Trentelman v The Owners - Strata Plan No 76700

[2021] NSWCA 242

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Trentelman v The Owners – Strata Plan No 76700 [2021] NSWCA 242

Hearing dates:

7, 8 July 2021

Decision date:

13 October 2021

Before:

Bathurst CJ at [1];
Bell P at [170];
Leeming JA at [171]

Decision:

1 Trentelman v The Owners – Strata Plan No 76700; Proceedings No 2021/102010

(1)   Appeal dismissed.

(2)   Order the appellant pay the respondent’s costs of the appeal.

2 Trentelman v The Owners – Strata Plan No 76700; Proceedings No 2021/101998

(1)   Appeal dismissed.

(2)   Order the appellant pay the respondent’s costs of the appeal.

Catchwords:

ESTOPPEL – proprietary estoppel – encouragement – nature of promise – strata title – promise of easement – whether representation sufficiently clear – where representation made at general meeting – where representation did not define the interest in property the representee was expected to receive – where further documentation was required to be executed to give effect to the representation

ESTOPPEL – proprietary estoppel – encouragement – detrimental reliance – strata title – promise of easement – whether reliance was that of the owners corporation – Strata Schemes Management Act 1996 (NSW) s 21(2) – Strata Schemes Management Act 2015 (NSW) ss 8, 254

ESTOPPEL – proprietary estoppel – encouragement – detrimental reliance – strata title – promise of easement – whether the evidence indicated that the representation was such that the conduct of the lot holders was sufficiently influenced by the representation

Legislation Cited:

Body Corporate and Community Management Act 1997 (Qld)

Corporations Act 2001 (Cth)

Real Property Act 1900 (NSW)

Strata Schemes Development Act 2015 (NSW)

Strata Schemes (Freehold Development) Act 1973 (NSW)

Strata Schemes Management Act 1996 (NSW)

Strata Schemes Management Act 2015 (NSW)

Strata Titles Act 1973 (NSW)

Strata Titles Act 1988 (SA)

Strata Titles Act 1998 (Tas)

Subdivision Act 1988 (Vic)

Uniform Civil Procedure Rules

Cases Cited:

Amalgamated Investment & Property Co Ltd (in liq) v Texas Commercial International Bank Ltd [1982] QB 84

Ashton v Pratt (2015) 88 NSWLR 281; [2015] NSWCA 12

Ayerst v C&K (Construction) Ltd [1976] AC 167

Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59

Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566; [1998] HCA 59

Boyd v Thorn (2017) 96 NSWLR 390; [2017] NSWCA 210

Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185; [2014] HCA 36

Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25

Carre v Owners Corporation – Strata Plan 53020 (2003) 58 NSWLR 302; [2003] NSWSC 397

Cobbe v Yeoman’s Row Management Ltd [2008] UKHL 55; [2008] 1 WLR 1752

Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389

Community Association DP270447 v ATB Morton Pty Ltd [2019] NSWCA 83

Cook’s Construction Pty Ltd v Brown [2004] NSWCA 105; (2004) 49 ACSR 62

Crabb v Arun District Council [1976] Ch 179

Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26

Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84

DHJPM Pty Ltd v Blackthorn Resources Ltd (2011) 83 NSWLR 728; [2011] NSWCA 348

Dillwyn v Llewelyn (1862) 4 De GF & J 517

Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105

EB 9 & 10 Pty Ltd v The Owners Strata Plan 934 (2018) 98 NSWLR 889; [2018] NSWCA 288

Evans v Evans [2011] NSWCA 92

Flinn v Flinn [1999] 3 VR 712; [1999] VSCA 109

Gallagher v Rainbow (1994) 179 CLR 624; [1994] HCA 24

Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10

Gould v Vaggelas (1985) 157 CLR 215; [1985] HCA 75

Greater Dandenong City Council v Australian Municipal, Clerical and Services Union (2001) 112 FCR 232; [2001] FCA 349

Hanave Pty Ltd v LFOT Pty Ltd [1999] FCA 357; (1999) 43 IPR 545

Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168

Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46

Huntsman Chemical Co Australia Ltd v International Pools Australia Pty Ltd (1995) 36 NSWLR 242

In re MF Global Australia Ltd (in liq) [2012] NSWSC 994; 267 FLR 27

Jenyns v Public Curator (Q) (1953) 90 CLR 113; [1953] HCA 2

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392; [2013] HCA 25

Lin v The Owners – Strata Plan No 50276 [2004] NSWSC 88; 11 BPR 21,463

Maraya Holdings Pty Ltd v Chief Commissioner of State Revenue [2013] NSWCA 408

McElwaine v The Owners Strata Plan 75975 [2017] NSWCA 239; 18 BPR 37,207

Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500

Meskovski v Director of Public Prosecutions [2018] VSCA 293

Mistrina Pty Ltd v Australian Consulting Engineers Pty Ltd [2020] NSWCA 223

Owners – Strata Plan No 43551 v Walter Construction Group Ltd (2004) 62 NSWLR 169; [2004] NSWCA 429

Ramsden v Dyson (1866) LR 1 HL 129

Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19

Smith v Chadwick [1884] 9 App Cas 187

Smith v Chadwick (1881) 20 Ch D 27

Sullivan v Sullivan [2006] NSWCA 312

The Queen v Khazaal (2012) 246 CLR 601; [2012] HCA 26

Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776

Trentelman v The Owners – Strata Plan 76700 (No 2); The Owners – Strata Plan 76700 v Trentelman (No 2) [2021] NSWSC 377

Trentelman v The Owners – Strata Plan 76700 (No 3); The Owners – Strata Plan 76700 v Trentelman (No 3) [2021] NSWSC 578

Trentelman v The Owners – Strata Plan 76700; The Owners – Strata Plan 76700 – Trentelman [2021] NSWSC 155

Vickery v The Owners – Strata Plan No 80412 (2020) 103 NSWLR 352; [2020] NSWCA 284

Texts Cited:

L Goddard, A Treatise on the Law of Easements (8th ed, Stevens and Sons Ltd, 1921)

P Herzfeld and T Prince, Interpretation (2nd ed, Lawbook Co, 2020)

S Worthington, “Corporate Attribution and Agency: Back to Basics” (2017) 133 Law Quarterly Review 118

Category:

Principal judgment

Parties:

Natalia Trentelman (Appellant)
The Owners – Strata Plan No 76700 (First Respondent)
Registrar General of New South Wales (Second Respondent)

Representation:

Counsel:
M Ashhurst SC with G Farland (Appellant)
E Peden SC with J Mee (First Respondent)

Solicitors:
Bannermans Lawyers (Appellant)
Strata Advisory Services (First Respondent)

File Number(s):

2021/101998; 2021/102010

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Equity

Citation:

[2021] NSWSC 155

Date of Decision:

26 February 2021

Before:

Parker J

File Number(s):

2018/312426; 2018/328341

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant, Natalia Trentelman, brought this appeal from a decision of a judge of the Equity Division of the Court. His Honour rejected a claim in contract but found that the Owners Corporation had established a proprietary estoppel warranting an easement in its favour, allowing the use of a swimming pool and associated structures on lot 53 owned by Ms Trentelman.

Ms Trentelman also appealed against the primary judge’s decision to refuse to make an order in separate proceedings brought by her that a notation on the Strata Plan with respect to the pool be removed from the register.

In October 2007, an easement for the use of the swimming pool which was originally situated on lot 7 in favour of lots 9-48 of the Strata Plan was created. The easement contained a number of conditions, including that it would continue until the earlier of 10 years from the date of registration or until a further easement for the use of the pool benefitting the same lots is created.

In July 2009, Ms Trentelman and her husband, Johannes Trentelman, purchased all the lots in the Strata Plan. From September or October 2010, the Trentelmans commenced to sell individual lots in the strata scheme.

In 2014, the Trentelmans wanted to free certain lots from the restrictions of the strata scheme for the purpose of development and resale. They also devised plans for the development of lot 7 by building a group of three townhouses on it. A special resolution of the Owners Corporation was required to enable this to occur.

In that context, the Trentelmans, who at the time had control of the Strata Committee, caused the requisite resolutions to be brought forward at the Annual General Meeting of the Owners Corporation in July 2014. The notice of meeting proposed two motions, motions 10 and 11, accompanied by explanatory notes, to give effect to the proposal.

