Supreme Court New South Wales Medium Neutral Citation: Noon v The Owners - Strata Plan No. 22422 [2014] NSWSC 1260 Hearing dates: 25 - 26 August 2014 Decision date: 16 September 2014 Jurisdiction: Equity Division Before: Darke J Decision: Declarations to be made that two strata scheme by-laws are invalid and of no effect, and that certain property is not used as a retirement village. Catchwords: STRATA SCHEMES - by-laws - by-law conferring exclusive use of common property in favour of entity who is not a lot owner - whether by-law may be made pursuant to general power of the body corporate to manage the common property - Strata Titles Act 1973 (NSW) s 58 - Strata Schemes Management Act 1996 (NSW) s 47 RETIREMENT VILLAGES - whether lot in a strata scheme used as a retirement village - no contractual relationship between owner of lot and operator of retirement village - Retirement Villages Act 1999 (NSW) s 24A REMEDIES - declarations - discretion to withhold relief - availability of alternative remedies - inordinate delay - detriment Legislation Cited: Conveyancing Act 1919 (NSW) s 88B Probate and Administration Act 1898 (NSW) s 44 Real Property Act 1900 (NSW) Retirement Villages Act 1989 (NSW) Retirement Villages Act 1999 (NSW) ss 5(1), 24A Strata Schemes Management Act 1996 (NSW) ss 43(4), 47, 49, 51, 52, 159 Strata Titles Act 1973 (NSW) ss 25, 58 Strata Titles (Freehold Development) Act 1973 (NSW)Strata Schemes (Freehold Development) Act 1973 (NSW) Cases Cited: Bondi Beach Astra Retirement Village Pty Ltd v Gora [2010] NSWSC 81 Bondi Beach Astra Retirement Village Pty Ltd v Gora and Another [2011] NSWCA 396; (2011) 82 NSWLR 665 C G Maloney Pty Ltd v Noon [2011] NSWCA 397 Carre v Owners Corporation - SP 53020 [2003] NSWSC 397; (2003) 58 NSWLR 302 Dainford Limited v Smith and another [1985] HCA 23; (1985) 155 CLR 342 Lin & Anor v The Owners - Strata Plan No. 50276 [2004] NSWSC 88; (2005) NSW ConvR 56-105 Noon v Bondi Beach Astra Retirement Village Pty Ltd [2010] NSWCA 202 Owners - Strata Plan No 43551 v Walter Construction Group Ltd [2004] NSWCA 429; (2004) 62 NSWLR 169 Platt v Ciriello [1998] 2 Qd R 417 The Owners of Strata Plan No 3397 v Tate [2007] NSWCA 207; (2007) 70 NSWLR 344 White v Betalli and Another [2006] NSWSC 537; (2006) 66 NSWLR 690 Category: Principal judgment Parties: Gregory Brian Noon (first plaintiff) Matthew Jack Noon (second plaintiff) The Owners - Strata Plan No. 22422 (first defendant) Bondi Beach Astra Retirement Village Pty Ltd (second defendant) Representation: Counsel: A S Bell SC, S Mirzabegian (plaintiffs) B DeBuse (second defendant) Solicitors: Gilbert + Tobin (plaintiffs) J S Mueller & Co Solicitors (first defendant) McCooe Raves & Poole (second defendant) File Number(s): 2013/194959 Publication restriction: Nil Judgment Introduction 1This case primarily concerns the validity of two by-laws made in respect of the strata scheme for the Bondi Astra building in Campbell Parade, Bondi. The plaintiffs, Mr Gregory Noon and Mr Matthew Noon, claim that for various reasons, by-laws 32 and 34 of Strata Plan No. 22422 are invalid, or void for uncertainty. Declaratory relief is sought. The plaintiffs also seek a declaration that a unit on the top floor of the building, namely unit 42 ("the Property"), is not used as, and is not part of, a retirement village which is operated in the building. 2The plaintiffs are co-executors of the estate of their late father, Mr Brian Noon, who died on 28 October 2007. The plaintiffs obtained a grant of probate from this Court on 12 February 2008. Mr Brian Noon was, and remains, the registered proprietor of the Property. 3The Property is comprised of the land contained within lot 69 of Strata Plan No. 32039. Strata Plan No. 32039, which was registered on 3 June 1987, is a plan of consolidation of some of the lots in Strata Plan No. 22422. The strata scheme for the Bondi Astra building remains based upon Strata Plan No. 22422. Three of the lots in the strata scheme are used for commercial rather than residential purposes. All other lots in the building are used for residential purposes. 4The Owners Corporation of Strata Plan No. 22422 is the first defendant. It has filed a submitting appearance. The second defendant is Bondi Beach Astra Retirement Village Pty Ltd ("Astra"). Astra has, for many years, operated a retirement village known as the Bondi Beach Astra Retirement Village at the building. Astra opposes the plaintiffs' claims for relief. Summary of principal facts 5Strata Plan No. 22422 was registered on 11 February 1985. The lots in the strata scheme, apart from the commercial lots, were affected by a restriction as to user created pursuant to s 88B of the Conveyancing Act 1919 (NSW). The restriction as to user, which is expressed to benefit the local Council, is to the effect that the lots burdened had to be occupied by a person aged 55 years or over. The plaintiffs make no compliant about this restriction. 6The first annual general meeting of the proprietors in Strata Plan No. 22422 took place on 12 December 1986. The minutes record that Mr C G Maloney was present, representing Astra and C G Maloney Pty Ltd. The minutes further record: "A quorum was declared having regard to the proxy vote entitlement of Mr C G Maloney, representing Bondi Beach Astra Retirement Village Pty Ltd, as granted under the Service Agreement between proprietors and the Service Company as agreed under Clause 1(b) of that Service Agreement." 7The minutes of the meeting further record that by-laws 30, 31, 32 and 33 were each passed by unanimous resolution. By-law 32 was in the following terms: "Exclusive use of those parts of the Common Property comprising the swimming pool area, passageways and corridors on all floors, the courtyard areas, and the residents' facilities and lounges on the ground floor will be granted to the Service Company subject to the Service Company properly maintaining and keeping in good repair those areas and that in accordance with the Occupancy Agreement the Service Company will sub-licence all proprietors and occupiers of the residential lots to permit them to use such areas." 8On 3 August 1987, a Change of By-Laws instrument was registered in respect of by-laws 30 to 33. The instrument noted that the relevant resolution had been passed in accordance with the provisions of s 58(2) of the Strata Titles Act 1973 (NSW) ("the 1973 Act"). The 1973 Act was later renamed the Strata Titles (Freehold Development) Act, and then the Strata Schemes (Freehold Development) Act. 9On 11 October 1996, Mr Brian Noon, and his wife Mrs Jennifer Noon, purchased the Property from C G Maloney Pty Ltd. The Contract for Sale clearly disclosed the existence of the restriction as to user, and by-law 32. Disclosure statements, as required by the Retirement Villages Act 1989 (NSW), were attached to the contract. 10The contractual effect of the Contract for Sale, in particular "Disclosure Statement B" which contained numerous "special conditions", was considered in earlier litigation involving the plaintiffs and Astra (see Noon v Bondi Beach Astra Retirement Village Pty Ltd [2010] NSWCA 202). It was held that Mr and Mrs Noon obtained their right of occupation by virtue of their proprietorship, and the Contract for Sale was not a "residence contract" within the meaning of the Retirement Villages Act 1989 (see at [66] to [70] per Giles JA, with whom Macfarlan JA agreed at [126]). 11Mrs Jennifer Noon died on 20 October 2001 and Mr Brian Noon subsequently became the sole registered proprietor of the Property. 