Sultan v SP4382: acquisition of lot property
Sultan v The Owners - Strata Plan No.4382 [2022] NSWCATCD 96
In short
The Tribunal’s power under s 130(2) does not include an order for an owners corporation to acquire lot property.
Lot property is not “personal property” under the SSMA, but properly “real property”.
Valuation of “personal property” is required to obtain relief under s 130(2).
Background
The lot owner applicants’ garage included two internal lot property walls that had the effect of creating an enclosed 'pump room’, which was utilised by the owners corporation respondent for water and electrical services.
A by-law was purportedly made, and purportedly amended, that sought to provide some financial relief to the applicants for the loss of use of a portion of their garage.
The applicants sought an order that the respondent acquire the pump room as common property and pay for that acquisition.
The law
Section 130(2) of the Strata Schemes Management Act 2015 provides that the Tribunal may, on application by an owner of a lot, order an owners corporation to acquire personal property if the Tribunal considers that the owners corporation has unreasonably refused to acquire the personal property.
Decision
In respect of order 1, for an order to acquire a portion of the lot as common property, the Tribunal dismissed that order on the basis that the reference in section 130(2) to “personal property” does not include “real property” forming part of a lot. Additionally, there was no evidence before the Tribunal as to that property’s value, even if such a power were to be exercised.
Order 2 sought a monetary payment allegedly arising under a by-law, owed by the respondent to the applicant. The Tribunal characterised it as a complaint under section 232(1)(e), being the failure to exercise a function under the by-laws of a scheme.
The Tribunal cited The Owners of Strata Plan No 3397 v Tate [2007] NSWCA 207 on the principles informing the construction and interpretation of by-laws.
Dispute arose as to the wording and/or meaning of a relevant by-law (which was seemingly not in evidence) between the use of “and” or “or”, or whether “and” was to be read as “or”.
In considering the by-law wording, concerning “reimburse ‘and/or’ give credit to the owners”, was read to require the applicants to have first paid the levy to be entitled to a reimbursement.
The applicants had partial success in relation to their monetary claims arising under the by-law and obtained an order of $1,660 to be paid by the respondent.
Lastly, the Tribunal found that it does not have power to require the respondent to provide a written apology.