Jennifer Elizabeth James v The Owners Strata Plan No. SP 11478 (No 4) [2012] NSWSC 590

Supreme Court New South Wales

Medium Neutral Citation: Jennifer Elizabeth James v The Owners Strata Plan No. SP 11478 (No 4) [2012] NSWSC 590 Hearing dates: 7 and 8 May 2012 Decision date: 04 June 2012 Jurisdiction: Equity Division Before: Ball J Decision: (1)The defendant be restrained from registering special by-laws 4 to 11 made by Mr Anderson on 19 December 2011. (2)Within 7 days of the date of this judgment, the plaintiff withdraw caveat AG699803E. Catchwords: STRATA SCHEMES - whether by-laws validly made by strata managing agent appointed under s 162 of the Strata Schemes Management Act 1996 - limits on power of agent appointed under s 162 - whether agent can make by-laws concerning construction and exclusive use - whether special resolution of general meeting of owners corporation required before by-laws can be made - held agent has power to make relevant by-laws. STRATA SCHEMES - whether agent appointed under s 162 acted improperly in exercising his powers - application of "fraud on power" and "fraud on minority" doctrines - whether agent has duty to afford procedural fairness to lot owners when making decisions - whether agent owes duty of care to lot owners when exercising powers conferred under s 162 - held agent did not act improperly. STRATA SCHEMES - by-law authorising construction work under s 65A - whether by-law passed for purpose of "improving or enhancing the common property" - whether removal of external wall is alteration of individual lot - held by-law validly made. STRATA SCHEMES - by-law conferring right of exclusive used under s 52 - whether agent appointed under s 162 can give consent on behalf of lot owners concerned by by-law - meaning of "owner or owners of lot concerned" - whether consent required before by-law passed - held by-laws invalidly made because no written consent of owners concerned. Legislation Cited: Building Code of Australia 2010 Casino Control Act 1992 (NSW) Environmental Planning & Assessment Act 1979 (NSW) Strata Schemes (Freehold Development) Act 1973 (NSW) Strata Schemes Management Act 1996 (NSW) Strata Titles Act 1973 (NSW) Cases Cited: British Equitable Assurance Co Ltd v Bailey [1906] AC 35 Caledonian Collieries Ltd v Spiers (1956-1957) 97 CLR 202 Chauhan v Jaynrees Services Pty Ltd [2008] NSWSC 969 Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242 Gambotto v WCP Ltd (1994-95) 182 CLR 432 General Assembly of the Free Church of Scotland v Lord Overtoun [1904] AC 515 Heydon v NRMA Limited [2000] NSWCA 374; (2000) 51 NSWLR 1 Hinkley v Star City Pty Ltd [2010] NSWSC 1389 Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46 James v Owners Strata Plan No. SP 11478 [2011] NSWSC 1641 James v Owners Strata Plan No. SP 11478 (No 2) [2012] NSWSC 66 Peters American Delicacy Co Ltd v Heath (1939) 61 CLR 457 The Owners - Strata Plan 5709 v Andrews [2009] NSWCA 189 The Owners SP 35042 v Seiwa Australia Pty Ltd [2007] NSWCA 272 Thoo v The Owners Strata Plan No 50276 [2011] NSWSC 657 Young v Owners Strata Plan No 3529 [2001] NSWSC 1135; (2001) 54 NSWLR 60 Category: Principal judgment Parties: Jennifer Elizabeth James (Plaintiff) The Owners Strata Plan No. 11478 (Defendant) Representation: In Person (Plaintiff) F C Corsaro SC (Defendant) In Person (Plaintiff) Jane Crittenden (Defendant) File Number(s): 2011/407847