12At an extraordinary general meeting of the owners of Strata Plan No. 22422 held on 18 December 2001, a special resolution was passed to amend by-law 32 so that the part of the common property to which it applied was extended to include "the old kitchen and old games room on the first floor", and create by-law 34 in the following terms: "Notwithstanding by-law 32, the Service Company from time to time in its absolute discretion may only lease that part of the residents' facilities known as the old kitchen and the old games room on the first floor to the owners corporation (for a fee of $1 per year and the Service Company shall permit the owners corporation to sub lease the area providing any income earned from sub leasing is paid into the sinking fund or alternatively the administration fund of the strata plan) and during the period of any such lease, the service company and owners corporation on behalf of the service company may exclude from that part of the common property subject to lease, the Proprietors and Occupiers of the Lots of the Strata Plan." 13A Change of By-Laws instrument in respect of the amended by-law 32, and by-law 34, was registered in February 2002. The instrument states that the relevant resolution was passed in accordance with the provisions of ss 47 and 52 of the Strata Schemes Management Act 1996 (NSW) ("the 1996 Act"). There is evidence that a lease of the old kitchen and games room was granted by Astra to the Owners Corporation, and was terminated by Astra on 24 October 2012. The lease itself was not admitted as part of the evidence. 14It appears from the minutes of the meeting that Mr Brian Noon may have given a proxy vote to J Brown, but it is not clear whether (and if so, how) the proxy was voted on the special resolution. 15In about June 2010, Astra lodged a Request under the Real Property Act 1900 (NSW) for the Registrar-General to enter a notification pursuant to s 24A of the Retirement Villages Act 1999 (NSW) against the title of the five lots in Strata Plan No. 32039, including the Property. The Request (AF481004) remains recorded on the title to the Property, as does the restriction as to user, referred to earlier. 16The plaintiffs moved a motion for the repeal of by-laws 32 and 34 at the Annual General Meeting of the Owners Corporation of Strata Plan No. 22422 held on 20 November 2012. The motion was lost. 17Astra was not a lot owner in the strata scheme when either by-law 32 or by-law 34 was made. Since about October 2008, it has owned lot 52 in Strata Plan No. 22422. Astra occupies an office on the ground floor of the building near the entrance foyer. Submissions as to validity of by-laws 32 and 34 18The plaintiffs, for whom Dr A S Bell of Senior Counsel and Ms S Mirzabegian of Counsel appeared, submitted that by-law 32 was invalid on one or more of several grounds. Those grounds may be summarised as: (1)that by-law 32 is repugnant to the rights of lot owners with respect to their enjoyment of the common property of the strata scheme; (2)that by-law 32 was not made in accordance with the available statutory power for the making of an exclusive use by-law, namely, s 58(7) of the 1973 Act; and (3)that by-law 32 fails to identify "the Service Company" and "the Occupancy Agreement" to which it refers, and fails to identify the extent of the common property upon which it operates, and is thus too uncertain. 19The repugnancy argument rests upon the proposition that strata scheme by-laws may be characterised as delegated legislation. If that is so, such a by-law would be invalid if it contradicts, is repugnant to, or is inconsistent with the Act under which it is made (see The Owners of Strata Plan No 3397 v Tate (2007) 70 NSWLR 344; [2007] NSWCA 207 at [37] per McColl JA). 20The plaintiffs submitted that by-law 32 was repugnant to the rights lot owners had to possession of the common property. Reference was made to Owners - Strata Plan No 43551 v Walter Construction Group Ltd (2004) 62 NSWLR 169; [2004] NSWCA 429 at [42]-[45] where Spigelman CJ approved of certain statements to the effect that the lot owners in a strata scheme had an interest in relation to the common property akin to equitable tenants in common. I was also referred to Lin & Anor v The Owners - Strata Plan No. 50276 [2004] NSWSC 88; (2005) NSW ConvR 56-105, where Gzell J stated at [9] that an equitable tenant in common with another is entitled, concurrently with the other, to possession of the property, and neither is entitled to turn the other out. The plaintiffs submitted that, in circumstances where there was no agreement between Astra and the owners of the Property concerning the common property, the effect of by-law 32 was to deprive the owners of their right to use and enjoy the common property (including so as to enable access to their lot), and this was inconsistent with the rights such an owner has under the strata titles legislation. The plaintiffs further submitted that the detrimental effect of by-law 32 was real, and not merely theoretical, as evidenced by an incident in February 2011 when an agent of the plaintiffs (Mr Kemter) was informed by an employee of Astra (Mr Wood) that he was not permitted to remain upon the common property without Astra's permission. I accept the evidence of Mr Kemter (which was supported by his contemporaneous notes) concerning the details of the incident. 21The plaintiffs also submitted that by-law 32 was of no force or effect due to the operation of s 43(4) of the 1996 Act. That sub-section provides that a by-law is of no force or effect to the extent that it is inconsistent with the 1996 Act or any other Act or law. It was contended that the by-law was inconsistent with the rights of lot owners, conferred by statute, to use and enjoy the common property of a strata scheme. 22It was further put that by-law 32 interferes with the ability of the owners of the Property to enter into leases of the Property because it was not possible to guarantee that a tenant would be able to use the common property and hence obtain access to the Property. Accordingly, so it was submitted, the by-law offended s 58(6) of the 1973 Act, or the equivalent s 49(1) of the 1996 Act. Those provisions state, inter alia, that no by-law is capable of operating to prohibit or restrict a transfer, lease, mortgage or other dealing with a lot in a strata scheme. 23The statutory power argument focuses upon s 58 of the 1973 Act. Section 58 relevantly provided: "(2) Except as provided in subsection (7) or (11), a body corporate pursuant to a special resolution, may, for the purpose of the control, management, administration, use or enjoyment of the lots or the lots and common property the subject of the strata scheme concerned, make by-laws amending, adding to, or repealing the by-laws set forth in Schedule 1, other than by-laws 1-11 set forth in that Schedule, or any by-laws made under this subsection. [...] (5) Without limiting the operation of any other provision of this Act, the by-laws for the time being in force bind the body corporate and the proprietors and any mortgagee in possession (whether by himself or any other person), or lessee or occupier, of a lot to the same extent as if the by-laws had been signed and sealed by the body corporate and each proprietor and any such mortgagee, lessee and occupier respectively and as if they contained mutual covenants to observe and perform all the provisions of the by-laws. (6) No amendment of or addition to a by-law and no by-law made after the date of assent to the Strata Titles (Amendment) Act, 1984, shall be capable of operating to prohibit or restrict the devolution of a lot or a transfer, lease, mortgage, or other dealing