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The Owners Corporation Strata Plan 70672 v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney

The Owners Corporation Strata Plan 70672 v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney

Case [2011] NSWSC 973 26 August 2011

Contract Formation

Breach of Contract

Implied Terms

Unconscionable Conduct

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Expert Evidence

Property Law

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Supreme Court

New South Wales

Medium Neutral Citation: The Owners Corporation Strata Plan 70672 v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2011] NSWSC 973
Hearing dates: 19 May 2011
Decision date: 26 August 2011
Jurisdiction: Equity Division
Before: Sackar J
Decision:
(1) For judgment see paragraph 144
(ii) Plaintiff to pay the costs of the proceedings

Catchwords: STRATA TITLE - Whether Strata Management Statement is binding on body corporate - construction of 28V(1)(a) of Strata Schemes Freehold Development Act 1973 (NSW) - registration of Strata Management Statement without special resolution of body corporate
CONTRACTS REVIEW ACT - Strata Management Statement is amenable for review under Contracts Review Act 1980 (NSW) - Construction of "unjust" under Contracts Review Act 1980 (NSW)
EQUITABLE UNCONSCIONABILITY - Special Disability required for Equitable Unconscionability -non-existence of body corporate cannot constitute Special Disability - whether expert can reapportion shared costs under Strata Management Statement - whether dispute can be relegated to expert will turn on terms of Strata Management Statement
Legislation Cited: Conveyancing Strata Titles Act 1961
Strata Schemes Management Act 1996
Strata Schemes (Freehold Development) Act 1973
Contracts Review Act 1980 (NSW)
Environmental Planning and Assessment Act 1979
Real Property Act (1900) (NSW)
Cases Cited: Idya Pty Ltd v Anastasiou [2008] NSWCA 102
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
Blomley v Ryan (1956) 99 CLR 362
The Owners Strata Plan 78102 v The Owners Strata Plan 78101 & Ors [2010] NSWC 1973
Legal & General Life of Australia v Hudson P/L (1985) 1 NSWLR 314
West v AGC (Advances) Ltd (1986) 5 NSWLR 610
Beneficial Finance Corporation Ltd v Karavas (1991) 23 NSWLR 256
ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Stern v McArthur (1988) 165 CLR
Tanwar Enterprises Pty Ltd v Couchi and Others (2003) 217 CLR 315
Blomley v Ryan (1956) 99 CLR 362
Legal and General Life Insurance of Australia Ltd v A Hudson (1985)
1 NSWLR 314
Texts Cited: Nil
Category: Principal judgment
Parties: Owners Corporation Strata Plan 70672 - plaintiff
The Trustees of the Roman Catholic Church for the Archdiocese of Sydney - defendant
Representation: G Sirtes SC, Ms J Chambers - plaintiff
I Jackman SC, Ms G Wright - defendant
DTA Lawyers - plaintiff
Corrs Chambers Westgarth - defendant

File Number(s): 2009/289761

Judgment

The plaintiff, the Owners Corporation Strata Plan 70672 ("the Owners"), has commenced proceedings by way of an amended statement of claim filed 5 October 2010. A number of matters in the amended statement of claim have been stayed pursuant to an order of Ball J made on 30 August 2010. These matters arise in paragraphs 16 to 27 of the amended statement of claim and relate to claims for breach of contract in respect of insurance monies etc.

His Honour however ordered that a number of issues be determined as separate questions.

Counsel for the plaintiff and the defendant have adopted slightly varying formulations of the separate questions to be determined…

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

AGLC: The Owners Corporation Strata Plan 70672 v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2011] NSWSC 973
Case: [2011] NSWSC 973
Decision Date: 26 August 2011

CaseChat Overview and Summary

The Owners Corporation Strata Plan 70672 sought a declaration that they were not bound by a Strata Management Statement (SMS), which had been entered into by the previous body corporate and the Roman Catholic Church for the Archdiocese of Sydney. The dispute arose under the Strata Schemes Freehold Development Act 1973 (NSW) and was heard in the Supreme Court of New South Wales. The Owners Corporation argued that the SMS was not binding because it had not been approved by a special resolution of the body corporate, as required by section 28V(1)(a) of the Act. They also sought a review of the SMS under the Contracts Review Act 1980 (NSW) on the basis that it was unjust. The Trustees of the Roman Catholic Church for the Archdiocese of Sydney argued that the SMS was binding and that the Owners Corporation was not entitled to relief under the Contracts Review Act.

The court considered whether the Strata Management Statement was binding on the Owners Corporation. The court found that the SMS was binding because it had been registered under section 28V of the Act, and registration had the effect of binding the Owners Corporation. The court also considered whether the SMS was amenable to review under the Contracts Review Act. The court found that the SMS was amenable to review because it was a contract within the meaning of the Act. However, the court found that the Owners Corporation was not entitled to relief under the Act because it had not established that the SMS was unjust. The court found that the Owners Corporation had not demonstrated a special disability, which is a requirement for equitable unconscionability. The court also found that the Owners Corporation could not rely on the non-existence of the body corporate as a special disability. Finally, the court found that the dispute could not be relegated to an expert to reapportion the shared costs under the SMS because the terms of the SMS did not allow for this.

The court made a declaration that the Strata Management Statement was binding on the Owners Corporation and that the Owners Corporation was not entitled to relief under the Contracts Review Act. The court did not make any orders regarding the apportionment of costs between the parties.

Orders