Sorose Pty Limited (In liquidation) v The Owners - Strata Plan 80638

[2013] NSWLEC 1215

Land and Environment Court

New South Wales

Medium Neutral Citation:	Sorose Pty Limited (In liquidation) v The Owners - Strata Plan 80638 and Ors [2013] NSWLEC 1215
Hearing dates:	15 October 2013
Decision date:	15 October 2013
Jurisdiction:	Class 2
Before:	Moore SC
Decision:	The time for extension of the development scheme is to be extended until 31 December 2018
Catchwords:	Extension of time for a development scheme
Legislation Cited:	Environmental Planning and Assessment Act 1979 Strata Schemes Freehold Development Act 1973
Cases Cited:	Moussa v The Owners Corporation of Strata Plan 65404 and Ors [2007] NSWLEC 807
Category:	Principal judgment
Parties:	Sorose Pty Limited (In liquidation) (Applicant) The Owners - Strata Plan 80638 (First Respondent) Pittwater Council (Second Respondent) Registrar-General of NSW (Third Respondent)
Representation:	Mr R Notley, barrister (Applicant) No appearance (all Respondents) Somerset Ryckmans (Applicant) David Le Page Solicitors (First Respondent) King & Wood Mallesons (Second Respondent) Registrar-General of NSW (Third Respondent)
File Number(s):	20488 of 2013

Judgment

1. SENIOR COMMISSIONER: The applicant in these proceedings is in liquidation and the matter comes before me concerning a strata scheme that had been being developed by the applicant at 12 Jubilee Avenue, Warriewood.

1. That development is now significantly advanced but is not yet completed. It was not completed at the time the company went into liquidation although a significant number of the units in what was to be a four building development have been sold and as part of a strata titling process are owned and/or occupied by independent parties who are, at least in part, members of the strata plan that is the respondent in these proceedings.

1. It is not necessary to go through a complete technical description of the development of the strata subdivisions or of what elements of it fall within the strata plan that is the respondent. It is sufficient to observe that, over the past several months since an interim extension of the strata contract was granted in June, shortly before what was then intended to be the completion date of the strata contract, a process has been undertaken that satisfies me that appropriate service (through a process of substituted service) has been made to inform all the relevant owners within the strata plan of that which was intended to be sought in these proceedings.

1. There has been, at no stage during the interlocutory proceedings, any appearance in court on behalf of the respondents and, this morning, the court officer has called the respondents before the Court four times without answer to the call. I am satisfied that it is appropriate to continue and deal with the matter.

1. What is sought is relief pursuant to s 28QA of the Strata Schemes Freehold Development Act 1973 to extend the conclusion time for the development scheme. That would be a process that would enable the undeveloped portion of the development to be concluded with time (as is discussed in the affidavit of Mr Benjamin Dillon, a director of a company called Hospital Management Partners Pty Ltd):

• to obtain the necessary development consent from Pittwater Council to some changes to the residual portion of the development that needs to be completed to enable it to be used for private hospital purposes; and
• then for the development itself to be constructed after those changes to the development consent have been achieved.

1. Mr Dillon's affidavit sets out a time within which the various steps that would be necessary for that process, including the construction of the final building, would be needed and the relief that is sought is, in effect, an extension of the existing strata development contract for a period of five years to enable that to occur.

1. I have also read in these proceedings two affidavits of Mr Robert Westgarth, who is an officer of the bank that is in effect the plaintiff in the proceedings, setting out the financing processes and the reasons that have led to the necessity for the application.

1. The present proceedings are ones that have been little explored in the Court in the past, the only relevant decision seeming to be that of Jagot J in Moussa v The Owners Corporation of Strata Plan 65404 and Ors [2007] NSWLEC 807.

1. I have had the advantage, in the written submissions of Mr Notley of counsel on behalf of the applicant in these proceedings, of the extract of the relevant portion of her Honour's decision at paras 134 to 138. I have, myself, independently read the entirety of her Honour's decision.

1. I am satisfied that consistent with what her Honour describes as the necessity to exercise what is otherwise a generally broad and unfettered power to have regard to all the circumstances giving rise to the necessity for the application.

1. Deferring the conclusion of the strata contract for the purposes of completion of the development is quite clearly, in my view, consistent with the objective of orderly economic development of land contained in s 5 of the Environmental Planning and Assessment Act 1979 and the proposal that is put (based on the evidence of Mr Dillon whose company is the prospective acquirer of the incomplete development and proposes to carry out completion of it) is an appropriate course to follow.

1. I put the proposition to Mr Notley this morning that I should set a date for the conclusion of the strata contract pursuant to s 28QA(1)(b) and that the conclusion of the development scheme should be 31 December 2018 - being modestly longer than the five years originally sought by the applicant in the proceedings. On instructions, Mr Notley has indicated to me that that is an acceptable outcome for the applicant. As a consequence of that I have concluded that the order of the Court is that the time for extension of the development scheme is to be extended until 31 December 2018.

Tim Moore

Senior Commissioner

Decision last updated: 14 November 2013