Gold, P.I. v The Proprietors Units Plan No 52

[1992] FCA 822

IN THE FEDERAL COURT OF AUSTRALIA	)
1
AUSTRALIAN CAPITAL TERRITORY	1 No. ACT G24 of 1992
1
DISTRICT REGISTRY	) )
GENERAL DIVISION	1

ON APPEAL FROM THE SUPREME COURT

OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN : PATRICIA ISOBEL GOLD

Appellant

AND : THE PROPRIETORS-

UNITS PLAN NO. 52

Respondent

MINUTE OF ORDER

T3E COURT	Neaves, Miles and O'Loughlin JJ.
DATE OF ORDER :	6 November 1992
WERE MADE	Canberra

TFIE COURT ORDERS THAT -

1.   The appeal be dismissed without prejudice to the right of the appellant, should she be so advised, to seek to litigate in other proceedings the questlon whether the decision of the committee of the respondent made on 11 14arch 1991 to appoint Gregory John Steinwedel and Jennif er Margaret Steinwedel trading as Canberra Units Plan Services as Kanaging Agent of the respondent is invalid.

Order 36 of the Federal Court Rules.

2.    The appellant pay the respondent's costs of the appeal.

Note:	Settlement and entry of orders is dealt with in
IN THE FEDERAL COURT OF AUSTRALIA	) 1
AUSTRALIAN CAPITAL TERRITORY	1  NO. ACT G24 of 1992
1
DISTRICT REGISTRY	1
1
GZNERAL DIVISION	1

ON APPEAL FROM THE SUPREME COURT

OF THE AUSTRALIAN CAPITAZ, TERRITORY

BETWEEN : PATRICIA ISOBEL GOLD

Appellant

AND : THE PROPRIETORS-

UNITS PLAN No. 52

Respondent

CORN4	Neaves, Miles and O'Loughlin JJ
DATE	6 November 1992

EX TEMPORE JUDGMENT

THE COURT : Patricia Isobel Gold has sought to appeal as of right from the order made by Higgins J.(sitting as a judge of the Supreme Court of the Australian Capital

Territory) on 1 5 May 1992 dismissing a summons filed in that	Court on her behalf. The question has been raised whether
the order was an interlocutory order, thus requiring leave to appeal. We have, however, found it unnecessary to resolve that question.
We are of the opinion that the primary ludge was correct in summarily dlsposlng of the summons insofar as it concerned the appointment, m 1985, of acorporate manager

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of the corporate body. We do so for the reason that that	I
!
appointment ceased to have effect in 1991, some 12 months	I
before the institution of the proceedings in the Supreme Court. We, of course, do not suggest any moral delinquency on the part of Mrs Gold, but it would be a most unfair burden on the corporation to permit that question to be litigated. In that sense, the summons was oppressive. We add that we express that view in the strongest possible terms.
A very different question arises, however, in relation to the second of the orders sought in the summons. Neither the parties nor his Honour gave that question separate and independent attention. We note that, although the question was raised in the summons- which was itself an inappropriate procedure- no affidavit evidence was filed in
support of the proposition that the resolution of the committee made on 11 March 1991 was invalid.
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t .
We do not regard his Honour as having finally determined that question and, were it not for the	difficulties arising from the inappropriateness of the

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procedure adopted by the applicant (appellant), it may well	!
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have been appropriate to allow the appeal and remit that question to the Supreme Court. We should add that we have
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found it unnecessary, for the purposes of these reasons and	'~
I
il the absence of full argument, to express, or indeed to	t
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form, any view as to the correct meaning and effect of s.113 of the Unit Titles Act 1970 (A.C.T.).
However, as we do not regard the present proceedings as an appropriate vehicle in which to have that question determined, we do not propose to follow that course. We, therefore, propose to dismiss the appeal, without prejudice to the right of the applicant (appellant) to seek to litigate the question in other proceedings should she be so advised. We stress, however, that if further proceedings are to be instituted, the originating process should be carefully drawn and be supported by proper affidavit material. We cannot stress that point too strongly.
The appeal is dismissed. The appellant must pay the respondent's costs of the appeal.

I certify that this and the preceding 2 pages are a true copy of the Reasons for

Judgment herein of the Court.

Associate L-4-- Dated : 10 November 1992

Counsel for the appellant:	14.r H Selby
Solicitors for the appellant:	Meyer Boettcher & Clapham
Counsel for the respondent:	Mr C Whitelaw
Solicitors for the respondent:	Gallens Crowley & Chamberlain
Date of hearing and judgment:	6 November 1992