therewith. (7) Without limiting the generality of any other provision of this section, a body corporate may, with the consent in writing of the proprietor of a lot, pursuant to a unanimous resolution make a by-law in respect of that lot conferring on that proprietor the exclusive use and enjoyment of, or special privileges in respect of, the common property or any part thereof upon such terms and conditions (including the proper maintaining and keeping in a state of good and serviceable repair of the common property or that part of the common property, as the case may be, and the payment of money by that proprietor to the body corporate) as may be specified in the by-law and may, pursuant to a unanimous resolution, make a by-law amending, adding to or repealing any by-law made under this subsection if the proprietor of the lot at the time the by-law is made to effect the amendment, addition or repeal has given written consent to its being made. [...] (8) Any by-law referred to in subsection (7) shall, while it remains in force, enure as appurtenant to, and for the benefit of, the lot in respect of which it was made and the proprietor and occupier thereof for the time being. (9) The proprietor for the time being of a lot in respect of which a by-law referred to in subsection (7) is in force: (a) is, subject to section 70(3), liable to pay to the body corporate any moneys referred to in the by-law in accordance with the by-law; and (b) is, unless excused by the by-law, responsible for the performance of the duties of the body corporate under section 68(1)(b)(i) in respect of the common property, or the part of the common property, to which the by-law relates." 24The plaintiffs submitted that on a proper construction of s 58, the power of the body corporate to make an exclusive use by-law with respect to common property was contained only within s 58(7) of the 1973 Act. It was submitted that the express provisions of s 58(7), which required a unanimous resolution and the consent of the relevant proprietor of a lot, evinced an intention that exclusive use by-laws had to be made under s 58(7), rather than the general provisions of s 58(2) which required only a special resolution. The plaintiffs further emphasized that whilst a transfer or lease of common property was permitted pursuant to s 25 of the 1973 Act, any such transfer or lease had to be pursuant to a unanimous resolution. 25The plaintiffs then submitted that by-law 32 was not made pursuant to s 58(7) of the 1973 Act, not least because Astra was not then a proprietor of a lot in the strata scheme. 26In support of the submission that s 58(7) was the sole source of power to make exclusive use by-laws in respect of the common property, the plaintiffs embraced certain obiter dicta of Bryson AJ concerning by-law 32 in Bondi Beach Astra Retirement Village Pty Ltd v Gora [2010] NSWSC 81 at [61]-[65]. 27Astra accepted that it was not the proprietor of a lot at the time by-law 32 was made, and that the by-law was not made pursuant to s 58(7) of the 1973 Act. However, Astra maintained that the by-law was validly made pursuant to s 58(2) of the 1973 Act. 28In relation to the argument that by-law 32 is too uncertain, the plaintiffs referred to the judgment of McColl JA in The Owners of Strata Plan No 3397 v Tate (supra) at [71] where her Honour distilled a number of propositions relevant to the interpretation of by-laws made under strata titles legislation. Amongst those propositions were the following: (1)whether they be characterised as delegated legislation or statutory contracts, exclusive use by-laws should be interpreted objectively by what they would convey to a reasonable person; (2)an exclusive use by-law should be construed so that it is consistent with its statutory context; and (3)caution should be exercised in going beyond the language of the by-law and its statutory context to ascertain its meaning, and a tight rein should be kept on having recourse to surrounding circumstances. 29The plaintiffs submitted that the terms of by-law 32 do not define or otherwise identify the Service Company or the Occupancy Agreement, and the meaning of the by-law was thus uncertain. It was further submitted that insofar as it may be permissible to have regard to surrounding circumstances, as urged by Astra, the evidence did not overcome the apparent uncertainty, particularly in relation to the Occupancy Agreement. The plaintiffs similarly submitted that by-law 32 was uncertain because there was a lack of definition of the various parts of the common property in respect of which the by-law was expressed to operate. 30In relation to by-law 34, the plaintiffs advanced similar arguments based on repugnancy, lack of statutory power, and uncertainty. It was also submitted that by-law 34 is of no practical or legal effect because the Service Company, which only has an exclusive licence over "the old kitchen and old games room on the first floor", is unable to grant a lease of that area in favour of the Owners Corporation as contemplated by the by-law. 31As to repugnancy, it was submitted that by-law 34 by its terms expressly denies the rights of lot owners to enjoy part of the common property during the period of the contemplated lease. Reliance was again placed upon s 43(4) of the 1996 Act, to submit that by-law 34 was of no force or effect as it was inconsistent with the statutory rights of lot owners to use and enjoy the common property of a strata scheme. Reliance was also placed upon s 49(1) of the 1996 Act (which is broadly equivalent to s 58(6) of the 1973 Act), to submit that the by-law was invalid or of no effect because it was capable of operating to restrict the leasing of a lot. 32As to lack of statutory power, it was submitted that by-law 34 was not made in accordance with ss 51 and 52 of the 1996 Act (which sections are broadly equivalent to s 58(7) of the 1973 Act), and there was no power to make such a by-law under s 47 of the 1996 Act (which section is broadly equivalent to s 58(2) of the 1973 Act). 33Again, Astra accepted that it was not a lot owner at the time of the making of by-law 34, but contended that the by-law was validly made pursuant to the power given by s 47 of the 1996 Act. 34As to uncertainty, the plaintiffs submitted that the terms of by-law 34 did not identify the Service Company and did not sufficiently identify "the old kitchen and the old games room on the first floor" that is the subject of the by-law. Standing 35Astra challenged the plaintiffs' standing to bring the proceedings. It submitted that they lacked standing because they were not the registered proprietors of the Property. The late father of the plaintiffs, Mr Brian Noon, remains the registered proprietor. Astra submitted that it was not sufficient that the plaintiffs had a grant of probate in relation to the estate of their late father. 36The plaintiffs contended that they had sufficient standing because: (1)they were persons whose names had been entered on the strata roll as an owner in relation to the Property pursuant to s 98 of the 1996 Act, and hence were defined as owners of the lot under that Act (see the definition of "owner of a lot in a freehold strata scheme"); and (2)upon the grant of probate on 12 February 2008, their late father's title to the Property became vested in them (as from the date of his death) by virtue of s 44 of the Probate and Administration Act 1898 (NSW). 37It is clear that the names of the plaintiffs have been entered on the strata roll as owners (in accordance with s 98(1) of the 1996 Act). According to the first plaintiff, this occurred in about April 2008. The evidence does not disclose the circumstances in which the entry occurred. 