Southern Cross Hotels Group Pty Limited & anor v The Owners - Strata Plan No 61667 [2007] NSWSC 939

New South Wales Supreme Court

CITATION : Southern Cross Hotels Group Pty Limited & anor v The Owners - Strata Plan No 61667 [2007] NSWSC 939

HEARING DATE(S) : 24 and 25 July 2007

JUDGMENT DATE : 24 August 2007

JURISDICTION : Equity Division

JUDGMENT OF : Windeyer J at 1

DECISION : Plaintiffs have right to access and return from the Restricted Shared Area via the inter-strata doors.

CATCHWORDS : STRATA TITLES – Strata Management Scheme governing adjoining Strata Plans – Construction of Strata Management Scheme – Strata Management Scheme gave owners and occupiers of units in Serviced Apartment Strata Plan exclusive right with owners and occupiers of units in adjoining Residential Strata Plan to use recreation area in Residential Strata Plan's common property – Owners corporation of Residential Strata Plan closed normal access route to recreation area – Alternative access routes to recreation area inferior to normal access route – Whether owners corporation of Residential Strata Plan entitled to close normal access route – Access route determined by objective intention at date of registration of Strata Plan – Questions of reasonableness and incidental rights - REAL PROPERTY – Right to use restricted area of adjoining property – Means of access to the area – Implied and incidental rights

LEGISLATION CITED : Strata Management (Freehold Development) Act 1973

Donnelly v Adams [1905] 1 IR 154 Sharpe v Emery [1860] Legge 1281 CASES CITED : Stephen v Gordon (1983) 22 SCR (Canada) 61 Wheeldon v Burrows [1879] 12 Ch D 31 Wilcox v Richardson (1997) 42 NSWLR 4 Butt: Land Law 5th ed at 1649

The Southern Cross Hotels Group Pty Limited (First Plaintiff) PARTIES : The Owners - Strata Plan No 61641 (Second Plaintiff) The Owners - Strata Plan No 61667 (Defendant)