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The Owners – Strata Plan No. 73943 v Gazebo Penthouse Pty Limited [2014] NSWSC 1536 (14 November 2014)

This case involved a dispute between an owner of a penthouse apartment and an owners corporation in relation to the construction of an exclusive use by-law. One of the issues was whether the exclusive use by-law which provided exclusive use and enjoyment of an elevator exclusively serviced a particular apartment.

The plaintiffs argued that lift 3, which is only capable of servicing level 18 should be available for use by the occupants of levels 1 through 17 because it is not a service that exclusively services lot 61.  The defendant argued that lift 3 is a service that exclusively services its individual lot because the defendant (along with the occupants of the lots on levels 16 and 17) has had the exclusive use of that lift since the inception of the strata plan.

The NSW Supreme Court found that the exclusive use by-law made no reference to lift 3 and that the by-laws made no specific reference to the question of whether the occupants of levels 16, 17 and 18 were to enjoy the exclusive use of lift 3.  However, the Court found that the by-laws did make provision in section 43.1 that the owner of each lot had the “right to the exclusive use and enjoyment of any service that exclusively services its individual lot that is located in and forms part of the common property.”

Although the NSW Supreme Court allowed the appeal from the NSW Civil and Administrative Tribunal and set aside the judgement and orders of the NCAT, the Court remitted the matter to NCAT to be dealt with according to law.

The decision serves as a timely reminder that by-laws should be reviewed regularly and updated as required to ensure that they meet the owners corporation’s objectives.

Please note that the information contained in this article is not legal advice and should not be relied upon as such. You should obtain legal advice before you take any action or otherwise rely upon the contents of this article.