Italian Forum Limited v Owners - Strata Plan 60919 [2012] NSWSC 895

Supreme Court New South Wales

Medium Neutral Citation: Italian Forum Limited v Owners - Strata Plan 60919 [2012] NSWSC 895 Hearing dates: 26 July 2012 Decision date: 26 July 2012 Jurisdiction: Equity Division Before: White J Decision: 1. Order that the notice of motion filed on 8 March 2012 be dismissed. 2. Order that the first and second defendants pay the plaintiff's costs of the notice of motion on the ordinary basis. Catchwords: PRACTICE AND PROCEDURE - judgments and orders - power to set aside or vary orders entered -- whether power should be exercised when application is not filed within 14 days of order being entered - Uniform Civil Procedure Rules 2005 (NSW), r 36.16 (3A) - whether Court can dispense with the rule in this case - Civil Procedure Act 2005 (NSW), s 14 - consideration of public policy in all persons being entitled to rely upon orders of court - application to set aside previous orders so much as they affect the plaintiff - whether orders were made irregularly - asserted irregularity as to validity of consent orders - application not properly brought by notice of motion - Uniform Civil Procedure Rules (NSW), r 36.15(1) not engaged

STRATA TITLES - strata management statements - purpose of strata management statement as providing for efficient administration and operation - strata management statement has no effect to the extent it is inconsistent with any other law, including a by-law - whether amendments to strata management statement are invalid because inconsistent with statutory provisions - consideration of Strata Schemes Management Act 1996 (NSW), ss 43 and 47 and Strata Schemes (Freehold Development) Act 1973 (NSW), ss 28U and 28W Legislation Cited: Strata Schemes (Freehold Development) Act 1973 Civil Procedure Act 2005 Strata Schemes Management Act 1996 Cases Cited: The Owners Strata Plan Number 60919 v Consumer Trader and Tenancy [2009] NSWSC 1158 Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235 Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 Ainsworth v Wilding [1896] 1 Ch 673 Perpetual Trustees Australia Ltd v Heperu (No 2) [2009] NSWCA 387; (2009) 78 NSWLR 190 Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 The Owners' Corporation Strata Plan 70672 v The Trustees of the Roman Catholic Church For the Archdiocese of Sydney [2011] NSWSC 973; (2011) NSW Titles Cases 80 146 Gosling v Veley (1847) 7 QB 406 London Association of Ship Owners and Brokers v London and India Docks Joint Committee [1892] 3 Ch 242 White v Betalli [2006] NSWSC 537; (2006) 66 NSWLR 690 White v Betalli [2007] NSWCA 243; (2007) 71 NSWLR 381 Texts Cited: "Adjustment of Contributions in Strata Management Statements" Bede Haines (2012) 86 ALJ 441, edited by P Butt Category: Interlocutory applications Parties: Italian Forum Limited (Plaintiff) The Owners - Strata Plan 60919 (1st Defendant) The Owners - Strata Plan 60918 (2nd Defendant) Dynamic Property Services Ltd (3rd Defendant) Perpetual Trustee Company Ltd (5th Defendant) Representation: Counsel: E W Young (Plaintiff J Jobson (1st, 2nd & 5th Defendants) K McLeod (3rd Defendant) Solicitors: Matulich Lawyers (Plaintiff) Zelden Solicitors (1st, 2nd & 5th Defendants) Lee & Lyons (3rd Defendant) File Number(s): 2007/256863