38In my opinion, as persons in whom their late father's interest in the Property has vested pursuant to s 44 of the Probate and Administration Act, and as persons whose names have been entered on the strata roll as owners, the plaintiffs have a sufficient interest in the subject matter of these proceedings to have standing to bring them and claim the relief sought. The plaintiffs have both a proprietary interest in the Property (as executors with a grant of probate), and a recognised statutory status as owners of a lot. As the definition of "owner of a lot in a freehold strata scheme" shows, that status does not depend upon being the registered proprietor of an interest in fee simple. Moreover, that status carries with it various rights and responsibilities as provided under the legislation, and in practical terms places the plaintiffs on the same footing as owners of other lots in the strata scheme. The mere fact that the plaintiffs are not also the registered proprietors of the Property does not lead to the conclusion that they lack standing to challenge strata scheme by-laws or seek declaratory relief in respect of the Property, particularly as they are the legal personal representatives of the registered proprietor. The validity of by-law 32 39I propose to deal first with the argument that there was no statutory power to make the by-law. By-law 32 provides for exclusive use of various parts of the common property to be granted to "the Service Company", subject to conditions that the Service Company properly maintain those parts and, in accordance with "the Occupancy Agreement" will, by way of sub-licence, permit the owners and occupiers of the residential lots to use those parts. Astra contends that "the Service Company" was intended as a reference to it. I will make that assumption for the purposes of the argument. 40It is common ground that Astra was not a lot owner at the time the by-law was made in 1986. It follows that the by-law cannot be said to have been made in accordance with the power given by s 58(7) of the 1973 Act which permits the making of by-laws that confer upon the proprietor of a lot the exclusive use or enjoyment of, or special privileges in respect of, the common property or any part of it. Accordingly, the central question becomes whether the by-law, which provides for exclusive use of parts of the common property to be granted (subject to conditions) to someone other than a lot owner, may be justified as a by-law made pursuant to the power given by s 58(2) of the 1973 Act. 41Section 58(2) permits the making of by-laws for the purpose of the control, management, administration, use or enjoyment of the lots, or the lots and common property. Astra contends that by-law 32 is such a by-law. It submits that in the context of a building that was intended to be largely used as a retirement village, the by-law should be seen as one made for the purpose of the control, use or enjoyment of the lots and common property. 42Astra contends that whilst a by-law that gives exclusive use and enjoyment of the common property or any part of it to a lot owner can only be made pursuant to s 58(7), where exclusive use is to be given to someone who is not a lot owner, s 58(2) is available as a head of power for the making of a by-law to that effect. On that basis, the rights of lot owners to use and enjoy the common property may be entirely curtailed by the body corporate, in furtherance of its powers of management, making a by-law under s 58(2) in favour of someone who is not a lot owner. 43In Lin & Anor v The Owners - Strata Plan No. 50276 (supra) Gzell J considered the validity of certain by-laws in the context of the provisions of the 1996 Act. One of the by-laws (by-law 21(h)) conferred upon the owners corporation power to permit proprietors, lessees and occupiers of lots to use any part of the common property for any purpose approved by the owners corporation. As his Honour noted (at [23]) there was a tension in the legislation between the rights of lot owners as the equitable owners of the common property, and the rights of control, management and administration of the property by the owners corporation as the legal owner. 44Gzell J referred to the decision of the Queensland Court of Appeal in Platt v Ciriello [1998] 2 Qd R 417. His Honour endorsed the approach taken by Pincus JA (in dissent), and stated that it was implicit in that approach that the power of management and control possessed by a body corporate (under the Queensland Strata Titles legislation) cannot exclude the use and enjoyment of common property conferred by the legislation on lot owners (see at [32]-[34]). Gzell J held (at [41]) that by-law 21.1(h) and the powers of management and control under the 1996 Act did not entitle the owners corporation to exclude the plaintiffs in that case from the use and enjoyment of an exhaust ventilation system that was part of the common property. 45In Bondi Beach Astra Retirement Village Pty Ltd v Gora (supra), Bryson AJ considered by-law 32 itself in the context of a dispute involving the question whether the contractual promises made by Astra in an Occupancy Agreement entered into with the owners of lot 40 in Strata Plan No. 22422 were illusory (see at [60]). 46His Honour stated at [61]-[65]: "Rights purportedly conferred by By-law 32 are not conferred in respect of any lot, and they are not conferred on a proprietor. They are not exclusive rights, as By-law 32 in its own terms requires BBA [Astra] to give licences to proprietors. In my opinion By-law 32 produced no practical effect. At the basis of much of what BBA promised the Evans [the owners of lot 40] it would do is By-law 32, its apparent conferral on BBA of exclusive use of the common areas of the strata plan and the licence granted to the Evans by BBA to make use of the common areas. Underlying assumptions about what BBA could do with the common property rest on By-law 32. In my opinion the right and opportunity of a lot owner to use common property, in an appropriate way is basal to an understanding of the rights of owners of lots in a strata plan. I do not see any express conferral of rights to use common property in the Strata Titles Act 1973; but that right is implied and is sufficiently conferred by the reference to the common property as common. It is common to all proprietors, and exclusive of anybody else. This basal assumption is context in which to approach s 58(7) of the Strata Titles Act, and demonstrates that it is only by following the means offered by s 58(7) and in accordance with its provisions that a by-law, made after the constitution of the body corporation and registration of its strata plan, can alter or qualify entitlements with respect to common property. The rights by which By-law 32 purportedly confers on BBA were not conferred on a proprietor; BBA was not then a proprietor. It has been a proprietor on several occasions and for brief periods since then, but these were much later occasions when it has bought back lots under Occupancy Agreements and then re-sold them; rights in respect of the common property generally have no relation to those proprietorships. In my opinion By-law 32 has never had any effect, and has never operated to give any exclusive rights to the plaintiff, to diminish any rights of proprietors with respect to common property, or to make the rights of proprietors dependent on any arrangement they have made with BBA." 47His Honour's statement, that owners of lots had an implied right under the 1973 Act to use the common property in an appropriate way, is consistent with the approach taken by Barrett J (as his Honour then was) in Carre v Owners Corporation - SP 53020 [2003] NSWSC 397; (2003) 58 NSWLR 302 at [28]-[29], and the approach taken by Gzell J in Lin & Anor v The Owners - Strata Plan No. 50276 (supra) at [7]-[8], which were expressly approved by Spigelman CJ in Owners - Strata Plan No 43551 v Walter Construction Group Ltd (supra) at [45]. That is, lot owners have an interest in relation to common property akin to equitable tenants in common. 