Eventang Development (Pyrmont) Pty Limited v The Owners Strata Plan 51573 & anor. [2001] NSWSC 452

New South Wales Supreme Court

CITATION : Eventang Development (Pyrmont) Pty Limited v The Owners Strata Plan 51573 & anor. [2001] NSWSC 452 FILE NUMBER(S) : SC 13026/2000 HEARING DATE(S) : 28 May 2001 JUDGMENT DATE : 1 June 2001

Eventang Development (Pyrmont) Pty Limited PARTIES : The Owners Strata Plan 51573 Strata Schemes Board of NSW JUDGMENT OF : Sully J at 1

COUNSEL : M. A. Bradford - Plaintiff P. Koroknay - Defendant Alex Ilkin & Co. - Plaintiff SOLICITORS : David Le Page - lst Defendant I. V. Knight - 2nd Defendant Strata Schemes Management Act 1996 (NSW) Justices Act 1902 (NSW) LEGISLATION CITED : Strata Titles Act 1973 Strata Schemes Management Regulation 1997 Interpretation Act 1987 (NSW) CASES CITED : Liverpool Borough Bank v Turner (1860) 45 ER 715 at 718 Day Ford Pty Ltd v Sciacca (1990) 2 Qd. R 209 at 216, 217 DECISION : Appeal dismissed with costs

SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SULLY J

1 June 2001

13026/2000 - Eventang Development (Pyrmont) Pty Limited v The Owners Strata Plan 51573 & anor.

JUDGMENT

1 HIS HONOUR: By a summons filed on 3 November 2000 Eventang Development (Pyrmont) Pty Limited, ("Eventang"), appeals against an order made in favour of the Owners, Strata Plan 51673, ("the Strata Owners"), by the Strata Schemes Board of New South Wales, ("the Board"). Such an appeal lies by virtue of s 200 of the Strata Schemes Management Act 1996 (NSW), ("the Strata Act"). The appeal lies, relevantly, only upon a question of law; and is governed, generally speaking, by the provisions of Part 5 of the Justices Act 1902 (NSW) as applicable to "a determination that a Justice ………………… made ………………in the exercise of summary jurisdiction on an information or complaint". 2 The particular relief claimed in the summons is: "1. An order pursuant to Sec 109(a) of the Justices Act quashing the order of the Second Defendant to dismiss the appeal of the Second Defendant. 2. An order pursuant to Sec 154(1)(a) of the Strata Schemes Management Act, 1996 ("the SSM Act") declaring that the resolutions passed at the Annual General Meeting of the First Defendant held on 19th August 1999 ("the Meeting") are to be treated as a nullity. 3. Alternatively to the relief sought in 2 above, an order that the matter be remitted to the Second Defendant to be dealt with according to law. 4. (a) A declaration that the Second Defendant erred in law in not finding that the principles of waiver and/or estoppel were to be applied so as to preclude the First Defendant from insisting on strict compliance with the requirements of Sec 118 of the SSM Act. (b) A declaration that the Second Defendant erred in law in not finding that the resolutions passed at the Meeting were to be treated as a nullity pursuant to Sec 154(1)(a) of the SSM Act. (c) A declaration that the Second Defendant erred in law in not exercising the discretion to treat those resolutions as a nullity pursuant to Sec 154(1)(a) of the SSM Act. 5. Costs" 3 Both the Strata Owners and the Board are joined as defendants to the summons. By a notice filed on 1 December 2000 the Board entered a submitting appearance, submitting to the orders of this Court save as to costs. The Strata Owners appeared by counsel at the hearing before this Court and contested Eventang's entitlement to any of the relief claimed by it in the summons. 4 The following facts are either admitted, or are established to my satisfaction on the probabilities: