Community Association DP 270982 v Registrar-General for New South Wales [2018] NSWSC 225

Supreme Court New South Wales

Medium Neutral Citation: Community Association DP 270982 v Registrar-General for New South Wales [2018] NSWSC 225 Hearing dates: 27 February 2018 Date of orders: 27 February 2018 Decision date: 27 February 2018 Jurisdiction: Equity - Real Property List Before: Kunc J Decision: Orders made to terminate community scheme Catchwords: LAND LAW — Community title — Community scheme — Termination of scheme — Whether all interested parties have "made an application" where only some are plaintiffs and others have consented — Community Land Development Act 1989, s 70(1)(c) Legislation Cited: Community Land Development Act 1989 (NSW), ss 70, 71 Corporations Act 2001 (Cth) Statute Law (Miscellaneous Provisions) Act (No 2) (2004) (NSW) Cases Cited: Community Association DP 270212 v Registrar General for the State of New South Wales [2004] NSWSC 961; (2004) 62 NSWLR 25 IW v City of Perth (1997) 191 CLR 1; [1997] HCA 30 Category: Principal judgment Parties: Community Association DP270982 (First Plaintiff) Suzanne Ariane Larissa Donnellan (Second Plaintiff)

Registrar General of New South Wales (Defendant) Representation: Counsel: L A Walsh (Defendant)

Solicitors: S Donnellan (In person, Plaintiffs) Registrar General of New South Wales (Defendant) File Number(s): 2017/379808 Publication restriction: No

EX TEMPORE Judgment

Summary 1. This is an application under s 70 of the Community Land Development Act 1989 (NSW) (the "Act") for the termination of a community scheme in the Armidale area (the "Scheme"). All interested parties consent to the Scheme being terminated. 2. It was precisely this situation to which Palmer J referred in Community Association DP 270212 v Registrar General for the State of New South Wales [2004] NSWSC 961; (2004) 62 NSWLR 25 (the "Earlier Decision") in recommending an amendment to the Act to facilitate the making of such consent applications. However the legislative response to Palmer J's suggestion has not produced such a straightforward outcome. Nevertheless, the Court is satisfied that the Scheme should be terminated under s 70(1)(b) or (c). 3. The Scheme comprises four lots. The first plaintiff is the registered proprietor of Lot 1, being the community property. The second plaintiff, who appeared both for herself and for the first plaintiff, is the only member of the first plaintiff and the registered proprietor of Lots 2, 3 and 4 in the Scheme. 4. In accordance with s 71(2) of the Act, the Registrar General was joined as defendant to the proceedings and was represented by Ms L A Walsh of Counsel. The Registrar General neither consented to nor opposed the application, but assisted the Court by making of a number of helpful submissions, including as to the ultimate form of orders which should be made. 5. The only other interested party is the bank which holds a mortgage over the land comprising the Scheme. The bank, while not formally a plaintiff in the proceedings, has, by an affidavit sworn by its Head of Lending, indicated that it supports and consents to the present application.