REGIS TOWERS REAL ESTATE PTY LTD v THE OWNERS OF STRATA PLAN 56443 [2002] NSWCA 40

New South Wales Court of Appeal

CITATION : REGIS TOWERS REAL ESTATE PTY LTD v THE OWNERS OF STRATA PLAN 56443 [2002] NSWCA 40 FILE NUMBER(S) : CA 40192/01 HEARING DATE(S) : 21 February 2002 JUDGMENT DATE : 21 February 2002

PARTIES : Regis Towers Real Estate Pty Ltd - Appellant The Owners of Strata Plan 56443 - Respondent JUDGMENT OF : Sheller JA at 1; Stein JA at 6; Ipp AJA at 7

LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT 1611/01; 1612/01 FILE NUMBER(S) : LOWER COURT Santow J JUDICIAL OFFICER :

COUNSEL : M D Broun QC/C Stomo - Appellant J B Conomy - Respondent SOLICITORS : Broun Abrahams - Appellant Blessington Judd - Respondent CATCHWORDS : CONVEYANCING - injunction - declaration - costs - utility of appeal - appeal dismissed DECISION : Appeal dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40192/01 ED 1611/01 ED 1612/01

SHELLER JA STEIN JA IPP AJA

21 February 2002 REGIS TOWERS REAL ESTATE PTY LTD v THE OWNERS STRATA PLAN 56443 Judgment 1 SHELLER JA: The appeal listed before the Court this morning is from a decision of Justice Santow which was given on 2 March 2001. The matter came before the Equity Division in the form of two summonses. The summonses were taken out by the appellant against three defendants. In both summonses, under the heading "Final Relief," a declaration, an order in the nature of an injunction and costs were sought. 2 In the notices of appeal, it is said that no relief is now sought against the first and second defendants in each of the summonses, and that they have no interest in the appeal. The orders sought in the notices of appeal are that a question which was put to Justice Santow, and which is recorded in his reasons for judgment, should be answered "yes." His Honour had answered the question in the negative. 3 It is now conceded on behalf of the appellant in each appeal that neither the declaration, which I observe was in a form that in the circumstances of this case the Court could never have made, nor the making of the order in the nature of an injunction would serve any purpose. Furthermore, it is conceded that the question which was put to his Honour and which his Honour answered, is not an appropriate question for the Court to answer. Also the written submissions filed on behalf of the respondent to this appeal proposed that we consider a different question. 4 All this demonstrates that this appeal has no utility whatever and should not be before the Court. Put another way, the appeal is incompetent. That being so, the only order that should be made, apart from the question of costs, is that the appeal be dismissed. Inevitably, it seems to me, the costs follow the event of the dismissal of the appeal. 5 There was some debate about the terms of an agreement which were relied upon at the hearing before Justice Santow. Given my opinion as to the utility of the appeal, I do not think the Court should pass upon the rights or wrongs of the construction of those provisions in the contract which were discussed. Accordingly, I would propose that the appeal be dismissed with costs. 6 STEIN JA: I agree. 7 IPP AJA: I agree. 8 SHELLER JA: The order of the Court will therefore be as I have announced it. **********