Jennifer Elizabeth James v The Owners Strata Plan 11478 [2014] NSWSC 337

Supreme Court New South Wales

Medium Neutral Citation: Jennifer Elizabeth James v The Owners Strata Plan 11478 [2014] NSWSC 337 Hearing dates: 13 March 2014 Decision date: 14 March 2014 Before: Darke J Decision: Interlocutory injunction granted upon conditions. Catchwords: REMEDIES - injunction - interlocutory injunction - serious question to be tried - balance of convenience - injunction granted upon conditions

REAL PROPERTY - strata schemes - alleged invalidity of resolutions to amend by-laws Legislation Cited: Strata Schemes Management Act 1996 (NSW), ss 52, 65A Cases Cited: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 Category: Principal judgment Parties: Jennifer Elizabeth James (plaintiff)

The Owners of Strata Plan No. 11478 (first defendant) Robert John Anderson (second defendant) Advanced Community Management Pty Ltd (third defendant) Representation: Counsel: Mr J Baird (plaintiff) Ms K Rees SC (first defendant) Solicitors: Allsop Glover Lawyers (plaintiff) Jane Crittenden (first defendant) File Number(s): 2014/37203 Publication restriction: Nil

Judgment - ex tempore (revised)

Introduction 1The plaintiff is the owner of Lot 3 in Strata Plan 11478. The first defendant is the Owners' Corporation. The second and third defendants are sued as the strata managers. The strata plan consists of six lots and common property in a three storey block in Kenneth Street, Tamarama. Lots 1 and 2 are on the lower level, Lots 3 and 4 are on the middle level, and Lots 5 and 6 are on the upper level. The property enjoys spectacular views to the ocean including from its rear garden. 2There is a lengthy history of disputation between the plaintiff, the Owners' Corporation and the strata manager. There have been proceedings in this Court, as well as in the Federal Court, the District Court and the Consumer Trader and Tenancy Tribunal. 3By a summons filed on 5 February 2014 the plaintiff sought relief including declarations as to the invalidity of certain resolutions for the making of by-laws, and an interlocutory injunction to restrain the carrying out of certain building works in accordance with by-law 46, the validity of which is challenged. Those building works would involve the removal of existing external stairs at the rear of the building. Those stairs are used by, or able to be used by, the occupants of Lot 3 to gain access to the rear garden area on the southern side of the block. At the top of the stairs there is a landing and a doorway that leads directly into Lot 3. The access which Lot 3 thus enjoys to the rear garden is clearly of some benefit to its occupants. Lots 1 and 2 have doorways which lead on to a landing near the foot of the stairs. 4The matter first came before the duty judge, Ball J, on 5 February 2014. Orders for short service were made ex parte. On 10 February 2014 further orders were made by his Honour and the first defendant gave an undertaking in relation to the commencement of the works. 5The matter then came before me in the Duty List on 4 March 2014. The first defendant gave a different undertaking, namely, that it would not commence the works as defined in by-law 46 before next Monday, 17 March 2014. The matter was adjourned until 13 March 2014 when I heard extensive argument from Mr Baird, counsel for the plaintiff, and Ms Rees, senior counsel for the first defendant. The second and third defendants did not appear. They are not directly affected by the interlocutory relief sought.