White v Betalli & Anor [2007] NSWCA 243

Reported Decision: (2007) NSW Titles Cases 80-120

New South Wales Court of Appeal

CITATION: White v Betalli & Anor [2007] NSWCA 243

HEARING DATE(S): 26 April 2007

JUDGMENT DATE: 14 September 2007

JUDGMENT OF: Santow JA at 1; McColl JA at 77; Campbell JA at 195

DECISION: 1. Leave to appeal granted; 2. Appeal dismissed; 3. Appellant to pay the respondent's costs.

CATCHWORDS: REAL PROPERTY – Strata and related titles and occupancy – validity of special by-law created pursuant to s 43 Strata Schemes Management Act 1996 - special by-laws created right in favour of one lot proprietor to use or occupy part of lot owned by another to store small watercraft - STATUTES - Statutory Construction - expressum facit cessare tacitum – whether only available source of power to create right purportedly created by special by-law was s 88B, Conveyancing Act 1919 - STRATA TITLES AND RELATED TITLES AND OCCUPANCY – Strata Schemes Management Act 1996 s 43 – whether special by-law "appropriate to the type of strata scheme concerned" or inconsistent with Management Act or any other Act or law - REAL PROPERTY – land titles – registration – whether interest sufficiently recorded on the register if folio states the registration of the dealing creating it and identifies the interest.

Commonwealth Conciliation & Arbitration Act 1904 Conveyancing (Strata Titles) Act 1961 Conveyancing Act 1919 Interpretation Act 1987 Real Property Act 1900 Strata Schemes (Freehold Development) Act 1973 LEGISLATION CITED: Strata Schemes Management (Miscellaneous Amendments) Act 1996 Strata Schemes Management Act 1996 Strata Titles Act 1973 Building Units and Group Titles Act 1980 (Qld) Companies Clauses Consolidation Act 1845 (Imp) Prescription Act 1832 (Imp) Public Health Act 1875 (Imp)