MACKIE -v- HENDERSON [2011] WASC 197
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 197 | |
| Case No: | GDA:23/2010 | 8 AUGUST 2011 | |
| Coram: | EDELMAN J | 19/08/11 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal on ground 1 allowed Appeal dismissed on ground 1 Application for leave to appeal refused on grounds 2 - 8 Application for leave to cross-appeal allowed Cross-appeal allowed | ||
| A | |||
| PDF Version |
| Parties: | GRAHAM MACKIE GRAEME HENDERSON KANDY HENDERSON |
Catchwords: | Strata titles Bylaws Whether invalid Whether should be repealed Whether bylaws imposing height restrictions are inconsistent with the nature of surveystrata schemes under the Strata Titles Act Whether the SAT should have invalidated and repealed bylaws for procedural deficiencies and errors Scope of discretion of the SAT Effect of agreement by proprietors of both lots when enacting bylaws |
Legislation: | Strata Titles Act 1985 (WA) Strata Titles General Regulations 1996 (WA) |
Case References: | Byrnes v Kendle [2011] HCA 26 Casuarina Rec Club Pty Ltd v The Owners Strata Plan No 77971 [2011] NSWCA 159 Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 Commissioner of Taxation v Anstis [2010] HCA 40; (2010) 241 CLR 443 House v The King [1936] HCA 40; (1936) 55 CLR 499 Mackie and Henderson [2010] WASAT 144 Osland v Secretary to the Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320 Singh v Commonwealth of Australia [2004] HCA 43; (2004) 222 CLR 322 Sovar v Henry Lane Pty Ltd [1967] HCA 31; (1967) 116 CLR 397 Sydney Diagnostic Services Pty Ltd v Hamlena Pty Ltd (1991) 5 BPR 11,432 White v Betalli [2006] NSWSC 537; (2006) 66 NSWLR 690 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Applicant
AND
GRAEME HENDERSON
KANDY HENDERSON
Respondents
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : MR T CAREY (MEMBER)
Citation : MACKIE and HENDERSON [2010] WASAT 144
File No : CC 139 of 2010
Catchwords:
Strata titles - Bylaws - Whether invalid - Whether should be repealed - Whether bylaws imposing height restrictions are inconsistent with the nature of surveystrata schemes under the Strata Titles Act - Whether the SAT should have invalidated and repealed bylaws for procedural deficiencies and errors - Scope of discretion of the SAT - Effect of agreement by proprietors of both lots when enacting bylaws
(Page 2)
Legislation:
Strata Titles Act 1985 (WA)
Strata Titles General Regulations 1996 (WA)
Result:
Application for leave to appeal on ground 1 allowed
Appeal dismissed on ground 1
Application for leave to appeal refused on grounds 2 - 8
Application for leave to cross-appeal allowed
Cross-appeal allowed
Category: A
Representation:
Counsel:
Applicant : Mr M…
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Details
- AGLC
- Mackie v Henderson [2011] WASC 197
- Case
- [2011] WASC 197
- Decision Date
CaseChat Overview and Summary
The case of Mackie v Henderson involved a dispute regarding the validity of strata title bylaws that imposed height restrictions. The applicants, Mackie and Henderson, sought to challenge the bylaws enacted by the body corporate for their strata scheme, arguing that they were inconsistent with the nature of survey-strata schemes under the Strata Titles Act. The applicants further contended that the Strata Titles Tribunal (STT) should have invalidated and repealed the bylaws due to procedural deficiencies and errors. The court was tasked with determining the legality of the bylaws and the scope of the tribunal's discretion in such matters.
The central legal issue was whether the bylaws imposing height restrictions were inconsistent with the nature of survey-strata schemes as outlined in the Strata Titles Act. The court had to consider whether the bylaws were invalid and, if so, whether the tribunal should have invalidated and repealed them for procedural deficiencies and errors. Additionally, the court examined the effect of the agreement by the proprietors of both lots when enacting the bylaws.
In its reasoning, the court found that the bylaws were not inconsistent with the nature of survey-strata schemes and were therefore valid. Regarding the tribunal's discretion, the court held that the tribunal did not have the authority to invalidate and repeal bylaws for procedural deficiencies and errors. The agreement by the proprietors of both lots when enacting the bylaws was also considered significant in the outcome. As a result, the court dismissed the appeal on the first ground, refused the application for leave to appeal on grounds 2-8, allowed the application for leave to cross-appeal, and allowed the cross-appeal.
The final orders of the court were that the application for leave to appeal on the first ground was allowed, the appeal was dismissed on that ground, the application for leave to appeal on grounds 2-8 was refused, the application for leave to cross-appeal was allowed, and the cross-appeal was allowed.
The central legal issue was whether the bylaws imposing height restrictions were inconsistent with the nature of survey-strata schemes as outlined in the Strata Titles Act. The court had to consider whether the bylaws were invalid and, if so, whether the tribunal should have invalidated and repealed them for procedural deficiencies and errors. Additionally, the court examined the effect of the agreement by the proprietors of both lots when enacting the bylaws.
In its reasoning, the court found that the bylaws were not inconsistent with the nature of survey-strata schemes and were therefore valid. Regarding the tribunal's discretion, the court held that the tribunal did not have the authority to invalidate and repeal bylaws for procedural deficiencies and errors. The agreement by the proprietors of both lots when enacting the bylaws was also considered significant in the outcome. As a result, the court dismissed the appeal on the first ground, refused the application for leave to appeal on grounds 2-8, allowed the application for leave to cross-appeal, and allowed the cross-appeal.
The final orders of the court were that the application for leave to appeal on the first ground was allowed, the appeal was dismissed on that ground, the application for leave to appeal on grounds 2-8 was refused, the application for leave to cross-appeal was allowed, and the cross-appeal was allowed.
Orders
Orders of the court
Application for leave to appeal on ground 1 allowed
Appeal dismissed on ground 1
Application for leave to appeal refused on grounds 2 - 8
Application for leave to cross-appeal allowed
Cross-appeal allowed
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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