Waldorf Apartment Hotel, The Entrance Pty Ltd v Owners Corp SP 71623 [2010] NSWCA 226

New South Wales Court of Appeal

CITATION: Waldorf Apartment Hotel, The Entrance Pty Ltd v Owners Corp SP 71623 [2010] NSWCA 226

HEARING DATE(S): 29 July 2010

JUDGMENT DATE: 7 September 2010

JUDGMENT OF: Beazley JA at 1; Hodgson JA at 2; Macfarlan JA at 62

DECISION: Appeal dismissed with costs.

CATCHWORDS: REAL PROPERTY – Strata schemes – Agreement for managing common property – Whether such agreement was authorised by general meeting of owners corporation, or by its executive committee, or by the affixation of its seal, or was entered into by conduct. - CONTRACT – Breach – Repudiation – Whether conduct of manager of common property of strata scheme in using electricity chargeable to the owners corporation was a breach justifying termination of the contract. - EQUITY – Remedies – Injunctions – Whether grant of injunction an indirect way of compelling specific performance – Whether specific performance of agreement for the management of common property would be granted.

LEGISLATION CITED: Strata Schemes Management Act 1996 s 8, 9, 13, 62 – 65, 113, 238

CATEGORY: Principal judgment

Brogden v Metropolitan Railway Co (1877) 2 App Cas 666 Empirnall Holdings Pty Limited v Machon Paull Partners Pty Limited (1988) 14 NSWLR 523 CASES CITED: J.C. Williamson Ltd v Lukey (1931) 45 CLR 282 Owners – Strata Plan No 56443 v Regis Towers Real Estate Pty Limited [2003] NSWCA 274; (2003) 58 NSWLR 78 Suttor v Gundowda Pty Limited [1950] HCA 35; (1950) 81 CLR 418

TEXTS CITED: N C Seddon and M P Ellinghaus, Cheshire and Fifoot's Law of Contract, 9th Australian Edition (2008) LexisNexis Butterworths Australia at pp 639-696

WALDORF APARTMENT HOTEL, THE ENTRANCE PTY LIMITED (ACN 098 532 257) (first appellant) PARTIES: RINBAC PTY LIMITED (ACN 059 356 491) (second appellant) WALDORF AUSTRALIA GROUP PTY LTD (ACN 100 194 045) (third appellant) THE OWNERS CORPORATION OF STRATA PLAN No 71623 (respondent)