Stolfa v Hempton [2010] NSWCA 218

New South Wales Court of Appeal

CITATION: Stolfa v Hempton [2010] NSWCA 218

HEARING DATE(S): 30 April 2010

JUDGMENT DATE: 2 September 2010

JUDGMENT OF: Allsop P at 1; Basten JA at 46; Young JA at 47

1. Extend time for the filing and serving of an application for leave to appeal from the orders of the Equity Division made on 26 June 2009 and dispense with the need to file any document. DECISION: 2. Grant leave to appeal. 3. Direct that the notice of appeal as filed stand as filed pursuant to the above leave. 4. Appeal dismissed with costs.

CATCHWORDS: REAL PROPERTY – strata title – common property – whether work was enhancement or improvement of common property requiring special resolution under Strata Schemes Management Act 1996, s 65A – whether owners corporation authorised work – work constituted repairs and maintenance under s 62 – no special resolution required - REAL PROPERTY – strata title – common property – whether works to enclose a verandah constituting common property with a specific lot in building were authorised under s 65A – specific authorisation can be found in more than one special resolution – first resolution authorised enclosure supplemented by second resolution approving plans - EQUITY – estoppel – unavailability of estoppel – injunctive relief declined as a matter of discretion - DAMAGES – whether primary judge should have remitted question of damages in lieu of an injunction – case not run below – too late for referral of question

Interpretation Act 1987 (NSW) s 8(b) LEGISLATION CITED: Strata Schemes Management Act 1996 (NSW) ss 62, 65A Supreme Court Act 1970 (NSW) s 101(2)(r)(i), (ii) Uniform Civil Procedure Rules 2005 (NSW)