The motions, explanatory notes and plans accompanying the notice of meeting indicated that easements would exist so that owners and occupiers of lots had a continuing right to use the pool. At the meeting at which the resolutions were passed unanimously, Mr Trentelman emphasised the fact that under the proposal, lot owners would have continuing use of the pool.

In December 2014, a further plan of strata re-subdivision was drawn up by a surveyor on the Trentelmans’ instructions. The plan of re-subdivision realigned the borders of lots 7 and 6, which became lots 53 and 54 in the Strata Plan.

At the 2015 Annual General Meeting of the Owners Corporation, Mr Trentelman was asked to explain what his development looked like and what impact it would have. Mr Trentelman made a number of statements pertaining to the lot holders’ use of the pool, including “we will give you the swimming pool”.

Thereafter, the Trentelmans set about implementing the proposal. The requisite conveyancing steps were taken to give effect to the proposal, but no provision was made for an easement permitting the lot holders to use the pool.

In about mid-2017, the Trentelmans completed the construction of the townhouses on lot 53. When the original easement expired in October 2017, they excluded from the pool area the lot owners, except those with whom they were friendly.

The main issue on appeal was whether the primary judge had erred in finding that the Owners Corporation had made out its case for relief by way of proprietary estoppel.

Did the primary judge err in finding that the Owners Corporation had made out its case for relief by way of proprietary estoppel?

1. To establish a claim of proprietary estoppel by encouragement, it must be shown that an owner of property as representor has encouraged another by way of a representation to alter his or her position in the expectation of obtaining a proprietary interest, and that the representee has to their detriment changed his or her position in reliance on the expectation, such that it is unconscionable for the representor to resile from the representation: [116]-[118] (Bathurst CJ); [170] (Bell P); [171] (Leeming JA).

Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10; Dillwyn v Llewelyn (1862) 4 De GF & J 517; Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19; Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105; Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84; Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26, referred to.

1. Discussion of the appropriateness of distinguishing between lot holders in their personal capacity and in their constitutive capacity as an organ of the owners corporation: [171]-[209] (Leeming JA).

Did Ms Trentelman make a representation?

1. Notwithstanding the requirement that there must be certainty in the promise to give rise to the requisite expectation, an equitable estoppel can be established despite the expectation being based on a promise or representation that would not be sufficiently certain to amount to a valid contract, or is formed on the basis of vague assurances: [120] (Bathurst CJ); [170] (Bell P); [171] (Leeming JA).

DHJPM Pty Ltd v Blackthorn Resources Ltd (2011) 83 NSWLR 728; [2011] NSWCA 348; Evans v Evans [2011] NSWCA 92; Flinn v Flinn [1999] 3 VR 712; [1999] VSCA 134, referred to.

1. A promise or representation will generally be sufficiently clear to support an estoppel if it was reasonable for the representee to interpret the promise in a particular way and to act in reliance on that assumption: [121] (Bathurst CJ); [170] (Bell P); [171] (Leeming JA).

Sullivan v Sullivan [2006] NSWCA 312; Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105; Evans v Evans [2011] NSWCA 92, referred to.

1. Depending on the particular context, a proprietary estoppel may be established where the promise or representation relied upon did not define the interest the party was expected to receive: [122] (Bathurst CJ); [170] (Bell P); [171] (Leeming JA).

Sullivan v Sullivan [2006] NSWCA 312; Flinn v Flinn [1999] 3 VR 712; [1999] VSCA 134; Cobbe v Yeoman’s Row Management Ltd [2008] UKHL 55; [2008] 1 WLR 1752, referred to.

Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776, considered.

1. A bright line cannot be drawn between categories of cases simply on the basis that some can be classified as commercial and others as domestic/family: [146] (Bathurst CJ); [170] (Bell P); [171], [209] (Leeming JA).

Cobbe v Yeoman’s Row Management Ltd [2008] UKHL 55; [2008] 1 WLR 1752; Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776; DHJPM Pty Ltd v Blackthorn Resources Ltd (2011) 83 NSWLR 728; [2011] NSWCA 348, referred to.

Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105, applied.

1. What is important is how the representation or promise would be reasonably understood by a person in the position of the persons to whom the representation was made; [147] (Bathurst CJ); [170] (Bell P); [171] (Leeming JA).

Cobbe v Yeoman’s Row Management Ltd [2008] UKHL 55; [2008] 1 WLR 1752; DHJPM Pty Ltd v Blackthorn Resources Ltd (2011) 83 NSWLR 728; [2011] NSWCA 348, referred to.

1. The representations induced an expectation in the lot owners acting in general meeting that if they voted in favour of the resolutions, thereby permitting the Owners Corporation to enter into and complete the transaction, the Owners Corporation would be granted an ongoing interest in the pool for the benefit of owners or occupiers: [126], [139], [141], [148] (Bathurst CJ); [170] (Bell P); [171] (Leeming JA).

Did the Owners Corporation alter its position in reliance on the representation?

1. The reliance can be said to be that of the Owners Corporation such that it is the proper party: [130]-[131] (Bathurst CJ); [170] (Bell P); [171] (Leeming JA).

2. Reliance is a question of fact and the onus to prove reliance at all times remains on the representee: [156] (Bathurst CJ); [170] (Bell P); [171] (Leeming JA).

Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19, referred to.

1. The question is whether the conduct was so influenced by the representation that it would be unconscionable for the representor thereafter to insist on its strict legal rights: [156] (Bathurst CJ); [170] (Bell P); [171] (Leeming JA).

Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19; Amalgamated Investment & Property Co Ltd (in liq) v Texas Commercial International Bank Ltd [1982] QB 84, referred to.

1. The Owners Corporation established that the lot holders in general meeting relied on the representation in voting for the resolutions: [161]-[162] (Bathurst CJ); [170] (Bell P); [171] (Leeming JA).

Has there been detrimental reliance by the Owners Corporation such that it is unconscionable for Ms Trentelman to resile from the representation?

1. The Owners Corporation suffered detriment as a result of the passing of the resolutions: [162]-[163] (Bathurst CJ); [170] (Bell P); [171] (Leeming JA).

2. It was unconscionable for Ms Trentelman to resile from the representation she made: [164] (Bathurst CJ); [170] (Bell P); [171] (Leeming JA).

Relief

1. In the case of proprietary estoppel it is not necessary to mould the relief to reflect the minimum equity necessary to remove the detriment, provided that the relief granted was not out of all proportion to the detriment suffered: [165] (Bathurst CJ); [170] (Bell P); [171] (Leeming JA).

Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10; Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19; Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84; Ashton v Pratt (2015) 88 NSWLR 281; [2015] NSWCA 12, referred to.

Consideration, by Leeming JA, of:

1. the relationship between the owners corporation and the lot holders (at [182]-[195]).

2. whether the lot holders were necessary parties (at [196]-[203]).

3. the reliance on Smith v Chadwick (1884) 9 App Cas 187 concerning the failure to adduce evidence from all lot holders (at [210]-[214]).

Judgment

1. BATHURST CJ: This is an appeal from a decision of a judge of the Equity Division of the Court whereby invoking the doctrine of proprietary estoppel his Honour ordered that the appellant, Natalia Trentelman (Ms Trentelman or the appellant) grant an easement in favour of the first respondent, The Owners – Strata Plan No 76700 (the Owners Corporation or the respondent), allowing the Owners Corporation the right to use a swimming pool and associated structures on lot 53 of Strata Plan No 76700 (the Strata Plan) which was owned by Ms Trentelman (Trentelman v The Owners – Strata Plan 76700; The Owners – Strata Plan 76700 – Trentelman [2021] NSWSC 155 (the substantive judgment)). Annexure ‘A’ to the judgment is the easement ordered by the primary judge. The primary judge also granted certain ancillary relief which is not necessary to set out.

2. Ms Trentelman has also appealed against the primary judge’s refusal to make an order in separate proceedings brought by her that a notation on the Strata Plan to the effect the pool building and the pool itself formed part of the common property under the strata scheme (the pool notation) be removed from the register (Trentelman v The Owners – Strata Plan 76700 (No 2); The Owners – Strata Plan 76700 v Trentelman (No 2) [2021] NSWSC 377 (the subsequent judgment)).

The background facts

3. There was little dispute as to the primary facts, although there was considerable controversy as to the inferences and conclusions which should be drawn from them.

