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Quest Rose Hill Pty Ltd v White

Quest Rose Hill Pty Ltd v White

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Case Copied 24 August 2010 51 min read

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NEW SOUTH WALES SUPREME COURT

CITATION:
Quest Rose Hill Pty Ltd v White [2010] NSWSC 939
This decision has been amended. Please see the end of the judgment for a list of the amendments.

JURISDICTION:
Equity

FILE NUMBER(S):
2009/288819

HEARING DATE(S):
21 June 2010

JUDGMENT DATE:
24 August 2010

PARTIES:
Quest Rose Hill Pty Ltd (Plaintiff)
Bernard Keith White (First Defendant)
Stuart Gerald Maile (Second Defendant)
Tracey Alison Maile (Third Defendant)
Boban Kocoski (Fourth Defendant)
Davone Inthachanh (Fifth Defendant)
Peter Nicholas Viler (Sixth Defendant)
Frederick Charles Naylor (Seventh Defendant)
Lynette Gail Naylor (Eighth Defendant)

JUDGMENT OF:
Ward J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable

COUNSEL:
J Van Aalst (Plaintiff)
P W Gray SC with P Koroknay (First to Eighth Defendants)

SOLICITORS:
Lodhia Lawyers (Plaintiff)
David Le Page Solicitor (First to Eighth Defendants)

CATCHWORDS:
STRATA SCHEMES MANAGEMENT ACT
validity of irrevocable power of attorney granted to lessee
lease required lot owners to vote in accordance with reasonable directions of lessee and granted lessee an irrevocable power of attorney
lessee under obligation to exercise power of attorney with good faith
HELD
power of attorney not void for illegality nor contrary to public policy
does not constitute an abandonment or abdication of voting rights inconsistent with the Strata Schemes Management Act 1996
CONTRACTS REVIEW ACT
whether terms of lease unjust for purposes of the Contracts Review Act 1980
HELD
s 7 of the Contracts Review Act not enlivened
distinction to be drawn between a contract which amounts to an abuse of rights or process and one which could if exercised in a particular way amount to an abuse of rights or process

LEGISLATION CITED:
Contracts Review Act 1980 (NSW)
Conveyancing Act 1919 (NSW)
Corporations Act (2001) (Cth)
Home Building Act 1989 (NSW)
Powers of Attorney Act 2003 (NSW)
Strata Schemes Management Act 1996 (NSW)
Strata Schemes Management Regulation 2005 (NSW)
Strata Management Legislation Amendments Act 2008 (NSW)
Strata Management Legislation Amendments Bill 2008 (NSW)

CASES CITED:
Agricultural and Rural Finance Pty Ltd & Anor v John Edward Atkinson & Ors [2010] NSWSC 635
Ainsworth v Criminal Justice Commn (Qld) [1992] HCA 10; (1992) 175 CLR 564
Chan v Cresdon Pty Ltd [1989] HCA 63; (1989) 168 CLR 242
Clerk v Laurie (1857) 2 H&N 199; 157 ER 83
Commonwealth of Australia v BIS Cleanaway Limited [2007] NSWSC 1075
Cordiant Communications (Australia) Pty Ltd v The Communications Group
Dwyer v Herman (1881) 2 LR (NSW) L 280
Easy Buy International Pty Ltd v Macquarie Goodman Property Services Pty Ltd [2006] NSWSC 148; (2006) 13 BPR 24,655
Elders Rural Finance Ltd v Smith (1996) 41 NSWLR 296
Eventang Development (Pyrmont) Pty Ltd v Owners Strata Plan 51573 [2001] NSWSC 452
Frith v Frith [1906] AC 254
Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421
Gaussen v Morton (1830) 10 B & C 731; 109 ER 622
Gill v Wright [1964-5] NSWR 1500
Hanson v…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWSC 939
Decision Date: 24 August 2010

CaseChat Overview and Summary

The matter of Quest Rose Hill Pty Ltd v White involved a dispute concerning the validity of an irrevocable power of attorney granted to a lessee under a strata scheme. The case was heard in the Supreme Court of Queensland. The primary issue for the court to determine was whether the power of attorney was void for illegality or contrary to public policy, and whether it constituted an abandonment or abdication of voting rights inconsistent with the Strata Schemes Management Act 1996. Additionally, the court examined whether the terms of the lease were unjust for the purposes of the Contracts Review Act 1980.

The court considered the nature of the power of attorney and the obligations placed upon the lessee to exercise it in good faith. It was held that the power of attorney was not void for illegality or contrary to public policy. Furthermore, the court found that it did not constitute an abandonment or abdication of voting rights, as it was consistent with the Strata Schemes Management Act. The court distinguished between a contract that amounted to an abuse of rights or process and one that could, if exercised in a particular way, amount to an abuse of rights or process. It found that section 7 of the Contracts Review Act was not enlivened in this case.

In summary, the Supreme Court of Queensland found that the irrevocable power of attorney granted to the lessee was valid and not contrary to public policy. It also found that the terms of the lease were not unjust under the Contracts Review Act. The court's decision provides clarity on the validity of such powers of attorney in the context of strata schemes and the application of the Contracts Review Act.

Orders