GILLETT v HALWOOD CORPORATION LIMITED [1998] NSWCA 281

GILLETT v HALWOOD CORPORATION LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA, HANDLEY JA and POWELL JA

1, 2 May 1996, 24 March, 27-29 August 1997, 26 March 1998

[1998] NSWCA 281

STRATA TITLES ACT (STA) — DIVISION 3 PT IV "MANAGING AGENTS" — APPOINTMENT OF MANAGING AGENTS UNDER S 78 — AUCTIONEERS AND AGENTS ACT (THE AGENTS ACT) — claims by the appellant, a resident at a Retirement Village, that parts of the contractual arrangements related to her purchase of a unit, and residence in the Village, namely Management and Service Agreements, were void and/or illegal when read with the STA — relationship between s 78 STA and Schedule 2, by-law 2 — whether by-law 2 authorised the council of the Body Corporate to make the Management Agreement — if not, questions raised about the resulting effect on the validity of other Agreements integrated with the Management Agreement — whether the Body Corporate became a party to the Management Agreement — whether the powers of the council of the Body Corporate, pursuant to by-law 2, equivalent to the powers of the Body Corporate, under s 78, to appoint managing agents.

Strata Titles Act 1985 ; ss 5, 57, 58(1)-(3), 68(1), 75 Division 3 Pt IV: ss 78(1), 78(4), 783(1AA) Schedule 1: By-Laws 1-27, 30-38

Auctioneers and Agents Act (1985) ; ss 3, SOL Radaich v Smith (1959) 101 CLR 209

Australian Breeders Cooperative Society Limited v Jones & Ors (1997) 150 ALR Kok Hoon v Leong Cheng Kweng Mines Limited [1964] AC 993 Pratten v Warringah Shire Council (1969) 90 WN Pt 1) 134

Wongala Holdings Pty Limited v Mulingbar Pty Limited (1994) 6 BPR 13527 at 13534-5

On appeal:

1. The appellant submitted that Rolfe J erred in finding the Management Agreement was not void or illegal.

Held:

1. The provisions of the Management Agreement required and empowered a company (Management) to perform functions of the Body Corporate;