4. The property in question is situated at Bogangar on the far north coast of New South Wales, just inland from Cabarita Beach, midway between Byron Bay and Tweed Heads. The development on the property up to and including 2014 comprised a four-storey apartment building and surrounding land.

5. Strata Plan 76700 was registered in March 2006. Originally it included eight lots, lot 1 being the apartment building which was used as a motel. The pool the subject of the proceedings was on lot 7. Apart from the pool and its ancillary structures, lot 7 was vacant. Lots 2-6 and 8 were also vacant.

6. The registration of the Strata Plan was accompanied by a strata development contract. Such a contract was required for staged development of a strata scheme. The relevant contract contemplated the upgrading of the apartment building on lot 1, and the construction of three storey buildings, each comprising 10 two-bedroom units with basement car parking, on each of lots 2-7, with a sporting complex consisting of a tennis court, pool and recreation facilities on lot 8. The relevant contract stated that the work was to be completed by July 2011, although cl 8 of that contract specified the “Date of Conclusion of Development Scheme” as September 2010.

7. In August 2007, by Strata Plan of Subdivision No 79344, the motel on lot 1 was subdivided to create lots 9-51 in the strata scheme.

8. In October 2007, an easement for the use of the swimming pool situated on lot 7 in favour of lots 9-48 was created. It is not clear why lots 49-51 were excluded from the dominant tenement. The easement contained the following conditions:

“The lots in the dominant tenement shall bear the cost of operation, repairs and maintenance of the pool and surrounding facilities in the proportions of their unit entitlement in SP79344. Such easement shall continue until the earlier of 10 years from the date of registration or until a further easement for the use of a swimming pool benefitting the same parcels is created in any of the other lots in SP76700.”

9. In July 2009, Ms Trentelman and her husband, Johannes Trentelman (Mr Trentelman), purchased all the lots in the Strata Plan. The lots acquired by Ms Trentelman included the development lots 2-8.

9. From September or October 2010, the Trentelmans commenced to sell individual lots in the strata scheme. The primary judge found that the developed lots had a unit entitlement of 10 to 15 times the entitlement of a typical apartment, such that the owners of those lots had a substantial liability to contribute to the expenses of the Owners Corporation. However, the primary judge found, and it was not disputed that the developed lots neither contributed to the Owners Corporations’ funds, nor was their unit entitlement counted for voting purposes at general meetings of the Owners Corporation.

10. The primary judge also found that the cost of maintaining the pool was treated as an Owners Corporation expense and levies to meet these expenses were borne by all the lot owners in the apartment buildings, including those lots which were not included in the dominant tenement, namely lots 49-51. Further, the Owners Corporation made by-laws regulating the use of the pool.

11. In October 2011, the Trentelmans caused the Owners Corporation to register Strata Plan 85956 which subdivided lot 9 and which, among other things, converted the rooftop terrace on the apartment building and ground floor car park to common property.

12. In 2013, the Trentelmans determined not to pursue the proposed development the subject of the strata development contract. Having regard to the fact that the strata development contract had expired and none of the proposed work had commenced, it may be doubted that they were entitled to do so, in any event, at least without a further development consent.

13. In 2014, the Trentelmans wanted to free the development lots from the restrictions of the strata scheme so that they could be developed and sold off as ordinary Real Property Act 1900 (NSW) lots. They also devised specific plans for the development of lot 7 by building a group of three townhouses on it.

14. To enable this to occur, the relevant lots first had to be converted to common property by way of a strata re-subdivision and then transferred back as Real Property Act land.

15. These steps required a special resolution of the Owners Corporation. The Trentelmans also wanted resolutions that, once the land was converted, it would be transferred back to them as Real Property Act land, and that the Owners Corporation would consent to the proposed development of lot 7.

16. In that context, the Trentelmans, who at the time had control of the Strata Committee, caused the requisite resolutions to be brought forward at the Annual General Meeting of the Owners Corporation in July 2014. The notice of meeting proposed the following resolutions to give effect to the proposal. Because the proposed resolutions and the explanatory notes provided in respect of them are of critical importance in the proceedings, it is necessary to set them out in full:

“10.   Removal of Development Lots from Scheme

SPECIAL RESOLUTION

That the Owners Corporation specially resolve to consent to the removal of the development lots (lots 2, 3, 4, 5, 6, 7, and 8) in strata plan 76700 (Development Lots) (as hatched and outlined on the pages of the strata plan attached and marked ‘DL-1’ to ‘DL-3’) from the strata scheme in accordance with the Strata Schemes Freehold Development Act 1973 (SSFDA) and that the Owners Corporation agree to the carrying out of the following matters (or such similar procedures as may be authorised by the Executive Committee [(or the Strata Committee)] to give effect to the intention of this resolution) by the owners of the Development Lots (at the cost of the owners of the Development Lots) to give effect to the proposal:

(a)   conversion of the Development Lots to common property in accordance with the SSFDA;

(b)   preparation and registration of such deposited plans as may be required to give effect to the proposal;

(c)   preparation and registration of such transfers of land for the newly created lots as may be required to transfer the relevant parcels of land as necessary to give effect the proposal

(d)   future development on Lot 7 in strata plan 76700 (Lot 7) of no more than 3 townhouses of no more than two storeys in height,

(Proposal)

and that the respective amount that each remaining lot's unit entitlement bears to the overall unit entitlement will be proportionally increased as a result of the removal of the Development Lots from the scheme and the reduction in the aggregate unit entitlement for all the lots remaining in the scheme following the Proposal and, further, that the Owners Corporation sign such documents under seal in accordance with section 238 of the Strata Schemes Management Act 1996 as may be required to give effect to the Proposal, including (but not limited to):

(i)   application for development approval to Tweed Shire Council (Council);

(ii)   notice of conversion in the form approved under the Real Property Act 1900 and such other documents and certificates which may be required to accompany same;

(iii)   administration sheets (approved form 23) in accordance with the SSFDA;

(iv)   certificates and approved forms in accordance with the SSFDA (including approved forms 9, 10, 11 and 12);

(v)   transfers of land for the newly created lots (including approved form 9); and

(vi) preparation and registration of such documents for the surrender or creation of such easements or covenants as may be necessary or desirable, including any section 88B instruments, to ensure:

•   Owners and occupiers of lots within the scheme have a continuing right to use the swimming pool on Lot 7;

•   Owners and occupiers of Lot 7 have a continuing right to traverse the scheme by road and foot for the purposes of accessing Lot 7 (including the carrying out of future development work); and

•   the carrying out of future development work on Lot 7 is restricted in accordance with the conditions included in this motion,

and that the Executive Committee and/or Strata Managing Agent liaise with such representatives of the owners of the Development Lots (e.g. surveyor and solicitor) or such other persons on behalf of the Owners Corporation to assist with the preparation and registration of all documentation as may be required to give effect to the Proposal.

2.   Development of Lot 7 with Scheme

UNANIMOUS RESOLUTION

That, subject to the passing of motion 10, the Owners Corporation unanimously resolve to consent to the making of an application for development approval to Tweed Shire Council (Council) by the owner of former development lot 7 in strata plan 76700 (being any new lot into which Lot 7 is subdivided consequent upon the removal of the Development Lots from the scheme in accordance with motion 10) (Lot 7) for the creation of a community association over Lot 7 and the scheme in accordance with the provisions of the Community Land Development Act 1989 (CLDA) and the creation of the following community lots:

•   Lot 1 – association property, comprising the swimming pool (currently on Lot 7 (to become Lot 3) and/or any common roadways and footpaths (provided that, if the swimming pool does not form association property, owners and occupiers of lots within the scheme have a continuing right to use the swimming pool by way of easement or similar and, if any roadways or footpaths providing access to Lot 3 do not form association property, owners and occupiers of Lot 3 have a continuing right to use any relevant roadways and footpaths within the scheme for the purposes of accessing Lot 3 by way of easement or similar);

•   Lot 2 – comprising the area forming the scheme (less any association property); and

