Bondi Beach Astra Retirement Village Pty Ltd v Gora [2011] NSWCA 396

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bondi Beach Astra Retirement Village Pty Ltd v Gora [2011] NSWCA 396 Hearing dates: 26 July 2011 Decision date: 15 December 2011 Before: Giles JA at [1] Campbell JA at [6] Whealy JA at [370] Decision: 1. Appeal allowed in part. 2. Set aside the orders made on 19 February 2010 in the court below. 3. In lieu thereof: (a) Declare that the Respondents are bound not to sell transfer or otherwise dispose of the Unit otherwise than pursuant to the provisions of the Buyback Deed dated 30 September 1987 between the Appellant, the late Clifford Evans, and the late Dorothy Evans. (b) Order that the Further Amended Statement of Claim be otherwise dismissed. 4. Order the Respondents to pay one half of the costs of the Appellant of the appeal and to have a certificate under the Suitors Fund Act . No order is made concerning the costs in the court below. [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: REAL PROPERTY - restraints on alienation - whether option to buy back unit in retirement village unenforceable as an invalid restraint on alienation - where prohibition on disposing of any estate or interest in the property without consent of transferor - where restraints bind executors and successors in title in perpetuity - where circumstances in which option to buy back is exercisable effectively prevent disposal of any interest in the property without the option becoming exercisable - where price at which the only permitted sale can be made is bound to be less than the market value of the unrestrained fee simple - where restraints are in practice highly likely to permit a sale to only one person (or its nominee)