolutions to permit the additions to or alterations of common property as referred to. 66.Having regard to the authorities referred to above the appropriate orders to make are that the first respondents must at their own cost remove the concrete ramps constructed from the roller doors of lot 3 onto the common property driveway and reinstate the common property to its former condition. 67.As regards the extension of lot 4, in my view the appropriate order to be made is that the first respondents must at their own expense remove that part of the alteration of lot 4 which adds to, alters or has caused a new structure to be erected on common property and reinstate the common property to its former condition. COSTS 68.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