Idya Pty Ltd v Anastasiou

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NEW SOUTH WALES COURT OF APPEAL

CITATION:
Idya Pty Ltd v Anastasiou [2008] NSWCA 102

FILE NUMBER(S):
40573 of 2007

HEARING DATE(S):
18/03/2008

JUDGMENT DATE:
22 May 2008

PARTIES:
Idya Pty Limited - Appellant
John Anastasiou - First Respondent/First Cross Appellant

Savva Anastasiou - Second Respondent/Second Cross Appellant

Third Respondents/Cross Appellants
Owners Strata Plan 69470
David Ronald Lever
Pamela Gay Lever
Michael James Ryan
Shaen Anne Ryan
David Ernest Montgomery
Gillian Gweneth Montgomery
Eldina Sahinovic
Michael Robert Layton
Anne Jacqueline Layton
Amin Gamil Shamia
Mona Shamia
Andrew Sean Wardle

JUDGMENT OF:
Mason P Beazley JA Handley AJA   

LOWER COURT JURISDICTION:
Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):
SC 6363 of 2005

LOWER COURT JUDICIAL OFFICER:
Nicholas J

LOWER COURT DATE OF DECISION:
22 June 2007

LOWER COURT MEDIUM NEUTRAL CITATION:
[2007] NSWSC 634

COUNSEL:
S White SC and P Bolster - Appellant
G Moore - First and Second Respondents
C Birch SC - Third Respondent

SOLICITORS:
Cumberland Frank Commercial Lawyers - Appellant
L P Alidenes & Company - First and Second Respondents
Roper & Steggal - Third Respondents

CATCHWORDS:
STRATA TITLES – Strata Schemes (Freehold Development) Act 1973 – Strata Management Statement – restrictions on use by owners of lots – whether enforceable against tenant.

LEGISLATION CITED:
Australian Capital Territory (Planning and Land Management) Act 1988 (Cth)
Strata Schemes Management Act 1996
Strata Schemes (Freehold Development) Act 1973

CASES CITED:
A v State of New South Wales & Ors; Floros v A; State of New South Wales v A [2005] NSWCA 292; 63 NSWLR 681
Adamastos Shipping Co Ltd v Anglo-Saxon Petroleum Co Ltd [1959] AC 133
Atkin v Rose [1923] 1 Ch 522
Attorney-General (ACT) v Commonwealth of Australia (1990) 95 ALR 739; (1990) 26 FCR 82
Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99
Attorney-General for the ACT v Commonwealth (1990) 26 FCR 82,91
Barton v Reed [1932] 1 Ch 362
Blair v Curran [1939] HCA 23; (1939) 62 CLR 464
Charbel CJ Pty Limited v Owners Corporation Strata Plan 69470 [2005] NSWCA 241
Cheall v Association of Professional Executive Clerical and Computer Staff [1983] 2 AC 180
Codelfa Construction Pty Limited v State Rail Authority [1982] HCA 24, 149 CLR 337
Commissioners of Taxation v Trustees of St Marks Glebe [1902] AC 416
Council of the City of Newcastle v Royal Newcastle Hospital [1957] HCA 15; (1957) 96 CLR 493
Council of the City of Newcastle v Royal Newcastle Hospital [1959] HCA 14; (1959) 100 CLR 1
D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Federation Insurance Limited v Wasson [1987] HCA 34
Garcia v National Australia Bank Ltd [1998] HCA 48
Heimann v Commonwealth (1938) 38 SR (NSW) 691
Hide & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310
Knowles v Newcastle Corporation [1909] HCA 72; (1909) 9 CLR 534
Mannai Investment Co Ltd v Eagle…

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Details
Case
[2008] NSWCA 102
Decision Date

CaseChat Overview and Summary

This case concerned an appeal and cross-appeal before the New South Wales Court of Appeal, presided over by Mason P, Beazley JA, and Handley AJA. The dispute involved Idya Pty Ltd (the appellant) and Anastasiou (the respondents), concerning the enforceability of restrictions on the use of strata lots against a tenant. The core of the disagreement revolved around whether the owners of certain retail shops were in contravention of a strata management statement by permitting their lessees to operate a fast-food outlet.