•   Lot 3 – comprising the area forming Lot 7 (less any association property),

(Community Association)

and that, subject to the provisions of the CLDA, Lots 2 and 3 in the Community Association both have a unit entitlement of 1 (or otherwise equal) and that Lot 3 in the Community Association be reserved for future development into no more than 3 townhouses of no more than two storeys in height to be subdivided by registration of a neighbourhood or strata plan and that, simultaneous with the registration of such plan, an amended schedule of unit entitlements be registered for the Community Association based on the respective number and value of lots in the scheme and Lot 7 respectively (taking into account that the scheme will have a greater intensity of use of the common facilities) and otherwise subject to the provisions of the CLDA and that the Owners Corporation agree to the carrying out of the following matters (or such similar procedures as may be authorised by the Executive Committee to give effect to the intention of this resolution) by the owner of Lot 7 (at the cost of the owner of Lot 7) to give effect to the proposal:

(a)   preparation and registration of such deposited plans as may be required to create the Community Association;

(b)   preparation and registration of a management statement for the Community Association (on terms to be approved by the Executive Committee);

(c) preparation and registration of such documents for the surrender or creation of such easements or covenants in the Community Association as may be necessary or desirable, including any section 88B instruments;

(d)   preparation and registration of such development contract as may be approved by Council for the future development of Lot 3 in the Community Association; and

(e)   preparation and registration of such neighbourhood and strata plan administration sheets and consents to effect registration of the neighbourhood or strata scheme on Lot 3, including an amended schedule of unit entitlement for the Community Association in accordance with the requirements of the CLDA,

(Proposal)

and, further, that the Owners Corporation sign such documents under seal in accordance with section 238 of the Strata Schemes Management Act 1996 as may be required to give effect to the Proposal, including (but not limited to):

(i)   application for development approval to Council;

(ii)   community association plan administration sheets (including approved form 6) and a schedule and amended schedule of unit entitlements in accordance with the CLDA;

(ii) management statement, easements and covenants (including section 88B instruments) and development contract,

and that the Executive Committee and/or Strata Managing Agent liaise with such representatives of the owner of Lot 7 (e.g. surveyor and solicitor) or such other persons on behalf of the Owners Corporation to assist with the preparation and registration of all documentation as may be required to give effect to the Proposal.

Explanatory Note – Motion 10:

The strata scheme includes a series of development lots (being lots 2 – 8), which were originally intended to be developed and subdivided further plans of subdivision to create additional lots in the scheme. The proposed development was 'authorised development' and not 'mandatory development' and development was never completed in accordance with the strata development contract.

Accordingly, motion 10 proposes to remove the development lots from the scheme. Following the removal of the development lots from the scheme, the existing built lots (9 – 51) will continue to be strata lots forming part of the strata scheme, which will continue in existence and be identical in all material respects to the existing strata scheme (without the balance development lots reserved for future development). This will benefit owners of lots in the scheme, who will not have to contribute to the upkeep and maintenance of additional common property that would have otherwise been created in the subsequent stages of development.

The motion ensures that easements exist so that owners and occupiers of lots within the scheme have a continuing right to use the swimming pool on Lot 7 and that owners and occupiers of Lot 7 have a continuing right to traverse the scheme by road and foot for the purposes of accessing Lot 7.

The motion also provides that future development on Lot 7 is restricted to no more than 3 townhouses of no more than two storeys in height. Such development is far less intense than the original development permitted under the development contract, which allows for a 3-storey, 10 lot apartment building on the land. Accordingly, owners and occupiers in the strata scheme will benefit from retaining greater amenity of their units in relation to Lake Cabarita.

Explanatory Note – Motion 11:

Should motion 10 be passed, motion 11 provides for an application to be made to Council for development approval to create a Community Association over the strata scheme and development Lot 7 (adjoining the scheme, which houses the swimming pool).

Motion 11 may not necessarily be carried out as it is an alternative way of carrying out the development proposed in motion 2 (namely, the townhouses) and involves the creation of a Community Association (of which the scheme would be a part) and requires a unanimous resolution for its passage. The passing of the motion will provide flexibility for the owner of Lot 7 and Council in deciding the most suitable way of carrying out future development on Lot 7.

The arrangement will allow the creation of community association property (being the swimming pool and/or common roadways) which will be shared between the scheme and Lot 7 (to become Lot 3 (Development Lot)). The unit entitlements of each lot will be the same (until such time as the development contemplated on the Development Lot is carried out), so that both the strata scheme and the Development Lot contribute equally to maintaining the common facilities.

Provision will be made for the Development Lot to be developed in the future to accommodate no more than 3 townhouses of no more than 2 storeys in height and the unit entitlements for the scheme and the Development Lot will be adjusted based on the respective number and value of lots in the scheme and the Development Lot respectively (taking into account that the scheme will have a greater intensity of use of the common facilities).

The proposed development on the Development Lot is far less intense than the original development permitted under the development contract, which allows for a 3-storey, 10 lot apartment building on the land. Accordingly, owners and occupiers in the strata scheme will benefit from retaining greater amenity of their units in relation to Lake Cabarita.”

18. The notice of meeting was accompanied by plans detailing the proposed subdivision. It appears that the plans accompanying the notice of meeting received at least by some of the unit holders contained the following notation which was said to be in the writing of Mr Trentelman:

“Current Situation

DA approved 6 blocks of 10 three bedroom apartments plus Recreation Centre

The motions in essence – stop all the blocks of apartments splits most of the land off away from the current 51 apartment block and limits development to only at maximum 3 (2 storey) townhouses in front of us. Pool will only be used by 51 apartments and owners of townhouses only. Other land has no access.

Current block of 51 apartments.”

19. It will be necessary to say more about the construction of motion 10 subsequently in this judgment, but the following matters may be noted at this stage. First, the resolution the subject of motion 10 was a composite resolution. It included not only a resolution approving the development proposal, but also a resolution to take the necessary steps to give effect to it, including taking steps necessary for the creation of such easements or covenants as may be necessary to ensure that owners and occupiers of lots within the strata scheme had a continuing right to use the swimming pool. The taking of such steps was an integral part of what was proposed by the resolution.

20. Second, as was emphasised by senior counsel for Ms Trentelman, the proposal the subject of the resolution did not specify the nature of the interest that the Owners Corporation would receive to ensure the continuing use of the pool. Rather, the Owners Corporation was directed to take such steps as may be authorised by the Strata Committee and to execute such documents as may be required to give effect to the proposal.

21. Third, the resolutions were propounded at a time when all the lot owners had access to the pool and the Owners Corporation had assumed responsibility for regulating its use and the cost of its upkeep.

22. Fourth, the explanatory notes to the motions contained in the notice of meeting stated that the motions ensured that easements exist so that owners and occupiers of lots within the scheme had a continuing right to use the swimming pool on lot 7. The persons proposed to be entitled to the easements were not limited to the owners of the lots which had the benefit of the pre-existing easement.

23. At the meeting at which the resolutions were passed, Mr Trentelman emphasised the fact that under the proposal, lot owners would have continuing use of the pool. The primary judge summarised the affidavit evidence of the lot holders who attended the meeting in a table (at [136] of the substantive judgment), which it is convenient to set out:

Witness	Quote (Mr Trentelman)
Mr Lofthouse	I would like to build 3 townhouses on those remaining lots. In exchange for that we will not be building the bigger building which we can do and we will give you the use of the pool forever.
I am giving you the pool. The views of the lake will not be badly affected. I have had the townhouses designed so that there will be views between them. There will be views in the corridors between the townhouses. You will all have indefinite access to the pool and the townhouses will share it as well.
Mr Luddington	If owners do give permission, then they will have continued use of the pool. The 51 owners of the current apartments in the strata will have access to the pool. They will not lose their views.
Your remaining choices are to accept the proposal of the three, two storey townhouses and the removal of the undeveloped land within our strata. This is on the basis that you will have ongoing access to the pool.
Mr Flynn	If you agree to the change in development, I will ensure that owners will have continued use of the pool. I want this to be a painless exercise and I do not want owners disadvantaged. I want the views maintained so far as is practical by the development of the townhouses.
There will be continued use of the pool. I do not want owners disadvantaged by this development.
I wish to keep the goodwill in this complex. The current enjoyment of the pool will continue.
Ms Chatterjee	The current development proposal is to develop a high rise building, however, I now wish to construct and build three townhouses. You will still have access to the pool and your view.
In any development of the area, you will all have continued use of the pool.
In exchange for action to remove these Lots, the redevelopment of the lot of which the pool is situated will be limited to three townhouses and you will have continued access to the pool.
Mrs Lofthouse	I want permission to remove the development lots from the strata scheme. If you give me the permission the use of the pool for all owners will be renewed indefinitely.
It is two levels total. If you approve this, you will get the pool indefinitely.

