Correcting errors on the plan of subdivision to change the boundary between two private lots

ASA Nominees Pty Ltd v Owners Corporation PS 513436B and Adamopoulos [2016] VSC 562 arose from a surveyors error which occurred when lots in the plan of subdivision were re-subdivided.  An amended plan was registered which showed the boundary between two lots as located 3 metres to the west of the wall that was intended to form the boundary. 

In relation to the specific owners corporation issues, the case considered the operation of s32 of the Subdivision Act 1988, the owners corporation’s power to alter the plan of subdivision, and the Tribunal’s power to hear disputes relating to alterations to the plan of subdivision.

The court held that an owners corporation can amend the boundary between two lots by unanimous resolution under s32 of the Subdivision Act 1988 even if the change results in the transfer of part of the land from one lot owner to another.  This means that s32 is not limited to alterations relating to boundaries with common property, but applies to “land affected by an owners corporation” which includes private lots.  The Tribunal also has the power to hear and determine applications relating to the alteration of boundaries between lots made under s34D of the Subdivision Act 1988.

The case also considered the question of rectification of the contract of sale and transfer of land to correct the mistake.

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