The Owners Strata Plan 30695 v Stratacorp - [2005] NSWSC 405

CITATION:
The Owners Strata Plan 30695 v Stratacorp [2005] NSWSC 405

HEARING DATE(S): 7 April 2005

JUDGMENT DATE :

7 April 2005

JUDGMENT OF:
McDougall J at 1

DECISION:
See para [27] of judgment

CATCHWORDS:
PRACTICE AND PROCEDURE - interlocutory application - where plaintiff purportedly held extraordinary meeting appointing new strata managing agent - where plaintiff sought interlocutory orders against former strata managing agent providing for delivery up of documents and payment of trust moneys to it - where plaintiff gave notice under s 105 of the Strata Schemes Management Act - whether extraordinary general meeting validly called - balance of convenience - where alternative dispute mechanism available under Act and not utilised by plaintiff - no question of principle

LEGISLATION CITED:
Strata Schemes Management Act

CASES CITED:
Harry M Miller Attractions Pty Ltd v Actors and Announcers Equity Association of Australia [1970] 1 NSWLR 614
MacLeod & Anor v The Proprietors Strata Plan No 6544 [1980] 2 NSWLR 691
North Wind Pty Ltd v The Proprietors - Strata Plan No 3143 [1981] 2 NSWLR 809

PARTIES:
The Owners - Strata Plan 30695 (Plaintiff)
Stratacorp Management Services Pty Ltd (Defendant)

FILE NUMBER(S):
SC 2145/05

COUNSEL:
G A Moore (Plaintiff)
G A Sirtes (Defendant)

SOLICITORS:
Andreones Pty Limited (Plaintiff)
David LePage (Defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

McDOUGALL J

7 April 2005 Ex tempore (revised 26 April 2005)

STRATACORP MANAGEMENT SERVICES PTY LTD

JUDGMENT

1 HIS HONOUR: The plaintiff is an Owners Corporation under the Strata Schemes Management Act. On 1 July 1996 the plaintiff and the defendant entered into an agreement for the defendant to provide strata management services to the plaintiff. On 1 June 2000 the plaintiff and the defendant entered into a further agreement for the defendant to provide strata management services to the plaintiff.

2 The agreement of 1 June 2000 was for a period of three years and provided what might be called a three yearly rollover: ie, automatic extensions for further terms each of three years. It provided, among other things, for three months’ notice of intention to terminate to be given prior to the expiry of the original term or any rollover term.

3 On 28 February 2005 the plaintiff held, or purported to hold, an Extraordinary General Meeting. A resolution passed, or purported to have been passed, at that meeting dealt with "Change of Strata Manager". It read as follows:

RESOLVED

Strata Scheme No. 30695

(ii) That the termination and revocation have effect from the date of this meeting.

Strata Schemes Management Act

Act

(i) Dynamic Property Services Pty Limited be appointed as strata managing agent of Strata Scheme No. 30695;

(ii) the Owners Corporation delegate to Dynamic Property Services Pty Limited all the…

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: [2005] NSWSC 405
Decision Date: 7 April 2005

CaseChat Overview and Summary

The Owners Strata Plan 30695 brought a proceeding against Stratacorp, the former strata managing agent, seeking various interlocutory orders including the delivery of documents and the payment of trust moneys. The plaintiff claimed to have validly called an extraordinary general meeting which appointed a new strata managing agent. Stratacorp disputed the validity of the meeting and raised issues about the availability of alternative dispute resolution mechanisms under the Strata Schemes Management Act 2015 (NSW). The case came before the court on an interlocutory application.

The court was required to determine whether the extraordinary general meeting was validly called, and if so, whether the plaintiff was entitled to the interlocutory orders sought. The court also considered whether the plaintiff had complied with the statutory notice requirement under section 105 of the Strata Schemes Management Act 2015 (NSW). Additionally, the court evaluated the balance of convenience in favour of granting the interlocutory orders, despite the availability of alternative dispute resolution mechanisms under the Act.

The court held that the extraordinary general meeting was not validly called, as the plaintiff had failed to follow the statutory notice requirement under section 105 of the Act. Consequently, the plaintiff was not entitled to the interlocutory orders sought. The court also found that the plaintiff had not demonstrated a sufficient balance of convenience in favour of granting the orders, especially given the availability of alternative dispute resolution mechanisms. The court concluded that there was no question of principle involved in the case.

The court dismissed the plaintiff's application for interlocutory orders. The court made no orders as to costs.

Orders