Khadivzad v The Owners – Strata Plan 53457 [2019] NSWSC 157

Supreme Court New South Wales

Medium Neutral Citation: Khadivzad v The Owners – Strata Plan 53457 [2019] NSWSC 157 Hearing dates: 31 January 2019 Date of orders: 26 February 2019 Decision date: 26 February 2019 Jurisdiction: Equity Before: Darke J Decision: Summons dismissed, with no order as to costs. Catchwords: LAND LAW – strata title – validity of by-laws – by-law granted exclusive rights to certain lot owners to use parts of common property for car parking – by-law purportedly repealed in 1999 by special resolution of Owners Corporation – no written consent obtained from lot owners concerned prior to repealing the by-law as required by Strata Schemes Management Act 1996 (NSW) ("SSM Act"), s 52(1)(a) – Change of By-Laws recorded on title within two years – proceedings commenced in 2018 to challenge validity of repeal – effect of SSM Act, s 52(3) – conclusive presumption after two years that all conditions and preliminary steps precedent to the making of a repealing by-law have been complied with and performed – requisite consent of owners is a condition or preliminary step precedent to the making of a repealing by-law – proceedings dismissed Legislation Cited: Strata Schemes (Freehold Development) Act 1973 (NSW), Part 4, Division 1 Strata Schemes Management Act 1996 (NSW), ss 42, 48, 51, 52, 162 Cases Cited: James v The Owners Strata Plan No 11478 (No 4) [2012] NSWSC 590 Category: Principal judgment Parties: Khosrow Khadivzad (Plaintiff) Strata Plan No 53457 (Defendant) Representation: Counsel: Mr M W Sneddon (Plaintiff)

Solicitors: Fox & Staniland Lawyers (Plaintiff) File Number(s): 2018/228417 Publication restriction: None