Casuarina Rec Club Pty Limited v The Owners - Strata Plan 77971 [2011] NSWCA 159

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Casuarina Rec Club Pty Limited v The Owners - Strata Plan 77971 [2011] NSWCA 159 Hearing dates: 28 February 2011 Decision date: 24 June 2011 Before: Macfarlan JA at [1]; Young JA at [7]; Handley AJA at [97] Decision: (1) Appeal allowed. (2) Declare that by-laws 22.1 and 27.1(4) made by the respondent are valid by-laws under the Strata Schemes Management Act 1996. (3) Declare that the "Facilities Agreement" made between the parties on 22 March 2007 was authorised by the said by-laws. (4) Vary order 7 made by McDougall J accordingly. (5) Order that the respondent pay the costs of the appeal. (6) Order that the respondent have a certificate under the Suitors Fund Act 1951 in respect of the costs of the appeal if eligible. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: VALIDITY OF BY-LAWS- By-laws made under Strata Schemes Management Act 1996 authorising "Facilities Agreement" with Rec Club 15 minutes from resort- whether such by-laws were outside the powers of the Owners' Corporation- the power to make by-laws is to be construed liberally- limitations on the making of by-laws to be construed from the enabling statute- there must be a clear nexus between the subject matter of a by-law and the use or occupation of the property in question- there is no precise rule to determine the existence of a nexus- where a by-law is original, a very strong case must be made out to declare it invalid- by-laws authorising "Facilities Agreement" upheld as valid. Legislation Cited: Strata Schemes Management Act 1996, ss 12, 43, 44, 45, 47, 49, 50, 61 111 Strata Schemes Management Regulation 2005 Sch 4 Strata Schemes Management Regulation 2010 Sch 5 Cases Cited: AG v Mersey Railway Co [1907] AC 415 AG (Vic) v The Commonwealth [1935] HCA 31; 52 CLR 533 Birmingham Dudley and District Banking Company v Ross (1888) 38 Ch D 295 City Developments Pty Ltd v Registrar-General (NT) [2000] NTSC 33; 156 FLR 1 Dukart v District of Surrey (1978) 86 DLR (3d) 609 Eley v The Positive Government Security Life Assurance Co (1876) 1 Ex D 88 Elliott v NMRP Pty Ltd (Bryson J, 8 November 1994, unreported) Federal Commissioner of Taxation v BHP Minerals Ltd (1983) 68 FLR 132 Forrest v The Manchester, Sheffield and Lincolnshire Railway Co (1861) 30 Beav 40; 54 ER 803 Gallagher v Rainbow [1994] HCA 24; 179 CLR 624 Hamlena Pty Ltd v Sydney Endoscopy Centre Pty Ltd (1990) 5 BPR 11,436 London Association of Shipowners and Brokers v London and India Docks Joint Committee [1892] 3 Ch 242 Mayor of Wellington v May of Lower Hutt [1904] AC 773 New Balkis Eesteling Ltd v Randt Gold Mining Co [1904] AC 165 Pugh v Savage [1970] 2 QB 373 Queen Victoria Niagara Park Commissioners v International Railway Co (1928) 63 OLR 49 Re Ellenborough Park [1956] Ch 131 Todrick v Western National Omnibus Co [1934] 1 Ch 561 White v Betalli [2006] NSWSC 537; 66 NSWLR 690 White v Betalli [2007] NSWCA 243; 71 NSWLR 381 Wilby v West Cornwall Railway Co (1858) 2 H & N 703; 157 ER 290 Category: Principal judgment Parties: Casuarina Rec Club Pty Ltd (Appellant) The Owners - Strata Plan No 77971 (Respondent) Representation: N C Hutley SC and E A J Hyde (Appellant) J B Simpkins SC and P Bambagiotti (Respondent) Norton Rose Australia (Appellant) Leverage Australia (Respondent) File Number(s): CA 2010/231914 Decision under appeal Citation: Santai v The Owners - Strata Plan No 77971 [2010] NSWSC 628 Date of Decision: 2010-06-17 00:00:00 Before: McDougall J File Number(s): SC 2009/298685