24. His Honour also conveniently summarised the evidence given in cross-examination on this issue (at [149] of the substantive judgment):

Witness	Question	Answer
Mr Lofthouse	What do you claim was said in relation to the proposal by Mr Trentelman?	Mr Trentelman put the proposal through to us that he would incise what he called were development blocks. He would leave three blocks with the strata, that he would build two 2 storey townhouses on. In exchange, he would give us the pool forever. We already had it until 2017, so that's why he was stressing the forever.
When you say that Mr Trentelman said he was going to give you the pool, you're referring to that passage that I just read out to you [Motion 10]?	To that passage and the talk that was after the passage. He, he read out that passage, and then he went on to talk to us in layman terms, bearing in mind I’m an upholsterer et cetera he turned and then went on to explain it in layman’s terms when he made it quite clear that he’ll give us the pool forever and that would be an obvious thing to do. As I said, we already had the pool to 2017, sir.
In layman terms, what he said to you was that, "This proposal would not interfere with your use of the pool", correct?	He said we'd have continuous use of the pool.
Mr Flynn	Is it possible that what Mr Trentelman said at this meeting about the pool is that the owners corporation would be authorised to sign such documents for the surrender or creation of such easements or covenants - I withdraw that. If you just have a look at the words at VI, it might be easier rather than me reading them out. at page 266?	So, so my understanding of the meeting is that he was offering up the pool to be part of the, of the strata plan and it would be put in as common property and any of the paperwork required and costs associated would be borne by him and done by him, and he was the executive part of the owners corp.
Ms Chatterjee	The pool was very much a side issue at this meeting, would you agree with that? That's your recollection of what he said, that you would continue to have use of the pool?	Yes, because we were told quite certainly that we would have continued access to the pool. The new complexes and our existing complex would form one strata and share the pool. Yes, correct.
Is it possible that what was said at this meeting was that the proposal that was being put forward would not interfere with the then existing use of the pool?			Yes, there was no indication that there would be interference with the use of the pool at any time.
In fact you were told that this would not interfere with your use of the pool, weren't you?	Correct.
Mrs Lofthouse	So what you understood was being discussed at this meeting was the extension of the easement that's at page 443?	No it’s not - it wasn't like that. It's not the extension. The deal that was given to us is we're going to have the swimming pool indefinitely in return for the three townhouses instead of those six by ten apartments and the excision of those vacant lots which carries 310 unit entitlements which they never paid levies anyway. That was the deal.
Mr Kelly	Did you understand, firstly, that to be a reference to a continuation of the easement that I’ve just shown you?	No, I don’t understand that it was just referring to the easement because I read the minutes of the meeting, the proposed meeting, which indicated that the pool would be transferred to common property.
	You understood that on that page that “explanatory note, motion 11” was an alternative way that may not occur? Please.	Correct. Can I explain? As I was not at that meeting, the meeting I had with Mr Trentelman was designed to give my own peace of mind in relation to the future development and the ongoing use of the swimming pool. I saw – in the wording of those 15 minutes and the explanatory notes, I saw that we would either get the pool by common property or an extension of the easement.

25. It should be noted Mr Kelly was not present at the meeting but had had a separate conversation with Mr Trentelman concerning the proposal. Mr Kelly’s evidence was that Mr Trentelman told him that, “As well as getting a more attractive development, which wouldn’t in any way affect the value of the properties, owners will have continued access to the swimming pool. The tenants will be able to use the pool as well.” Mr Kelly said that as a result of the answer, he either appointed Mr Trentelman as his proxy or confirmed that appointment.

26. The motion was passed unanimously. Of the 113 votes in favour, 63 votes were cast by Mr and Ms Trentelman, 17 in their own right and 46 as proxy for other unit holders. Ms McConnell, who was on the Strata Committee of the Owners Corporation at the time, cast 3 votes in her own right and 8 votes as proxy, whilst other unit holders cast 39 votes, 32 in their own right and 7 as proxy for other unit holders.

27. Thereafter, the Trentelmans, in Ms Trentelman’s capacity as owner of the development lots and in their capacity as members of the Strata Committee of the Owners Corporation, proceeded with the implementation of the proposal.

28. In December 2014, a further plan of strata re-subdivision was drawn up by a surveyor, Mr Wyper, on the Trentelmans’ instructions. The plan was registered with certain amendments as Strata Plan 91510. The plan of re-subdivision realigned the borders of lots 7 and 6, which became lots 53 and 54 in the Strata Plan. The plan contained the pool notation.

29. By the time of the 2015 Annual General Meeting of the Owners Corporation, the plan with the pool notation had been registered. At the meeting, in dealing with general business, Mr Trentelman was asked to explain what his development looked like and what impact it would have. The meeting was recorded, and the primary judge set out the discussion which took place as follows (at [121]-[126] of the substantive judgment):

“[121]   When Mr Trentelman had done so [explained the impact of the proposal], the transcript records an intervention from David Adam, one of the lot owners about the pool:

Mr Adam: Technically, he’s not passing it on.

Mr Trentelman: No, no, it belongs to lot 53. Now when we bought the (inaudible) complex and we bought the complex and what was the, this was already existing, the boomerang [motel building] there, ok that was already existing. Now there were development approvals for all these lots. Now the development approval here was for a block of 10 apartments. Block of 10 apartments. Now that block of 10 apartments would have taken the whole of that and may have taken the pool as well.

[122]   … Mr Luddington protested that Mr Trentelman ‘assured many of us that we would never lose our view’.

[123]   Mr Trentelman denied this, and brought the discussion back to the original development proposal, stating that it would have involved 80 to 100 further units. The transcript continues (emphasis added):

Mr Trentelman: Ok so, we went to, to you guys and said look we don't want that, we, you guys have bought in here, and we don't want that for you, alright.

Ms McConnell: That was the meeting last time.

Mr Trentelman: We've said, we would try and make it as attractive as we possibly can. Okay, so we've said we will not build this, we will not build any of these. Ok. We will keep the development down and what we are going to do here is build 3 townhouses, 3 townhouses and the maximum height is 2 levels, ok being ground and next level and that's the maximum height. We also said because that we are building those, we will give you the swimming pool.

[124]   The transcript then continues:

Mr Luddington: Well that's all tied into the original [development] contract, the right of use for the pool as (inaudible) ... community pool, (inaudible) no issues (inaudible).

Mr Trentelman: If you look at the swimming pool ... the swimming pool, if you, actually Charito [Lofthouse] actually found it, the swimming pool has an easement for 10 years only. In 2 years time, that easement that easement is diminished, is gone.

Mr Luddington: So we lose our right of access?

Mr Trentelman: You lose your right of access to that pool.

[125]   Mr Luddington replied that this was ‘something you have assured us would never happen’. After some disjointed exchanges, the transcript continues (emphasis added):

Mr Trentelman: John, what we have said... we look we don't agree with that, we don’t agree with taking the pool away from you.

Mr Luddington: Yeah that's fine, I understand that.

Mr Trentelman: We have said, we will give you the swimming pool.

Mr Luddington: Yep.

Mr Trentelman: Ok We will get. We will not have a block of 10 apartments there. We will keep our development to a minimum. That’s what we’ve done here (inaudible). We will section this off. We will not have all the blocks of townhouses there. Look I reckon it's a fair cop what we're (inaudible) giving you.

[126]   … The transcript ends with these comments from Mr Adam and another participant identified as ‘Malcolm’:

Mr Adam: Legally John can do whatever he likes, he doesn’t have to give us that pool right (inaudible arguing).

Malcolm: Give you nothing, the way you have treated him he has paid all this money out of his own pocket he has given you the shed, he has given the pool and you treat him like shit.

Mr Trentelman: And you still want it.

Malcolm: And you are still after blood. I’ve never seen people like you, you are not very business minded people.”

30. Thereafter, the Trentelmans, who still controlled the Strata Committee with Ms McConnell, set about implementing the proposal. On 19 November 2015, they caused the Owners Corporation to enter into a Deed with Ms Trentelman, which obliged the Owners Corporation to first convert lots 2-5, 8 and lot 54 (the original lot 6 as realigned) to common property, then to provide Ms Trentelman with a plan of subdivision having the effect of hiving off those lots from the Strata Plan and then transferring them to Ms Trentelman.