The Court was required to determine the precise meaning and application of clause 19.1(a) of the strata management statement, specifically the second sentence. The central legal issue was whether this clause prohibited the owners of the retail shops from permitting those premises to be used by any person as a fast-food outlet, and consequently, whether the owners were liable for injunctive relief if they allowed their lessees to operate such a business in contravention of their lease terms.

The Court acknowledged the difficulty in ascertaining a case's ratio decidendi, referencing High Court authorities on the binding nature of judicial reasoning. It clarified that statements made in argument or as a consequence of a particular construction, rather than essential to the decision on a point of law, are not binding. The Court then focused on the meaning of the word "use" within the context of clause 19.1(a), noting its wide import and dependence on context, as illustrated by previous judicial pronouncements. The Court's ultimate determination hinged on its construction of the relevant clause and the concept of "use" in relation to the owners' obligations.

The appeal and cross-appeal were dismissed with costs awarded in favour of the respondents and cross-respondents. Although the Court agreed on the orders, the reasons for reaching that outcome differed among the judges.

Orders

Orders of the court

The appeal and cross appeal should be dismissed with costs in favour of the respondents and the cross respondents as the case may be. (The Court agreed as to orders, but for different reasons)

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is not always easy, however, to determine the ratio decidendi of a case. In Federation Insurance Limited v Wasson [1987] HCA 34; (1987) 163 CLR 303, the High Court affirmed the decision of this Court: Wasson v Commercial & General Acceptance Ltd (1985) 2 NSWLR 206, where McHugh J, at 228, pointed out that “only the reasons for the decision in a case are binding” (original emphasis). In Garcia v National Australia Bank Ltd [1998] HCA 48; 194 CLR 395, Kirby J stated at [56] that“It is fundamental to the ascertainment of the binding rule of a judicial decision that it should be derived from (1) the reasons of the judges agreeing in the order disposing of the proceedings; (2) upon a matter in issue in the proceedings; (3) upon which a decision is necessary to arrive at that order.” His Honour reiterated this approach in D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1, emphasising that the ratio requires “identification of the ‘matter which it was necessary to decide and which was actually decided’”: see Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 at 532 per Dixon J. I do not understand the statement by Tobias JA in Charbel at [38] that the owners of the Retail Shops were prohibited from permitting those premises to be used as fast food outlets to be part of the ratio decidendi of that case. Rather, it reflected Tobias JA’s response to matters that had been raised in argument. From his Honour’s viewpoint, the right in the Owners Corporation to require the appellant to cease using the premises as a fast food outlet was a consequence that flowed from the construction he had given to the phrase “owners of the Retail Shops” in the second sentence of cl 19.1(a). That statement was not an essential part of his reasoning as to the meaning of the phrase “owners of the Retail Shops” in the second sentence of cl 19.1(a), nor was it necessary for the disposition of the matter before this Court. Accordingly, it is for this Court to determine the question whether the second sentence of cl 19.1(a) prohibits the owners of the Retail Shops from permitting those premises to be used by any person as a fast food outlet. Having stated this as being the matter that calls for determination, the real question in this case is whether, by permitting the lessees from using the Shops as an Oporto restaurant in contravention of the terms of the lease, the owners are thereby in contravention of cl 19.1(a) so as to be susceptible to injunctive relief at the suit of the Owners Corporation. The word “use” bears various shades of meaning. The meaning of the word in the context of various taxing or rating statutes has been the subject of frequent judicial consideration. In Council of the City of Newcastle v Royal Newcastle Hospital [1957] HCA 15; (1957) 96 CLR 493, Taylor J, in a passage that is often repeated, stated, at 515, “The word ‘used’ is, of course, a word of wide import and its meaning in any particular case will depend to a great extent upon the context in which it is employed.”There was an appeal to the Privy Council. Lord Denning delivered the judgment of their Lordships: Council of the City of Newcastle v Royal Newcastle Hospital [1959] HCA 14; (1959) 100 CLR 1. Whilst not expressly endorsing the statement of Taylor J, it is apparent from his Lordship’s judgment that the word “use” had a wide meaning and its actual meaning depended upon the particular context.

Ratio Decidendi

Legal Principle Established

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