The Owners - Strata Plan No 70798 v Bakkante Constructions Pty Ltd [2014] NSWCA 410

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: The Owners - Strata Plan No 70798 v Bakkante Constructions Pty Ltd [2014] NSWCA 410 Hearing dates: 8 and 9 October 2014 Decision date: 05 December 2014 Before: Basten JA at [1]; Barrett JA at [13]; Leeming JA at [16] Decision: 1. To the extent that, by order entered on 22 July 2013, the trial judge answered separate question (e), "is the consequence of (a)-(d) that the proceedings must be dismissed", "Yes"; set aside the answer and in place thereof answer the question: "The initiation of legal proceedings in contravention of s 80D(1) of the Strata Schemes Management Act 1996 does not necessitate that the proceedings be dismissed, but on the facts of this case, they should be dismissed." 2. With respect to the orders entered on 18 June 2014, set aside order (3) and in place thereof order that the owners corporation pay 80% of the costs of Bakkante Constructions and Dr Zankin, other than the costs of the hearing on 4 March 2013. 3. Otherwise dismiss the amended notice of appeal filed on 11 June 2014. 4. Order that the appellant pay 80% of the costs of both respondents in this Court. [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: STRATA TITLE - owners corporation commenced proceedings without approval of general meeting - whether exemption applied - Strata Schemes Management Regulation 2010 (NSW) reg 15, construed - proceedings not approved by general meeting prior to hearing - effect of non-compliance with Strata Schemes Management Act 1996 (NSW), s 80D - proceedings dismissed