31. The requisite conveyancing steps were taken to give effect to the proposal. They were effectively completed by February 2016. It should be noted that lot 53 remained as part of the Strata Plan and no provision was made for an easement permitting the lot owners to use the pool.

32. At the Annual General Meeting of the Owners Corporation in September 2016, the Trentelmans failed to be re-elected to the Strata Committee. The primary judge found (at [64] of the substantive judgment) that about three weeks later, the Trentelmans discovered that the existing easement was in favour of lots 9-51, rather than the Owners Corporation (in fact, it was only in favour of lots 9-48). On 8 November 2016, Mr Trentelman took over the maintenance and cleaning of the pool and erected a sign excluding everyone other than the owners of lots 9-51.

33. In about mid-2017, the Trentelmans completed the construction of the townhouses on lot 53. When the original easement expired in October 2017, they excluded from the pool area the lot owners, except those with whom they were friendly.

34. The Trentelmans also unsuccessfully sought to have the pool notation removed from the Strata Plan.

35. Thereafter, the Owners Corporation commenced the proceedings the subject of this appeal seeking, among other prayers for relief, the following orders:

“4   In the alternative to Orders 2 and 3:

…

b.   in the alternative to Order 4(a), a declaration that the defendant Is estopped from resiling from her representations that she would not take any step to prevent access to and use of the Pool and Structures, and would put in place permanent arrangements to allow such continuing and permanent access; and

…

d.   in the alternative to Order 4(c), an order that the defendant do all things reasonably necessary at the request of the plaintiff to register an easement over the Pool and Structures, the terms of which will allow owners and occupiers of the lots within the Strata Scheme, including future owners and occupiers, to continuing and permanent access to and use of the Pool and Structures, on terms that the plaintiff pays for their upkeep;”

36. Ms Trentelman commenced proceedings seeking the removal of the pool notation.

The manner in which the case was put by the Owners Corporation

37. As I indicated at the outset of this judgment, the Owners Corporation relied on a proprietary estoppel to assert its claim. That basis first seems to have been propounded in opening submissions in the Court below. Although it was objected to by senior counsel for Ms Trentelman, the Owners Corporation was permitted to put its case on that basis. The relevant portions of the opening submissions are as follows:

51   The OC relies upon both promissory and proprietary estoppel to the extent that there is a difference, asserting that the Trentelmans ought not be entitled to resile from the representation/promise that the OC/owners were to receive a legal interest in the pool and facilities in return for approval of the Trentelmans’ motions at the 2014 AGM (with the relevant documentation being prepared by the Trentelmans and executive committee of the OC).

…

56   The OC’s case is that the Court ought to find:

a.   The representations made by the Trentelmans at the 2014 AGM were sufficiently certain in the non-commercial circumstances with the relevant background.

b.   There was reasonable reliance in passing the Resolutions, and in the circumstances there ought to be a presumption of reliance – where ‘inducement by the promise may be inferred from the claimant's conduct, as is the case here, the onus or burden of proof shifts to the defendant to establish that the claimant did not rely on the promise.’

c.   The OC and owners/occupiers clearly suffered a detriment that was not insubstantial when the Trentelmans sought to assert that the easement had expired, at least by agreeing to the removal of the development lots and the consequent loss of levies from those lots.

d.   It was within the capacity of the Trentelmans, who controlled the 3 person executive committee, to ensure that the relevant documentation was completed to implement the representation to give indefinite access to the Pool, by transferring the land into common property, as they had done with the rooftop, or by granting a permanent easement for the benefit of the OC and owners.” (Footnotes omitted.)

Further findings of fact made by the primary judge and his conclusions

38. In addition to referring to the factual matters which I have outlined above, the primary judge referred to certain other matters which he considered relevant to the Owners Corporation’s claim.

39. In that context, his Honour referred to correspondence between the solicitor for Ms Trentelman and the solicitor for one of the unitholders, Mr Luddington, who was considering purchasing lot 7. In a letter dated 8 January 2015 from the solicitor for Mr Luddington to Ms Trentelman’s solicitor, she expressed the understanding that “the pool will remain on the proposed lot and our client [as purchaser] is to provide certain rights of use to the body corporate”. She also sought advice of whether the contents of resolutions the subject of motions 10 and 11 of the Annual General Meeting held on 28 July 2014 “are still the proposed way moving forward”, expressing the understanding that the current proposal was that the three lots “our client proposes to develop will form part of the current strata rather than a community association”.

40. In response, Ms Trentelman’s solicitor advised the pool would remain on the proposed lot 53 and, referring to motions 10 and 11, stated that it was resolved that the pool would become part of the common property and would remain part of the current strata. The primary judge (at [189] of the substantive judgment) rejected Ms Trentelman’s evidence that her solicitor’s statement was made without instructions as “far-fetched”, and declined to draw an inference that the solicitor misunderstood his instructions in the absence of him being called.

41. The primary judge stated that the evidence of the lot holders who attended the meeting was entirely consistent with the documentary evidence, particularly the notice of meeting for the 2014 Annual General Meeting. His Honour rejected the submission that the failure to call five other witnesses who had given affidavits meant that a Jones v Dunkel inference should be drawn against the Owners Corporation (Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8). His Honour (at [196] of the substantive judgment) described the failure to call these witnesses as “nothing more than a commendable attempt to save time”.

42. The primary judge (at [200]-[209] of the substantive judgment) also rejected the submission that the evidence of Ms Chatterjee, in which she stated that she agreed that what was being put forward was that there would not be interference with the “then existing” use of the pool, demonstrated that all that was said was that there would not be interference with the lot owners’ rights under the easement, and that no promise was made about access after the easement expired. His Honour stated that the submission had a number of difficulties. His Honour said that first, it overstated the significance of Ms Chatterjee’s evidence and it was never squarely put to her or any of the other witnesses the difference between a promise to respect the existing easement and a promise to give them the pool.

43. The primary judge stated that the second difficulty was that there were many other statements from the Owners Corporation witnesses which did not limit Mr Trentelman’s statement in the manner suggested. His Honour said (at [204] of the substantive judgment) that the third difficulty was that it was not supported by the Trentelmans’ own evidence, stating that Ms Trentelman spoke in terms of “continuing”, and “unaffected”, use, and the fourth difficulty was that an undertaking to allow access until the expiry of the easement was hardly worth making. His Honour also stated that the statements made by Mr Trentelman at the 2015 Annual General Meeting reinforced the point.

44. To this, it may be added that whilst Ms Chatterjee answered “yes” to the question, “Is it possible that what was said at this meeting was that the proposal that was being put forward would not interfere with the then existing use of the pool?”, she went on to say in the same answer, “there was no indication that there would be interference with the use of the pool at any time”. Ms Chatterjee’s answer thus does not give any support to the proposition.

45. In these circumstances, the primary judge stated (at [209] of the substantive judgment) that he was satisfied that at the 2014 Annual General Meeting, Mr Trentelman made representations to the effect that “‘we’ would give ‘you’ continued use of the pool”.

46. The primary judge found in these circumstances that the representations concerned continuing access into the future and were not limited to the then lot owners. His Honour stated (at [273] of the substantive judgment) that this was reinforced by the use of the indefinite term “owners” in the notice of meeting. His Honour stated (at [274]) that there was “no real distinction between a promise in favour of the members of the [Owners] Corporation as members, and a promise in favour of the [Owners] Corporation itself”. The primary judge pointed to s 8(1) of the Strata Schemes Management Act 2015 (NSW) and its predecessor, s 11(1) of the Strata Schemes Management Act 1996 (NSW), each of which stated that on incorporation, the members of the body corporate constituted the corporation. His Honour stated that the representations were binding on Ms Trentelman and were made in favour of the Owners Corporation.

47. However, the primary judge concluded that the passing of the resolutions did not give rise to a binding contract in the sense of an exchange of promises with immediately binding effect. In those circumstances, his Honour concluded that the Owners Corporation’s contractual claim failed.

