CITATION: REGIS TOWERS REAL ESTATE PTY LTD v THE OWNERS OF STRATA PLAN 56443 [2002] NSWCA 40 FILE NUMBER(S): CA 40192/01 HEARING DATE(S): 21 February 2002 JUDGMENT DATE:
21 February 2002PARTIES :
Regis Towers Real Estate Pty Ltd - Appellant
The Owners of Strata Plan 56443 - RespondentJUDGMENT OF: Sheller JA at 1; Stein JA at 6; Ipp AJA at 7
LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT
FILE NUMBER(S) :1611/01; 1612/01 LOWER COURT
JUDICIAL OFFICER :Santow J
COUNSEL: M D Broun QC/C Stomo - Appellant
J B Conomy - RespondentSOLICITORS: Broun Abrahams - Appellant
Blessington Judd - RespondentCATCHWORDS: CONVEYANCING - injunction - declaration - costs - utility of appeal - appeal dismissed DECISION: Appeal dismissed with costs.
CA 40192/01
ED 1611/01
ED 1612/0121 February 2002SHELLER JA
STEIN JA
IPP AJA
1 SHELLER JA: The appeal listed before the Court this morning is from a decision of Justice Santow which was given on 2 March 2001. The matter came before the Equity Division in the form of two summonses. The summonses were taken out by the appellant against three defendants. In both summonses, under the heading “Final Relief,” a declaration, an order in the nature of an injunction and costs were sought.
2 In the notices of appeal, it is said that no relief is now sought against the first and second defendants in each of the summonses, and that they have no interest in the appeal. The orders sought in the notices of appeal are that a question which was put to Justice Santow, and which is recorded in his reasons for judgment, should be answered “yes.” His Honour had answered the question in the negative.
3 It is now conceded on behalf of the appellant in each appeal that neither the declaration, which I observe was in a form that in the circumstances of this case the Court could never have made, nor the making of the order in the nature of an injunction would serve any purpose. Furthermore, it is conceded that the question which was put to his Honour and which his Honour answered, is not an appropriate question for the Court to answer. Also the written submissions filed on behalf of the respondent to this appeal proposed that we consider a different question.
4 All this demonstrates that this appeal has no utility whatever and should not be before the Court. Put another way, the appeal is incompetent. That being so, the only order that should be made, apart from the question of costs, is that the appeal be dismissed. Inevitably, it seems to me, the costs follow the event of the dismissal of the appeal.
5 There was some debate about the terms of an agreement which were relied upon at the hearing before Justice Santow. Given my opinion as to the utility of the appeal, I do not think the Court should pass upon the rights or wrongs of the construction of those provisions in the contract which were discussed. Accordingly, I would propose that the appeal be dismissed with costs.
6 STEIN JA: I agree.
7 IPP AJA: I agree.
8 SHELLER JA: The order of the Court will therefore be as I have announced it.
- AGLC
- Regis Towers Real Estate Pty Ltd v The Owners of Strata Plan 56443 [2002] NSWCA 40
- Case
- [2002] NSWCA 40
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the appellant was entitled to a declaration that it had a right to install and maintain air conditioning units on the common property, and whether the Supreme Court had erred in refusing to grant such a declaration and in granting an injunction restraining the appellant from interfering with the common property. The Court also considered the utility of the appeal given the circumstances.
The Court of Appeal, comprising Sheller and Stein JJA and Ipp AJA, dismissed the appeal. Their Honours reasoned that the appellant had not established a legal right to use the common property for its air conditioning units. The Court applied principles of property law and strata title legislation, emphasizing that the common property of a strata scheme is for the benefit of all lot owners and cannot be unilaterally appropriated by one owner for exclusive use without proper authorisation, such as a by-law or agreement. The Court found that the appellant's proposed use was not permitted under the relevant strata legislation and by-laws.
The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
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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