48According to Bryson AJ, the "basal assumption" that owners of lots had rights to use the common property itself demonstrated that it was only by following the means offered by s 58(7) that a by-law made after registration of the strata plan could alter or qualify a lot owner's entitlements with respect to common property. As noted earlier, the plaintiffs embraced this reasoning of Bryson AJ in support of their contention that s 58(7) was the sole source of power in the 1973 Act to make by-laws that provide for exclusive use of common property. The views of Bryson AJ in relation to by-law 32 are clearly obiter dicta but are nonetheless entitled to be afforded substantial weight. 49In my view, s 58 of the 1973 Act, read in the context of the Act as a whole, ought not be construed so that the general power to make by-laws under s 58(2), for the purpose of the control, management, administration, use or enjoyment of the lots or the lots and common property, extends to empower the body corporate to make a by-law that confers rights of exclusive use and enjoyment of common property. 50The opening words of s 58(2) indicate that the power is not able to be exercised in the area "as provided in subsection 7". Section 58(7) deals with by-laws that confer upon a proprietor of a lot the exclusive use and enjoyment of, or special privileges in respect of, the common property or any part of it. As pointed out by Mr DeBuse of Counsel, who appeared for Astra, s 58(7) is concerned only with the conferring of such rights upon lot owners, and is silent as to persons who are not lot owners. It was therefore submitted that s 58(2) remains available to authorise the making of by-laws that confer such rights upon persons who are not lot owners. 51I do not think that submission is correct. Section 58(7) should be seen as being concerned with the making of by-laws that confer rights of a certain nature in respect of the common property. The fact that only the owner of a lot could be the beneficiary of such a by-law does not, to my mind, suggest an intention that a by-law of that nature could be made outside of s 58(7), provided that it is made in favour of a person who is not the owner of a lot. 52Section 58(7) is a specific provision which identifies circumstances in which the rights of lot owners with respect to common property may be curtailed by the grant of rights of exclusive use and enjoyment. Unlike s 58(2), it provides that the resolution for the by-law must be passed unanimously. Moreover, there is nothing in s 58(5) to suggest that it was intended that by-laws, including by-laws giving exclusive use of the whole or part of the common property, could be made in favour of (and be binding upon) persons who were not lot owners. Such a person would not in my view be regarded as the occupier of a lot within the meaning of s 58(5). 53The provisions of s 25 of the 1973 Act should also be noted. When by-law 32 was made, ss 25(1) and (2) provided that the body corporate could execute a transfer or lease of common property, but this could only be done pursuant to a unanimous resolution. As pointed out by the plaintiffs, if an exclusive use by-law under s 58(7) in favour of a lot owner, and also a lease of common property under s 25, requires a unanimous resolution, it would be anomalous if an exclusive use by-law in favour of a person who is not a lot owner could be made under s 58(2), which requires only a special resolution. 54For these reasons, and consistent with the reasoning of Gzell J and Bryson AJ referred to above, I have concluded that the power to make by-laws under s 58(2) does not authorise the making of a by-law that confers upon a person (whether a lot owner or not) exclusive use and enjoyment of the common property, or any part of it. In my view, the only power under the 1973 Act to make a by-law that confers such exclusive use and enjoyment was contained in s 58(7). 55By-law 32, in its terms, confers exclusive use of part of the common property upon the Service Company (assumed to be Astra), albeit subject to conditions, one of which envisages the Service Company granting sub-licenses to the owners of the residential lots. The by-law was not made pursuant to s 58(7), and was not authorised by s 58(2). Accordingly, by-law 32 was not validly made. 56It is not strictly necessary to consider the remaining grounds upon which by-law 32 was said to be invalid. Nevertheless, I was urged to deal with all of the grounds, and I will do so, albeit relatively briefly. 57I will deal first with the repugnancy argument. I do so on the basis that it is an available view that strata scheme by-laws may be characterised as delegated legislation, to which the inconsistency principle applies (see The Owners of Strata Plan No 3397 v Tate (supra) at [35] and [37] per McColl JA). 58The plaintiffs' submissions placed some emphasis upon the fact that there was no agreement between Astra and the owners of the Property concerning the relevant common property, and hence the effect of the by-law was to deprive the owners of the Property of their rights to use and enjoy that common property (including so as to enable access to the Property), and any lessee would similarly have no rights to use and enjoy that common property. However, it seems to me that an argument based on repugnancy must be primarily concerned with the terms of the subordinate enactment, not the manner of its operation. 59By-law 32, in its terms, imposes a condition that the Service Company, in accordance with the Occupancy Agreement, will, by way of sub-licence, permit the owners and occupiers of residential lots to use the parts of the common property in respect of which it has been given exclusive use. Perhaps due to oversight, no such agreement was ever entered into with the plaintiffs' parents, and no such agreement has been sought by the plaintiffs themselves. In any event, I do not think that the question whether by-law 32 is repugnant to the 1973 Act can be answered on the basis that, at least in respect of the Property, the condition about permitting use of the common property has not in fact been fulfilled. 60Despite the existence of that condition which, if fulfilled, would give the proprietors of residential lots the right to use the relevant common property, the by-law must be construed as one which purports to confer on the Service Company (again, assumed to be Astra) exclusive use of part of the common property. In my view, the by-law, when made, was repugnant to or inconsistent with the 1973 Act, because the extent of authority given by that Act to make by-laws does not extend to a by-law that gives exclusive use of common property, unless the by-law is made in accordance with s 58(7). In other words, the repugnancy arises from a lack of available statutory power, and the repugnancy argument does not in truth give rise to a ground of invalidity that is separate from the lack of statutory power ground. 