48. The primary judge stated that proprietary estoppel of the nature of that described in Ramsden v Dyson (1866) LR 1 HL 129 extended beyond taking possession of land and laying out money on it to other types of detrimental reliance. His Honour noted that the representation did not clearly define the interest to be received but stated that did not prevent the doctrine from operating. His Honour stated that where the nature of the interest is unclear, the Court may fashion a remedy to do justice between the parties.

49. The primary judge noted (at [291] of the substantive judgment) that it was true that the parties contemplated that “formal dispositions would be drawn up and registered”. However, his Honour described the resolutions as “immediately effective to grant the necessary statutory approval” and conferred on the Strata Committee, including the Trentelmans, power to complete the transaction without reference back to the Owners Corporation in general meeting. His Honour stated that there was no relevant analogy with a representation made in the course of commercial negotiations which were conducted on the basis that neither party would be bound before the execution of a formal contract. His Honour stated that he did not think the events which took place occurred in a “commercial context”.

50. The primary judge rejected the submission that, as the five witnesses who gave evidence held only 19 per cent of the total unit entitlement and as only Ms Chatterjee expressly stated that the promise of continued access to the pool affected her vote, the Owners Corporation had not established that the representation concerning the pool had been relied upon. His Honour noted that in support of that submission, it was put that those attending the meeting could well have been influenced by other considerations, including the desirability of limiting the extent of the development on lot 7 (lot 53) and the preservation of views for the apartment building.

51. The primary judge stated that those submissions left out of account the fact that the representations about the pool were contained in the notice of meeting and presumably formed the basis of the decision of some members not to attend in person and vote by proxy. His Honour referred to his conclusion that no adverse inference should be drawn from the failure to call persons who attended the meeting as to what was said and stated that for the same reason, no adverse inference arose on the reliance issue. His Honour stated that the representations were calculated to adduce a favourable result, and a favourable result eventuated. His Honour expressed his conclusions in the following terms (at [302] of the substantive judgment):

“[302]   Plainly the Trentelmans decided in advance of the meeting to offer access to the pool as a ‘sweetener’. In fact, although they did not expressly say this to the meeting, they had decided not to proceed with the original development anyway. Presumably they judged that they needed to make a more substantial concession to the owners, and offered continuing access to the pool for that purpose. The representation was thus calculated to induce a favourable vote, and a favourable vote eventuated. I think that it is sufficient to establish an inference of reliance in fact.”

52. The primary judge referred to the fact that the Owners Corporation had identified the detriment as including entry into the subsequent transactions referred to in the resolutions and, in particular, the conversion and retransfer of the lots. His Honour agreed that the immediate cause of entry into those transactions was the entry into the November 2015 Deed (see at [230 above), but stated (at [306] of the substantive judgment) that it was “artificial” to say that the transactions did not take place as a result of reliance on the Trentelmans’ representations as it was those representations which induced the passage of the resolutions. His honour stated that there was thus a direct causal link between the conversion and retransfer and the representations. In these circumstances, the primary judge concluded that the Owners Corporation had made out its case for relief by way of proprietary estoppel. His Honour concluded that the appropriate form of relief was the grant of an easement. His Honour referred to the fact that the explanatory material which accompanied the notice of meeting referred to an easement, not a transfer of the pool land into common property.

52. In dealing with the pool notation, the primary judge referred to the fact that what was sought was an order that the Registrar-General be directed to use its power to remove errors and omissions on the register by removing the pool notation.

53. The primary judge noted (at [321] of the substantive judgment) the argument by Ms Trentelman that “the December 2014 plan of subdivision (including the pool notation) was inadequate to effect the transfer of the pool land to common property”. His Honour did not deal with this argument, having regard to the fact that the Owners Corporation accepted that even if its submissions were correct, it would only confer the pool as common property without the surrounding airspace and thus would provide no practical benefit to the Owners Corporation. His Honour also rejected rectification claims in respect of the pool notation raised by each of Ms Trentelman and the Owners Corporation.

54. In the subsequent judgment, the primary judge formulated the terms of the easement he proposed to order be granted. As the appeal was directed to the decision to grant an easement rather than its form, it is not necessary to refer to this judgment in any detail. However, the primary judge noted senior counsel for Ms Trentelman’s contention that he should make a declaration that the pool notation was invalid. His Honour noted that he had not made a finding in Ms Trentelman’s favour on the invalidity point and in those circumstances, he declined to make a declaration, stating that he would require the removal of the pool notation at the same time as the registration of the transfer granting the easement. His Honour stated that he would ensure it did not affect the costs outcome in Ms Trentelman’s proceedings.

55. In a further judgment (Trentelman v The Owners – Strata Plan 76700 (No 3); The Owners – Strata Plan 76700 v Trentelman (No 3) [2021] NSWSC 578 (the costs judgment)), the primary judge dealt with the cost issues in each set of proceedings. In relation to the Owners Corporation suit, his Honour made orders that the Owners Corporation receive a costs order in its favour, with the exception of costs thrown away by reason of an adjournment of the proceedings. No objection was taken to these orders if the appeal was otherwise dismissed.

56. In relation to the proceedings concerning the pool notation, the primary judge stated that Ms Trentelman’s claim for removal of the pool notation, or a declaration of its invalidity, and the Owners Corporation’s claim for rectification of the pool notation were “logically distinct” (at [43] of the costs judgment). His Honour rejected the proposition that Ms Trentelman’s claim had “really” succeeded despite the refusal of relief, as she had failed in her claim that the pool notation was a mistake and in her claim for a declaration. In these circumstances, his Honour concluded that Ms Trentelman should bear the costs of the proceedings with the exception of those solely referable to the cross-claim brought by the Owners Corporation for rectification of the register, and that the Owners Corporation should pay Ms Trentelman’s costs of defending that cross-claim.

The grounds of appeal

58. In the proceedings brought by the Owners Corporation, Ms Trentelman relied on the following grounds of appeal:

“1   The learned primary judge erred in finding that the Respondent ‘had made out its case for relief by way of proprietary estoppel’ (paragraph [310] of the substantive judgment) in respect of the swimming pool the subject of these proceedings.

2   More specifically the learned primary judge made the following errors in reaching the conclusion referred to in [1] above:

(a)   Concluding that the representation made on behalf of the Appellant that ‘we would give you continued use of the pool’ was directed to the Respondent (Owners Corporation) rather than to the individual lot owners of lots 9 to 48 in Strata Plan 76[7]00 who at the time of the meeting held an easement of use in respect of the pool (the ‘Benefited Lot Owners’) or (more probably) that the statement was not directed specifically or conclusively to either the Respondent or to the Benefited Lot Holders because the offer was, at this time inchoate as to whether the 'use' of the pool would be to the Benefited Lot Owners or would be to the Respondent;

(b)   Further, or in the alternative to paragraph 2(a) above, concluding (paragraph [209] of the substantive judgment) that 'at the 2014 AGM Mr Trentelman did indeed make representations to the effect that "we" would "give" "you" continued use of the pool' when the evidence did not warrant that conclusion, in the face of the variances in the statements made by each of the witnesses called by the Respondent;

(c)   Misconstruing the terms of a written Proposal that had been provided to the members of the Respondent as implying a promise by the Appellant to provide the use of the pool to the Respondent when on a proper construction of the Proposal it was recording a protection of the existing use of the pool by the Benefited Lot Owners;

(d)   In concluding (at paragraph [291] of the substantive judgment) that there was sufficient certainty in the representation described in paragraph [1(a)] above to found a claim of proprietary estoppel notwithstanding the conclusion (at paragraph [282] of the substantive judgment) that the Appellant ‘did not define in clear terms the interest which [the Respondent] would receive’ and (at [291] of the substantive judgment) that ‘the parties contemplated that formal dispositions would be drawn up and registered' and the uncertainty as to the identity of the benefit of any beneficiary of this offer;

(e)   By distinguishing the authorities of DHJPM Pty Ltd Blackthorn Resources (2011) 83 NSWLR 728 at [56]-[58] and [104]-[134] and Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247 at [175]-[177] on the basis (at paragraph [291] of the substantive judgment) that the act performed by the Respondent in exchange for the 'promised' interest in the pool had already been performed and on the basis that the proposed interest was not properly characterised as occurring in a ‘commercial context’;

