Owners Corporation of Strata Plan 71623 v Waldorf Apartments Hotel, The Entrance Pty Ltd [2015] NSWSC 1658

Supreme Court New South Wales

Medium Neutral Citation: Owners Corporation of Strata Plan 71623 v Waldorf Apartments Hotel, The Entrance Pty Ltd [2015] NSWSC 1658 Hearing dates: 16, 17, 18 and 19 June 2014; 3, 4 and 5 August 2015 Date of orders: 12 November 2015 Decision date: 12 November 2015 Jurisdiction: Equity Before: Hallen J Decision: (1) Grant leave to the Defendants to file second further amended Defence.

(2) Order that whole of the Statement of Claim be dismissed.

(3) Order that the Plaintiff pay the Defendants' costs of the proceedings.

(4) Direct that the Exhibits be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rule 31.16A and rule 33.10), and Practice Note No SC Gen 18 (Para 26). Catchwords: REAL PROPERTY – Strata scheme – Agreement for managing common property – CONTRACT – Where one of the Defendants provided cleaning and other services to the Plaintiff – Entitled to reimbursement of all reasonable and proper fees and expenses incurred in carrying out its duties under the contract – No dispute that it carried out duties – Breach alleged related to submission of claims in writing in order to be reimbursed its costs and expenses – Whether Manager of common property of strata scheme complied with contract in submitting claims

EQUITY – Remedies – RESTITUTION – Whether Plaintiff entitled to refund of all moneys reimbursed to the Defendant for work done and services provided to Plaintiff

PRACTICE & PROCEDURE – Application to amend further amended Defence to rely upon s 42 Real Property Act 1900 (NSW)

REAL PROPERTY – Different Defendant company registered proprietor of two different Lots in Strata Plan – Company at time of purchase of each Lot controlled by one or more directors on Executive Committee of Plaintiff – Indefeasibility – Whether in personam exception to indefeasibility arises – Whether registered proprietor knowingly received property transferred in breach of alleged fiduciary duty – Whether registered proprietor is a constructive trustee under the first limb of Barnes v Addy – In personam exception to indefeasibility does not extend to cases of a constructive trust under the first limb of Barnes v Addy at least in relation to proprietary claims Legislation Cited: Civil Procedure Act 2005 (NSW) Limitation Act 1969 (NSW) Real Property Act 1900 (NSW) Strata Schemes Management Act 1996 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345 Barnes v Addy (1874) LR 9 Ch App 244 Break Fast Investments Pty Ltd v Giannopoulos (also known as Giannopoulos) (No 5) [2011] NSWSC 1508 Community Association DP No 270180 v Arrow Asset Management Pty Ltd [2007] NSWSC 527 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 Kelly v Mina [2014] NSWCA 9 Re Steel & Conveyancing (Strata Titles) Act 1961 (1968) 88 WN (Pt 1) (NSW) 467 Super 1000 v Pacific General Securities [2008] NSWSC 1222; (2008) 221 FLR 427 Sze Tu v Lowe [2014] NSWCA 462 Waldorf Apartment Hotel v Owners Corporation SP 71623 [2009] NSWSC 882 Waldorf Apartment Hotel, The Entrance Pty Ltd v Owners Corp SP 71623 [2010] NSWCA 226 Category: Principal judgment Parties: Owners Corporation of Strata Plan 71623 (Plaintiff) Waldorf Apartments Hotel, The Entrance Pty Ltd (first Defendant) Avi Rubinstein (second Defendant) Rinbac Pty Ltd (third Defendant) Waldorf Australia Group Pty Limited (fourth Defendant) Frank Michael Wolf (fifth Defendant) Representation: Counsel: Dr E Peden; Ms J D Williams (Plaintiff) Mr M Izzo; Ms Z Heger (Defendants)