61A further argument advanced by the plaintiffs in this context was that by-law 32 was of no force or effect due to the operation of s 43(4) of the 1996 Act. Section 43(4), which came into force in 2005, provides that a by-law is of no force or effect to the extent that it is inconsistent with the 1996 Act or any other Act or law. As I understood the argument, it was put that by-law 32 was inconsistent with the rights of lot owners, conferred by the applicable legislation, to use and enjoy the common property. The argument was not specifically addressed by Mr DeBuse. 62In my opinion, the by-law is inconsistent with those rights. The by-law purports to confer exclusive use rights upon the Service Company in relation to part of the common property, albeit subject to a condition that the Service Company enter into sub-licences with some of the lot owners to permit them to use such property. The terms of such agreements are not otherwise specified in the by-law. 63The conferral of exclusive use rights upon a person who is not a lot owner is prima facie inconsistent with the rights of lot owners to use and enjoy the common property. The condition does not, in my opinion, overcome that prima facie inconsistency in circumstances where it operates only for the benefit of some lot owners, and the terms upon which permission is given to those owners to use the Property is not clear. 64In my view, that inconsistency between the by-law on the one hand, and rights of lot owners which arise under the applicable legislation on the other (notably, the rights to use and enjoy common property arising from ss 20 and 24 of the 1973 Act), means that the by-law is inconsistent with the 1973 Act itself. The by-law, in its terms, is inconsistent with rights that are central to the legislative scheme. By reason of s 43(4) of the 1996 Act, the by-law is of no force or effect to the extent of the inconsistency. Accordingly, by-law 32 is ineffective insofar as it purports to confer exclusive use rights upon the Service Company in relation to part of the common property. 65The remaining argument advanced by the plaintiffs in this context was that by-law 32 offended s 58(6) of the 1973 Act (or the equivalent s 49(1) of the 1996 Act) because it interfered with the ability of the owners of the Property to enter into leases of the Property. However, that does not amount to an argument against the validity of by-law 32. Sections 58(6) and 49(1) do not strike at the validity of a by-law; they are concerned only to limit the operation of a by-law (see White v Betalli and Another [2006] NSWSC 537; (2006) 66 NSWLR 690 at [53] per White J). As no issue of validity is raised by the argument, I do not propose to deal further with it. 66I turn now to consider the argument that by-law 32 is invalid because it is too uncertain. I referred earlier to the proposition enunciated by McColl JA in The Owners of Strata Plan No 3397 v Tate (supra) at [71], that caution should be exercised in going beyond the language of a by-law and its statutory context to ascertain its meaning, and a tight rein should be kept on having recourse to its surrounding circumstances. I was also referred by Mr DeBuse to some passages from the judgments of Gibbs CJ (at 348-9) and Wilson J (at 359) in Dainford Limited v Smith and another [1985] HCA 23; (1985) 155 CLR 342 in support of the propositions that a by-law may refer to some other document, and incorporate it or apply it, "provided that what is referred to is sufficiently certain", and that there was no reason why something that is not defined in a by-law may not be identified with certainty by reference to another document or extrinsic facts, which might include the documents of the body corporate. 67The application of those principles may well overcome any difficulties in identifying "the Service Company" (which is identified as Astra in the minutes of the meeting at which by-law 32 was passed), or the parts of the common property the subject of the by-law. However, they do not in my view overcome the difficulty in identifying "the Occupancy Agreement" referred to in by-law 32. 68The Occupancy Agreement plays an important role within the by-law. The condition requiring the Service Company to permit the owners and occupiers of residential lots to use the common property the subject of the by-law stipulates that this was to occur by way of sub-licence "in accordance with the Occupancy Agreement". Accordingly, the terms of "the Occupancy Agreement" need to be known in order to ascertain whether the grant of any sub-licence by the Service Company is in accordance with the by-law. 69Astra accepts that there is no single Occupancy Agreement. Nonetheless, Mr DeBuse submitted that "the Occupancy Agreement" should be understood as referring to the terms by which the retirement village has from time to time given rights of occupancy to residents, and the expression should thus be read as "an Occupancy Agreement" not "the Occupancy Agreement". Mr DeBuse further submitted that when prospective residents come along, they are given Disclosure Statements as required under the applicable Retirement Villages legislation, and those statements provide details of the contracts which residents will enter into, including those which give rights of occupancy. 70The evidence does establish that since the creation of the strata scheme, agreements (sometimes called an Occupancy Agreement, and, in more recent times, called a Deed for Provision of Services) have been entered into between Astra (described as either the Service Company or the Operator) and retirement village residents, whereby the residents are given the right to use and enjoy the common property that is the subject of by-law 32. 71I very much doubt that those circumstances can be legitimately taken into account in the task of interpreting by-law 32. In any event, establishing that Astra has, over the years, entered into agreements with lot owners, on various terms, that provide for those owners to have the right to use the relevant common property, does not overcome the problem that the by-law employs the definite article in relation to "Occupancy Agreement", and does so in a context that indicates that the Service Company will act in accordance with such agreement when it deals with the owners of the residential lots. In my view, that which is intended by "the Occupancy Agreement" is neither identified in the by-law itself, nor otherwise identified with any certainty. Accordingly, by-law 32 should also be regarded as invalid due to uncertainty. The validity of by-law 34 72By-law 34 cannot be viewed in isolation from by-law 32. By-law 32 is the foundation upon which by-law 34 rests. In essence, by-law 34 purports to qualify the condition in by-law 32 that requires the Service Company to grant permission for the owners and occupiers of residential lots to use the common property the subject of the by-law. By-law 34 purports to allow the Service Company to "lease" part of that common property to the owners corporation to enable it to "sub-lease" the property (on certain conditions), and provides that during the term of any such lease, the Service Company may exclude owners of lots from that property. 73In my view, by-law 34 assumes the existence of by-law 32, and purports to operate upon the basis that the Service Company has, in accordance with that by-law, the exclusive use of part of the common property, subject to the conditions there set out. It therefore seems to me that by-law 34 should be regarded as provision which, in conjunction with by-law 32, provides for the Service Company, subject to certain conditions, to have exclusive use of part of the common property. 