New South Wales
Court of Appeal
CITATION: Stolfa v Hempton [2010] NSWCA 218 HEARING DATE(S): 30 April 2010
JUDGMENT DATE:
2 September 2010JUDGMENT OF: Allsop P at 1; Basten JA at 46; Young JA at 47 DECISION: 1. Extend time for the filing and serving of an application for leave to appeal from the orders of the Equity Division made on 26 June 2009 and dispense with the need to file any document.
2. Grant leave to appeal.
3. Direct that the notice of appeal as filed stand as filed pursuant to the above leave.
4. Appeal dismissed with costs.CATCHWORDS: REAL PROPERTY – strata title – common property – whether work was enhancement or improvement of common property requiring special resolution under Strata Schemes Management Act 1996, s 65A – whether owners corporation authorised work – work constituted repairs and maintenance under s 62 – no special resolution required - REAL PROPERTY – strata title – common property – whether works to enclose a verandah constituting common property with a specific lot in building were authorised under s 65A – specific authorisation can be found in more than one special resolution – first resolution authorised enclosure supplemented by second resolution approving plans - EQUITY – estoppel – unavailability of estoppel – injunctive relief declined as a matter of discretion - DAMAGES – whether primary judge should have remitted question of damages in lieu of an injunction – case not run below – too late for referral of question LEGISLATION CITED: Interpretation Act 1987 (NSW) s 8(b)
Strata Schemes Management Act 1996 (NSW) ss 62, 65A
Supreme Court Act 1970 (NSW) s 101(2)(r)(i), (ii)
Uniform Civil Procedure Rules 2005 (NSW)CATEGORY: Principal judgment CASES CITED: Bracewell v Appleby [1975] Ch 408 at 419; 1 All ER 993
Jaggard v Sawyer [1995] 2 All ER 189
Stolfa v Owners Strata Plan No 4366 [2009] NSWSC 589
Wrotham Park Estate Company Ltd v Parkside Homes Ltd [1974] 2 All ER 321PARTIES: Veronica Stolfa (1st Appellant)
John Hempton (1st Respondent)
Rafaelle Stolfa (2nd Appellant)
Joanna Kalowski (2nd Respondent)
Stephen Hempton (3rd Respondent)
The Owners of Strata Plan No 4355 (4th Respondent)FILE NUMBER(S): CA 2009/298419 COUNSEL: Mr M Ashhurst SC, Mr S O'Brien (Appellants)
Mr P Gray SC, Ms P Koroknay (Respondents)SOLICITORS: W G McNally Jones Staff Lawyers (Appellants)
David Le Page (Respondents)
LOWER COURT JURISDICTION: Supreme Court - Equity Division LOWER COURT FILE NUMBER(S): 4087/2007 LOWER COURT JUDICIAL OFFICER: Brereton J LOWER COURT DATE OF DECISION: 26 June 2009 LOWER COURT MEDIUM NEUTRAL CITATION: Stolfa v Owners Strata Plan No 4366 [2009] NSWSC 589
2009/298419
Thursday 2 September 2010ALLSOP P
BASTEN JA
YOUNG JA
STOLFA v HEMPTON
Judgment
1 ALLSOP P: This appeal concerns a dispute among the owners of units in a Strata Plan at Rose Bay in Sydney. The building in question contains three units: Unit 1, the uppermost level at street level on Benelong Crescent, is owned by Mr John Hempton and Ms Joanna Kalowski;…
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Details
- AGLC
- Stolfa v Hempton [2010] NSWCA 218
- Case
- [2010] NSWCA 218
- Decision Date
CaseChat Overview and Summary
The appeal concerned a dispute between Mr Stolfa and the owners corporation of a strata scheme regarding works undertaken to enclose a verandah that formed part of the common property. Mr Stolfa contended that the enclosure of the verandah, which was attached to his specific lot, constituted an enhancement or improvement of common property requiring a special resolution under section 65A of the *Strata Schemes Management Act 1996* (NSW). The owners corporation argued that the works were authorised. The appeal was heard in the Court of Appeal of New South Wales by Allsop P, Basten and Young JJA.
The primary legal issues before the Court of Appeal were whether the enclosure of the verandah was an unauthorised improvement to common property, and if so, whether the owners corporation had nonetheless authorised the works through a special resolution or other means. The court also considered whether equitable estoppel was available to Mr Stolfa and whether damages should have been awarded in lieu of injunctive relief.
The Court of Appeal reasoned that the works constituted repairs and maintenance of the common property, which were authorised under section 62 of the *Strata Schemes Management Act 1996*, and therefore did not require a special resolution under section 65A. Furthermore, even if the works were considered an improvement, the court found that a special resolution authorising the enclosure, supplemented by a subsequent special resolution approving the plans, was sufficient to authorise the works. The court also determined that equitable estoppel was not available in the circumstances and that the primary judge had correctly declined to award injunctive relief as a matter of discretion. The court further held that it was too late to remit the question of damages in lieu of an injunction, as this case had not been run on that basis below.
The Court of Appeal extended time for the filing and serving of an application for leave to appeal, granted leave to appeal, and directed that the notice of appeal stand as filed. However, the appeal was ultimately dismissed with costs.
The primary legal issues before the Court of Appeal were whether the enclosure of the verandah was an unauthorised improvement to common property, and if so, whether the owners corporation had nonetheless authorised the works through a special resolution or other means. The court also considered whether equitable estoppel was available to Mr Stolfa and whether damages should have been awarded in lieu of injunctive relief.
The Court of Appeal reasoned that the works constituted repairs and maintenance of the common property, which were authorised under section 62 of the *Strata Schemes Management Act 1996*, and therefore did not require a special resolution under section 65A. Furthermore, even if the works were considered an improvement, the court found that a special resolution authorising the enclosure, supplemented by a subsequent special resolution approving the plans, was sufficient to authorise the works. The court also determined that equitable estoppel was not available in the circumstances and that the primary judge had correctly declined to award injunctive relief as a matter of discretion. The court further held that it was too late to remit the question of damages in lieu of an injunction, as this case had not been run on that basis below.
The Court of Appeal extended time for the filing and serving of an application for leave to appeal, granted leave to appeal, and directed that the notice of appeal stand as filed. However, the appeal was ultimately dismissed with costs.
Orders
Orders of the court
1. Extend time for the filing and serving of an application for leave to appeal from the orders of the Equity Division made on 26 June 2009 and dispense with the need to file any document.
2. Grant leave to appeal.
3. Direct that the notice of appeal as filed stand as filed pursuant to the above leave.
4. 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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