The Owners Corporation Strata Plan 70672 v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2009] NSWSC 1283

New South Wales Supreme Court

CITATION : The Owners Corporation Strata Plan 70672 v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2009] NSWSC 1283

HEARING DATE(S) : 20 November 2009

JUDGMENT DATE : 30 November 2009

JURISDICTION : Equity

JUDGMENT OF : Forster J at 1

DECISION : See paragraphs 28 to 30 of judgment.

CATCHWORDS : Proceedings commenced by summons - grounds for relief unclear - application for summary dismissal on grounds that no reasonable cause of action disclosed - Held: application for dismissal premature - orders made requiring plaintiff to plead its case.

Interpretation Act 1987 LEGISLATION CITED : Strata Schemes (Freehold Development) Act 1973 Uniform Civil Procedure Rules 2005, rule 13.4(1)(b)

CATEGORY : Procedural and other rulings

General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 CASES CITED : Gibson v Parkes District Hospital (1991) 26 NSWLR 9 Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365

PARTIES : Plaintiff- The Owners Corporation Strata Plan 70672 Defendant- The Trustees of the Roman Catholic Church for the Archdioces of Sydney

FILE NUMBER(S) : SC 3681/09

COUNSEL : Plaintiff- G.A.Sirtes SC, J. Chambers Defendant- R.G.Kaye SC

SOLICITORS : Plaintiff- DTA Lawyers Defendant- Corrs Chambers Westgarth Lawyers

- 9 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

FORSTER J

MONDAY, 30 NOVEMBER 2009

3681/09 THE OWNERS CORPORATION STRATA PLAN 70672 v THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE ARCHDIOCESE OF SYDNEY JUDGMENT 1 HIS HONOUR: By Notice of Motion filed on 2 September 2009 the Trustees of the Roman Catholic Church for the Archdiocese of Sydney ("the Church"), seeks orders that the proceedings be dismissed generally pursuant to rule 13.4(1)(b) of the Uniform Civil Procedure Rules 2005. 2 Rule 13.4(1)(b) provides as follows: "(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: … (b) no reasonable cause of action is disclosed… the court may order that the proceedings be dismissed generally or in relation to that claim." 3 In its Notice of Motion the Church also sought, in the alternative, that the Summons be struck out pursuant to rule 14.28(1)(a) of the Rules. However, that relief is no longer being pursued, given that rule 14.28(1) relates only to a "pleading", which is defined as not including a summons. 4 By its Summons filed on 14 July 2009 the Owners Corporation Strata Plan 70672 ("the Owners Corporation") seeks an order pursuant to section 28U(1)(b) of the Strata Schemes (Freehold Development) Act (1973) ("the SS Act") for the amendment of various provisions of the strata management statement ("the SMS") registered in relation to a development known as the "Cove Development" located in the City of Sydney ("the Development"). 5 The Development consists of Lots 1 and 2 in Deposited Plan 1053387. Lot 1 is further sub-divided by Strata Plan 70672 and is known as the "Cove Apartments". Lot 2 is owned by the Church and comprises three levels of car parking, namely levels P1, P2 and P3. 6 The SMS is in evidence before me. It sets out the rules for the administration and maintenance of the common areas and shared facilities of the Development and deals with various other operational matters. In particular, it deals with the manner in which shared costs are to be apportioned between the Owners Corporation (the owner of Lot 1) and the Church (the owner of Lot 2). It also deals with the manner in which decisions are to be made and with the manner in which the SMS itself may be amended. 7 The evidence satisfies me that for some considerable time, there have been disputes between the Owners Corporation and the Church concerning various operational aspects of the Development, principal amongst which being the proportion in which the shared costs of the operation of the Development should be apportioned. Under Schedule 1 of the SMS, the Church is to bear 5 per cent of those costs, and the Owners Corporation is to bear the balance of 95 per cent. The Owners Corporation asserts that the respective percentages should be 17.23 per cent and 82.77 per cent. 8 The Owners Corporation has sought consensually to have amended various aspects of the SMS, including the percentages contained in Schedule 1, but has been unsuccessful in achieving such amendments. That is because under the provisions of the SMS, the decisions in question can only be made by a committee, whose only members are the Owners Corporation and the Church but, whose decisions must be unanimous. So far, unanimity has not been achieved. 9 The evidence before me suggests that as a consequence, the parties are presently in a position of stalemate, such that there is presently no approved budget, and that, all expenses by way of shared costs are currently being borne entirely by the Owners Corporation. 10 The Owners Corporation seeks to have the SMS amended pursuant to section 28U(1)(b) of the SS Act, which is in the following terms: "28U Amendment of strata management statement (1) A registered strata management statement may be amended only if the amendment is: … (b) ordered under this or any other Act by a court, or …"