In the Application of the Owner’s Corporation No 1556
[2015] ACTSC 249
•24 August 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the Application of the Owner’s Corporation No 1556 |
Citation: | [2015] ACTSC 249 |
Hearing Date(s): | 24 August 2015 |
DecisionDate: | 24 August 2015 |
Before: | Robinson AJ |
Decision: | See [10]. |
Category: | Principal Judgment |
Catchwords: | REAL PROPERTY - Application for cancellation of units plan |
Legislation Cited: | Unit Titles Act 2001 (ACT) s 161A |
Parties: | The Owners – Units Plan No 1556 (Applicant) Keytrim Pty Ltd (Interested Party) |
Representation: | Counsel Mr R Arthur (Applicant) Mr I Meagher (Interested Party) |
| Solicitors Clayton Utz (Applicant) | |
File Number(s): | SC 210 of 2015 |
ROBINSON AJ:
Units Plan number 1556 was registered over land at Deakin in 1996. Originally, Cypcill Pty Ltd held all 18 units of what I will call a “mixed-development”. As time went on, Cypcill Pty Ltd retained only 1 unit.
In recent times a proposal has been put forward on the basis that it was desirable to subdivide the land into 3 Crown Leases.
The commercial wisdom of the proposal is, of course, not at issue in these proceedings.
On 25 June 2014, all members of the owner’s corporation unanimously resolved to apply for the cancelation of Units Plan number 1556 for the purpose of subdividing the land and registering 3 new Crown Leases and a new Units Plan. That plan is in respect of one of those new Crown Leases where members of the newly created Units Plan would necessarily have to share services between them.
Section 161A of the Unit Titles Act 2001 provides that an owner’s corporation may apply to the Supreme Court for an order authorising the cancellation of a units plan. The Supreme Court may make such an order if it is satisfied that it is just and equitable to make the order having regard to “the interests of everyone with interests in the units.” Below, I will set out what those interests are in the present proceedings.
I have been taken through the affidavits read on the Application which I perused before coming on to the bench, I have had regard to the attached documentation. I am satisfied that it is just and equitable to make the order sought subject to compliance with the directions below.
I have previously recorded that all members of Units Plan 1556 are unanimously in favour of the application. It then becomes necessary to determine the position of all other entities potentially effected by the cancellation. In this respect I record that by letter dated 21 August 2015, Susan Messer of the ACT Environment and Planning Department has set out the conditions which will satisfy that Department in respect of the proposed use of the land in the future. After setting out a number of conditions she writes, relevantly, that “these conditions have been complied with or will be complied with on implementation of the proposed orders to be made by the Supreme Court”.
I turn to the position of the mortgagees interested in the current titles. Each of those mortgagees have been contacted and have given their consent to the proposed procedure under the cancelation. It is also necessary to have regard to the lessees of the property. Again, each has been satisfied with the proposed arrangements. Finally, there are a number of miscellaneous interests such as easements, encroachments and special privileges. I am satisfied that these maters have been attended to for the purposes of the cancellation.
Accordingly, subject to the directions which will be included in the orders a cancellation order will be made pursuant to s 161A(2).
Orders
Subject to the Court’s directions to the Registrar General which will be included in the formal orders of the Court, I make the following orders:
(a)I grant leave to amend the originating application in the form of an amended originating application placed on the file in this matter on 21 August 2015.
(b)I dispense with the service of the amended application on any entity.
(c)Pursuant to s161A(2) of the Unit Titles Act 2001, I order the Units Plan number 1556 be cancelled. This order shall remain in force for 12 months.
(d)I grant liberty to apply for the working out of these orders or directions.
| I certify that the preceding ten [10] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Robinson. Associate: Date: |
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