Tuesday, May 24, 2022

Strata Parking | the chain incident ends in the Supreme Court

Strata Parking incident lands in the supreme court

So you love parking in Potts Point so much that you make a ‘small’ investment of $264,000* for a strata parking car space. It’s not that glamorous, it is a single car space after all. You don’t even own an apartment in the building but having that piece of concrete is living the dream. Getting in and out is such a joy. It has a huge pillar on the boundary and is relatively narrow, but it is a dream worth defending.

Now imagine the owners corporation placing a physical barrier on the boundary of your ‘island resort’ (car space – Lot 89) and your ‘small’ investment is now rendered virtually unusable.

What do you do?

Well a recent case in the Supreme Court detailed the ongoing dispute with the owners corporation, the defendant, of 45 Macleay Street in Potts Point.

Strata Parking incident lands in the supreme court

Was it the owners corporation in the car space with the chain?

The chain incident, as the court called it, started shortly after the strata titled car space was purchased in 2015. Following an attempt by the owners corporation (OC) to create three new car spaces, the OC installed a chain on the boundary of the car space lot, that’s the island resort if you’re keeping track.

The installed chain made the already tight squeeze near impossible. It was already necessary to have some limited clear passage over an adjacent area of the common property to successfully navigate a standard size car into position.

Was it the owners corporation with the chain, the wall or the garden?

Our island dreamer should be enjoying the fruits of his labour but the owners corporation had new ideas for the adjacent common property. A special resolution was passed to erect a wall to the southern boundary of the car space with a gap of 575mm. This proposal posed a new access dilemma.

Four months later the owners corporation passed another special resolution to install a garden area. This time allowing a 300mm gap from the lot boundary.

So in a period of 18 months, the owners corporation had approved additional parking, installed ‘the chain incident’, proposed a wall close to the boundary and further proposed a garden area even closer to the lot boundary.

Confused yet? Now the owners corporation may have had good intentions but the initial chain incident was enough for the owner to pursue a resolution at the Supreme Court.

The Strata Parking Case

The owner finally had their day in court on April 11th, 2018.

The owners corporation submitted that there was no impending threat to do anything and that there was no controversy to be quelled. The chain was no longer an issue. The building proposal was at an early stage and the garden proposal was without any specific detail.

Justice Kunc was satisfied however that there was a sufficiently well-defined or “ripe” controversy to be quelled. He summarised that he would have had some sympathy for the defendant if matters were confined to the building proposal.

When the chain incident, the building proposal and the garden proposal are taken together, it is clear that the parties are in dispute about the extent to which the owners corporation can make changes to the common property which will affect the plaintiff’s capacity to use Lot 89 for its intended purpose as a car space.

The Court delivered its terms of declaration (the decision) in these proceedings on April 12th, 2018.

Justice Kunc stated, that it is appropriate to protect Lot 89’s entitlement to use the common property to be able to park a car. He made a declaration that a strip of 870mm, that intrudes into the common area, be maintained for strata parking access. He chose this conclusion for simplicity and certainty. Therefore, avoiding any potential future dispute. The terms also included that the owners corporation pay the owner’s costs of the proceedings.

The court gave both parties the opportunity to consider the appropriate form of the orders to give effect to the court’s decision.

The owner won! (Or did he?)

After nearly three years of strata parking conflict we have a decision. All that was required was some last-minute housekeeping and the court would sign the orders. What could go wrong?

Well the owners corporation submitted that the owner should pay all costs as the owner could, and should, have sought ‘relief’ at the NSW Civil and Administrative Tribunal (NCAT) and not from the Supreme Court. (253 (2) of the Strata Schemes Management Act 2015**)

A quick read of the ACT, if you’re so inclined, states that the plaintiff, the owner, must pay the defendant’s costs if the taking of the proceedings was not justified (in the Supreme Court) because the ACT makes adequate provision for the enforcement of rights or remedies. (at NCAT)

Justice Kunc concluded, ‘Although I was satisfied that the plaintiff (the owner) was entitled to approach this Court for a declaration, in my view this was nevertheless a dispute which as a practical matter could and should have been dealt with in NCAT … Approaching this Court for a declaration as a basis for engaging the jurisdiction of this Court, notwithstanding that relief which would bring about the same result is available from NCAT, is a practice which should be discouraged. Section 253(2) is a statutory means of discouraging such conduct’.

Strata Parking Conclusion: The owner wins and pays all costs

The orders of the court were;

  1. The Court declares that the defendant is not entitled to restrict or impede the plaintiff’s access to and use of its Lot 89 in Strata Plan 934 via the common property of Strata Plan 934 (the “Common Property”) by developing or impeding access to that strip of the Common Property which commences at the southern boundary of Lot 89 and extends 870mm into the Common Property and runs the entire length of the southern boundary of Lot 89 with the Common Property.
  2. Pursuant to s 253(2) of the Strata Schemes Management Act 2015 (NSW), the plaintiff is to pay the defendant’s costs of the proceedings.

The moral of this story

While the owner has achieved his desired but expensive relief on strata parking, this case highlights the need to follow the correct strata dispute procedure.

Talk about it with the owners corporation first, consider free mediation from Fair Trading and then commence action at NCAT.

Do not approach the Supreme Court with a matter that can be resolved at the NSW Civil and Administrative Tribunal. The party approaching the Court can expect to pay the other party’s costs of the case irrespective of the outcome.

Is this now Australia’s most expensive strata parking car space?

*(As a side note, a monthly car space at the Kings Cross carpark will set you back $242 per month, $2,904 per year or $29,040 for every ten years).

**253 (2) In any proceedings to enforce any such right or remedy, the court in which the proceedings are taken must order the plaintiff to pay the defendant’s costs if the court is of the opinion that, having regard to the subject-matter of the proceedings, the taking of the proceedings was not justified because this Act or Part 4 of the Community LandManagement Act 1989makes adequate provision for the enforcement of those rights or remedies.

Read related: Parking in Strata

Strataville Editorial
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