74By-law 34 then purports to further curtail the rights of lot owners to use and enjoy that part of the common property described as the old kitchen and old games room on the first floor. It does so by treating the Service Company as having the right to "lease" those areas and exclude lot owners from them. 75In circumstances where, as was common ground, Astra was not a lot owner when by-law 34 was made in 2001, by-law 34 cannot be said to have been made in accordance with ss 51 and 52 of the 1996 Act. Moreover, applying similar reasoning to that adopted above in relation to s 58 of the 1973 Act, the power to make by-laws under s 47 of the 1996 Act (the equivalent of s 58(2) of the 1973 Act) does not in my view authorise the making of a by-law that provides for exclusive use and enjoyment of the common property or any part of it. I can discern no good reason (and none was suggested) to construe these provisions of the 1996 Act in a manner different from their predecessor provisions of the 1973 Act. That is so notwithstanding the fact that by the time by-law 34 was made, s 25 of the 1973 Act had been amended to permit a lease of common property to occur pursuant to a special (not unanimous) resolution. I therefore conclude that by-law 34 was not validly made. The same conclusion applies in respect of the amendment of by-law 32, which occurred on the same occasion, and purported to include additional property within the purview of by-law 32. 76Again, whilst it is not strictly necessary to deal with the other grounds upon which the validity of by-law 34 was challenged, I will at least indicate that I would conclude, as I did in relation to by-law 32, that by-law 34 was inconsistent with the rights of lot owners, conferred by the applicable legislation, to use and enjoy the common property, and was therefore of no force or effect by reason of s 43(4) of the 1996 Act. 77I would not have held by-law 34 to be invalid merely because the use of the word "lease" incorrectly assumes that the Service Company had a proprietary interest capable of supporting a grant of a lease. Read in its context, including by-law 32 itself, it is apparent that the Service Company had no more than an exclusive licence. The word "lease" should not therefore be read strictly, but rather as a term intended to be broadly descriptive of the arrangements for the use of the relevant part of the common property, as contemplated by the by-law. 78I prefer not to express a conclusion as to whether by-law 34 may also be invalid due to uncertainty. That argument rested on an asserted lack of identification of "the Service Company" and of those parts of the common property that were the subject of the by-law. As noted earlier, such difficulties may be able to be overcome, including by reference to extrinsic facts. As little attention was given to the adducing of such facts, and as it is not necessary to reach a concluded view, I will refrain from doing so. Is the Property part of a retirement village or used as a retirement village? 79The issue arises in the context of s 24A of the Retirement Villages Act 1999 which relevantly provides: "(1) The operator of a retirement village must, in accordance with this section, notify the Registrar-General in writing that the land comprising the retirement village (or land that is part of the retirement village) is used as a retirement village. Maximum penalty: 100 penalty units (2) Any such notice is to be provided: (a) in the case of land that, immediately before the commencement of this section, was used as a retirement village-within 3 months after the commencement of this section, or (b) in any other case-before entering into a residence contract with respect to residential premises on that land. [...] (5) On receipt of a notice under subsection (1), the Registrar-General is to make a recording on the relevant Register indicating that the land to which the notice relates comprises, or is part of, a retirement village. [...] (8) Information that is recorded under this section may be used to establish a publicly available list of retirement villages. (9) A person may apply in writing to the Registrar-General for the removal of a recording made under this section. (10) The application referred to in subsection (9) must be: (a) in the form approved by the Registrar-General, and (b) in the case of an application relating to land under the Real Property Act 1900 -accompanied by the fee prescribed under that Act, and (c) in the case of an application relating to land not under the Real Property Act 1900 -accompanied by the fee prescribed under the Conveyancing Act 1919. (11) If the Registrar-General receives an application referred to in subsection (9), the Registrar-General may, if satisfied that: (a) there are no residential premises located on the land to which the recording relates that are the subject of a village contract, and (b) there are no amounts outstanding that are payable under a village contract relating to residential premises located on the land to which the recording relates, remove the recording to which the application relates." 80It was pursuant to that section that Astra lodged a Request under the Real Property Act 1900 in June 2010 in respect of the five lots in Strata Plan No. 32039, including the Property (lot 69 of that strata plan). Section 24A(1) requires an operator of a retirement village to give notice that certain land "is used as a retirement village". The Request in this case stated that the whole of the land in folio identifiers 65, 66, 67, 68 and 69 of Strata Plan No. 32039 "is used as a retirement village known as Bondi Beach Astra Retirement Village". As mentioned earlier, the Request remains recorded on the title to the Property. The recording, the terms of which appear to depart from the requirements of s 24A(5) of the Retirement Villages Act, is in the following terms: "The land in the Strata Scheme is used as a retirement village under the Retirement Villages Act 1999 known as Bondi Beach Astra Retirement Village." 81The plaintiffs accept that they need to make an application under s 24A(9) for removal of the recording. They submit that the declaratory relief sought will aid them in that endeavour. The declaration sought is that the Property "is not used as and is not part of a retirement village under the Retirement Villages Act 1999". 82Mr DeBuse, in his closing submissions, conceded that the Property is not used as part of the retirement village operated by Astra. That concession seems to me to have been properly made. Mr Lake, a director of Astra, gave evidence to the effect that the company had never entered into any contract with Mr and Mrs Noon, or the plaintiffs. It follows that no "village contract" within the meaning of the Retirement Villages Act 1999 has ever existed between the owners of the Property and Astra. Although the Property is located in the same building as the retirement village, in practical terms it is no more part of the village than the three lots used for commercial purposes. In the absence of any contractual relationship between the owners of the Property and the operator of the village, it would be artificial to regard the Property as being used as, or as part of, the village. 83In my view, to the extent that the recording on the title to the Property suggests that the Property is used as a retirement village under the Retirement Villages Act 1999, it does not reflect the true position. The Court will make a declaration to the effect that the Property is not used as a retirement village under the Retirement Villages Act 1999, known as Bondi Beach Astra Retirement Village. 