Wilson & Anor v Meudon P/L & Anor [2005] NSWCA 448

New South Wales Court of Appeal

CITATION: Wilson & Anor v Meudon P/L & Anor [2005] NSWCA 448

HEARING DATE(S): 7/9/05 – 8/9/05

JUDGMENT DATE: 15 December 2005

JUDGMENT OF: Handley JA at 1; Hodgson JA at 10; Bryson JA at 16

DECISION: Appeal allowed with costs and relief granted to appellants: see orders at [92].

CATCHWORDS: CORPORATIONS – home unit company title – It was held that provisions of articles delineating an area of the roof adjacent to the Penthouse as "Roof Garden for Penthouse" were part of the rights annexed by the Articles to the shares relating to the Home Unit immediately under the Penthouse, and were Class Rights which could not be altered except according to Modification of Rights Article, over which holders of those shares had control. The holders of those shares were entitled to restrain the Company and the holder of the Penthouse shares from acts and decisions which would enable extension of the Penthouse over part of the Roof Garden – Consideration of operation of Articles in Home Unit Company, Class Rights, Modification of Rights Article, whether holder has leasehold or contractual licence, entitlement to quiet enjoyment. Reid House Pty Ltd v Beneke (1986) 5 ACLC 451 disapproved

Corporations Act 2001 (Cth) ss.136(2), 140, 232, 246B(1) & C(5), 258B(1) Companies Act 1981 (Cth) s.125(3) Corporations Law s.197 Companies (NSW) Code ss.123(13), (14) LEGISLATION CITED: Companies Act 1961 (NSW) ss.31(1), 144(1) Companies Act 1936 ss.94, 97 Conveyancing Act 1919 (NSW) Schedule 4 Para 21 Companies Act 1985 (UK) s.125 Interpretation Act 1987 (NSW) s.21(b)