Motor Group Australia Pty Ltd v Owners Corporation Strata Plan 64622 [2004] NSWSC 633

New South Wales Supreme Court

CITATION : Motor Group Australia Pty Ltd v Owners Corporation Strata Plan 64622 [2004] NSWSC 633 HEARING DATE(S) : 7, 8, 9, 10 June 2004 JUDGMENT DATE : 19 August 2004

JURISDICTION: Equity Division Commercial List JUDGMENT OF : Bergin J DECISION : See para [104]

CATCHWORDS : [CONTRACT] - Whether the parties agreed that the plaintiff's use of the common property in a high rise apartment block was to be without fee - Whether the signing of and support for the plaintiff's development application constituted a contract between the parties that no fee would be charged for the use of common property. - [MISLEADING & DECEPTIVE CONDUCT] - Whether a letter from the Executive Committee of the defendant contained a representation that no fee would be charged to the plaintiff for the use of the common property - Whether the plaintiff relied upon the alleged representation when it entered into a lease over Retail Space, undertook renovations and opened a retail showroom - Whether the defendant's silence in relation to fees for the use of common property constituted a representation that there would be no fees. - [UNCONSCIONABLE CONDUCT / EQUITABLE ESTOPPEL] - Whether the defendant, in seeking to impose a fee upon the plaintiff for the use of common property, engaged in unconscionable conduct within the meaning of section 51AA of the Trade Practices Act 1974 (Cth) - Whether there was consent to the use of common property and the extent of any consent - Whether there was an expectation in the plaintiff that it would be able to use common property without fee - Whether the defendant is estopped from denying agreement to use the common property without fee. - [TORT - TRESPASS] - Whether the plaintiff's signage on the common property and use of the concrete walls on common property amount to trespass - Whether loss of a commercial fee for use of the common property was the natural and probable consequence of the trespass - Whether injunction should be granted. Fair Trading Act 1987 (NSW) LEGISLATION CITED : Strata Scheme Management Act 1996 (NSW) Trade Practices Act 1974 (Cth) Austotel Pty Ltd & Anor v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582 Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd & Ors (2003) 214 CLR 51 Bowyer v Cook (1847) 4 CB 236 Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 Commonwealth v Verwayen (1990) 170 CLR 394 Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 Holmes v Wilson & Ors (1839) 10 Ad & E 503 CASES CITED : Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd [1957] 2 QB 334 Letang v Cooper [1965] 1 QB 232 Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 Re Caughey, ex parte Ford (1876) 1 Ch D 521 Taplin v Florence (1851) 138 ER 294 TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 The Owners - Strata Plan No. 43551 v Walter Construction Group Ltd [2003] NSWSC 1177 Waltons Stores (Interstate) Ltd v Maher & Anor (1988) 164 CLR 387 Winter Garden Theatre (London) Ltd v Millenium Productions Ltd [1948] AC 173 Yovich v Collyer [1972] WAR 143 PARTIES : Motor Group Australia Pty Ltd (Plaintiff) The Owners Strata Plan 64622 (First Defendant) FILE NUMBER(S) : SC 50036 of 2003 COUNSEL : B Coles QC, GA Sirtes (Plaintiff) DJ Hammerschlag SC, J Miller (Defendant) SOLICITORS : Landerer & Company (Plaintiff) Dibbs Barker Gosling (Defendant)