84As the terms of the recording are directed to the use of land as a retirement village, rather than whether land forms part of a retirement village, it is unnecessary to consider whether the Property is part of the retirement village or, more accurately, the complex that is the retirement village (see the definition of "retirement village" contained in s 5 of the Retirement Villages Act 1999). Moreover, I prefer not to express any view on that question, particularly as detailed submissions as to the construction and operation of the definition of "retirement village" were not made. 85Before leaving this topic, I should note that the declaration to be made is not an order directed to the Registrar-General, who has not been made a party to these proceedings. If and when the foreshadowed application for removal is made under s 24A(9) of the Retirement Villages Act 1999, it will be up to the Registrar-General to deal with such application in accordance with the terms of the legislation (including s 24A(11)). Relief 86Astra submitted that insofar as relief was sought in relation to by-laws 32 and 34, it should be refused on discretionary grounds. These grounds may be summarised as: (1)section 159 of the 1996 Act provided a more appropriate means of challenging the validity of the by-laws; (2)there has been inordinate delay in bringing proceedings to challenge the by-laws; and (3)the by-laws have for many years formed part of the basis upon which the retirement village has operated for the benefit of the residents, and declaring them invalid will cause detriment to the residents and to Astra. 87The difficulty with the submission based on s 159 of the 1996 Act is that by s 159(4), an application under the section may be made only by a person entitled to vote on the motion to make the by-law or the lessor of a leasehold strata scheme. Mr and Mrs Noon were entitled to vote on the motions to amend by-law 32 and to make by-law 34, but were not entitled to vote on the motion to make by-law 32 in 1986. Even if the plaintiffs, as the successors of Brian Noon, could invoke s 159 to challenge by-law 34 and the amendment to by-law 32, they could not make an application under the section in respect of the original by-law 32. I therefore do not think that the plaintiffs, in bringing to this Court the dispute over by-laws 32 and 34 (as well as the issue as to whether the Property is used as, or as part of, a retirement village), have eschewed an available alternative means of resolving the controversy. In my view, the proceedings were appropriately commenced in this Court. 88As to delay and detriment, it is correct that Brian Noon and Jennifer Noon purchased the Property in 1996 with knowledge of by-law 32, and must also be taken to have known of the amendment to that by-law and the making of by-law 34, in 2001. It is also true that, contrary to by-law 32, they were never given a sub-licence over the areas the subject of the by-law to permit them to use such areas. As a practical matter, they may not have been prevented from using those areas, but only in a very loose sense could it be said that they took the benefit of by-laws 32 and 34. 89The plaintiffs became aware that the validity of by-law 32 was questionable in 2010, following the decision of Bryson AJ in Bondi Beach Astra Retirement Village Pty Ltd v Gora (supra). The plaintiffs were at that time involved in other litigation with Astra about the contract entered into by their parents when they acquired the Property. On 19 August 2010, the Court of Appeal upheld the plaintiffs' appeal from a decision of Smart AJ (see Noon v Bondi Beach Astra Retirement Village Pty Ltd (supra)). Later in 2010, the plaintiffs faced further litigation (brought against them by C G Maloney Pty Ltd) about the same contract. The claim brought by C G Maloney Pty Ltd was dismissed by Rein J on 25 March 2011, and the appeal from that decision was dismissed by the Court of Appeal on 15 December 2011 (see C G Maloney Pty Ltd v Noon [2011] NSWCA 397). On the same day, the Court of Appeal gave its decision on the appeal from the decision of Bryson AJ in Bondi Beach Astra Retirement Village Pty Ltd v Gora (supra). That appeal was allowed in part, but the views of Bryson AJ concerning by-law 32 were untouched. Campbell JA noted that his Honour's finding that by-law 32 never operated to give any exclusive rights to Astra to diminish any rights of the lot owners with respect to common property was not disputed on the appeal (see Bondi Beach Astra Retirement Village Pty Ltd v Gora and Another [2011] NSWCA 396; (2011) 82 NSWLR 665 at [122]). It appears that the plaintiffs became aware of that decision of the Court of Appeal at about that time. 90The plaintiffs unsuccessfully moved for the repeal of by-laws 32 and 34 at the next Annual General Meeting of the Owners Corporation of Strata Plan No. 22422, held on 20 November 2012. These proceedings were commenced on 23 August 2013. 91Overall, I do not consider that the plaintiffs have been guilty of inordinate delay. It may be accepted that Astra has continued to operate the retirement village (as it has done for many years) on the basis that by-law 32 remains in force. Nevertheless, Astra has itself known, since at least early 2010, that the validity of the by-law was questionable, and has not taken any steps to have the matter clarified. 92Moreover, Astra has not shown, in my opinion, that any significant detriment would be suffered by it, or the residents of the retirement village, if the by-laws are declared to be invalid. Astra, for its part, would no longer be able to assert exclusive rights over a portion of the common property, and in practical terms may no longer be able to conduct its office on the ground floor of the building; and the owners of all lots (including, but not limited to, those who are residents of the retirement village) would have rights to use the common property. 93Plainly, in those circumstances, the Owners Corporation would need to consider numerous issues concerning the control, management and use of the common property, such as whether appropriate restrictions upon use should be specified, and whether any rights or privileges should be granted in favour of Astra to facilitate the operation of the retirement village. 94It is relevant to note here that the Owners Corporation itself has not sought to play an active role in the proceedings to protect the interests of lot owners against any perceived threat proposed by the relief sought by the plaintiffs. 95In all the circumstances, I do not think that the discretionary factors raised by Astra warrant the withholding of relief, whether in relation to by-laws 32 and 34, or otherwise. I consider that it is appropriate for the Court to make declarations that by-laws 32 and 34 are invalid and of no effect, and a declaration that the Property is not used as a retirement village under the Retirement Villages Act 1999, known as Bondi Beach Astra Retirement Village. 96As there may be some remaining questions as to consequential relief (including as to the taking of steps necessary to have by-laws 32 and 34 removed from the Real Property Act Register, or noted as being declared invalid and of no effect), I will at this stage merely direct the parties to bring in Short Minutes to give effect to these reasons. Costs should follow the event. Section 226(2) of the 1996 Act does not require the Court to order the plaintiffs to pay the defendants' costs, given that I have found that the proceedings were appropriately commenced in this Court (see above at [87]). ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 September 2014