(f)   Notwithstanding the finding that the Respondent ‘did not take possession of the pool land or lay out money on if' (at paragraph [281] of the judgment) nevertheless finding that the vote by the members of the Respondent to approve the ‘Proposal’ constituted sufficient detriment or change of position in reliance on receiving this interest in the pool;

(g)   Dismissing the argument by the Appellant that the Respondent's failure to call evidence that established that at least 25% of the members of the Respondent voted in favour of the proposition because (at least in part) they had relied on receiving an interest in the pool meant that the Respondent had not established reliance in the manner described in Sidhu v Van Dyke (2013) 251 CLR 505 at [61];

(h)   Failing to conclude that as there were considerable advantages to the members of the Respondent in accepting the Proposal that were unconnected with the use of the pool, such as substantially limiting the scope of future developments on lot 7 from that for which existing development approval had occurred and the removal of the development lots from Strata Plan 76700, then the Respondent's failure to call direct evidence of reliance meant that an inference to that effect could not be drawn in favour of the Respondent;

(i)   Notwithstanding the finding at [281] of the judgment that the Respondent ‘did not take possession of the pool or lay out any money on it’ nevertheless found that an act of 'reliance', sufficient to establish proprietary estoppel, was the passing of motion 10, instead of finding that at its highest the passing of this motion represented nothing more than the Respondent performing an act in return for a promise by the Appellant to offer of an interest in property that the Respondent was free to reject. That is to say the necessary requirement that the Appellant's conscience be affected by the knowledge that the Respondent had acted to its detriment in reliance on the understanding that it was receiving an interest in land was not present.

3   The learned primary judge erred in making orders in the form in which those orders were made, when the findings did not support such orders.

4   More specifically the learned primary judge made the following errors in making the orders referred to in [3] above:

(a)   Making a declaration in terms of order 1, when there was no utility to such a declaration as no damages had been claimed as part of the proceedings, and the learned trial judge made no finding as to the date (in the past) at which the equitable interest arose.

(b)   Making an order in the nature of an injunction, in terms of order 2, when there was no power, or cause of action on which to base the injunction, absent an existing registered easement to support such an order.

(c)   making an order in terms of order 3 in the form of the obligation to grant an easement on the terms in Annexure A to the form of orders, when those terms of the easement did not arise from the findings of the learned primary judge (paragraph [314] of the substantive judgment), which required, as ‘the proper form of relief ... an easement in favour of the Corporation in the same terms, or substantially the same terms, as the previous easement.’”

59. In proceedings concerning the pool notation, Ms Trentelman relied on the following grounds:

“1   The primary judge erred in making orders dismissing the proceedings the subject of the Appellant's Statement of Claim, when the findings by the primary judge did not support such orders.

2   The primary judge erred in failing to make the orders sought by the Appellant, in circumstances where the primary judge found (paragraph [324] of the substantive judgment) that the First Respondent had conceded that ‘the structure of the pool, without the surrounding airspace’ was of no utility to it and found at [333] that the pool notation was ‘no use to the Corporation.’

3   In the alternative to ground 2, the learned primary judge erred by failing to make a finding as to the lack of legal effectiveness of the notation on strata plan of subdivision 91510 (paragraph [318-324] of the substantive judgment).”

The submissions

a   Ms Trentelman

60. Senior counsel for Ms Trentelman stated that the appeal against the decision in the proceedings brought by the Owners Corporation had two aspects. First, he submitted that the primary judge erred in inferring reliance by the Owners Corporation to establish proprietary estoppel, and second, that there was insufficient certainty as to whether any interest in the land was to be created, and if so, in whose favour to satisfy the requirements for a proprietary estoppel.

61. He contended that to succeed, the Owners Corporation had to establish two matters. First, that the respondent as distinct from the actual lot owners who were the beneficiaries of the existing easements, formed an assumption that it would receive a proprietary interest in the swimming pool, and second, that the respondent had relied on that assumption.

62. Senior counsel for Ms Trentelman submitted that when it was understood that the relevant act of reliance was the vote on motion 10, the question was whether the respondent had established by direct evidence or inference that at least 25 per cent of its members voted in favour of the resolution because they understood that the respondent, and not them personally, would be receiving an interest in land. He submitted that if any right existed, it would be in the lot owners personally who would have been the correct parties to have brought the action.

63. Senior counsel for Ms Trentelman (referring to his written submissions in reply) stated that there were eight matters which demonstrated that an inference of the type found by the primary judge could not be drawn. The first of these was that it was not obvious what the lot owners would understand from the representation found by the primary judge, “we will give you continuing use of the pool” and, in particular, whether the Owners Corporation was to be given a proprietary interest. He submitted that what was most likely to have been understood was an extension of the existing easement which would not have been for the benefit of the Owners Corporation.

64. The second matter relied upon was that as the existing easement was not in favour of the Owners Corporation but only in favour of lots 9-48, it was not clear that members of the respondent would have understood that the Owners Corporation was receiving a proprietary interest in the pool, as distinct from their own existing easement being extended. Senior counsel in this context referred to the finding of the primary judge (at [144] of the substantive judgment) that lot owners, Mr and Mrs Lofthouse, Mr Kelly and Mr Luddington knew of the easement. Senior counsel referred to evidence given by Mr Luddington to the effect that he believed that everyone was fully under the impression that the easement would be renewed. He also referred to the evidence of Mr Kelly (see at [24] above) that he believed “we would either get the pool by common property or an extension of the easement” and that, at the time of the meeting, his understanding was that the most likely means by which the owners would get continuing use of the pool was by an extension of the existing easement. He also referred to the evidence of Mr Lofthouse that he understood there would be an extension of the existing easement so it would become indefinite.

65. He also referred to what was said in an email from Mr Kelly to other lot holders after the 2017 Annual General Meeting. The email contained the following remarks:

“Outside of official BC business a group of owners have approached Ian McKnight of Clarke Cann Lawyers to renegotiate the pool easement so that owners can have some continuity re the use of the pool. Ian will begin those discussions with the Trentlemens [sic] along the lines that they (the Trentlemens [sic]) had previously agreed to renew this easement when they were putting together the development application for the townhouses and as per the minutes of the 2014 AGM.”

66. In that context, senior counsel for Ms Trentelman referred to the terms of the existing easement and particularly the provision requiring lot owners of the dominant tenements to bear the cost of operation, repair and maintenance of the pool. He pointed out that what was proposed in the easement ordered by the primary judge was a permanent easement which he submitted raised the question of what was going to happen in respect of the capital costs of replacing the pool. He stated that there was never any discussion or vote concerning this issue.

67. The third matter relied upon was that there was no contractual obligation to offer a proprietary interest in the pool. Senior counsel for Ms Trentelman submitted that Ms Trentelman was not obliged to proceed with the proposal. He submitted that the effect of the resolutions were that if she did proceed with the proposal, the Owners Corporation was to execute documents to give effect to the right to continued access to the pool. He submitted first, that whether that would be by means of an easement or some other way was not specified, and the reference to continuing access should be understood as continuing access to existing beneficial lot owners, not the Owners Corporation.

68. The fourth matter raised was that the primary judge should not have drawn the inference he did because of the need for formal dispositions to be negotiated and registered. Aligned to this were the fifth and sixth matters on which reliance was placed, namely, that the Owners Corporation was free to reject the easement if the consequential obligations that went with that interest, particularly the likely cost associated with the grant of such an easement, including the cost to maintain the pool and the capital costs of replacement of the pool, had not been considered by members.

69. Senior counsel for Ms Trentelman referred to the finding by the primary judge to this effect (see at [49] above) and to the fact that the witnesses who were called accepted the suggestion that documents would need to be executed and there would be negotiation of payment of expenses. He noted that as the primary judge found (at [148] of the substantive judgment), each of Mr Luddington, Ms Chatterjee and Mr Kelly accepted the possibility that lot owners could refuse the easement because of the cost, although the primary judge found that this did not cross their mind at that time. Senior counsel for Ms Trentelman submitted that it was not to the point that it did not cross their minds, but that they understood that before any interest in land could be created, there had to be an offer made that they could accept or reject, which meant that they could not reach the conclusion the Owners Corporation would necessarily receive any interest in land.

70. The seventh matter on which reliance was placed was the fact there was a significant advantage to the lot owners having a smaller scale development on lot 7.

71. Senior counsel for Ms Trentelman pointed to the conclusion reached by the primary judge, which I have set out at [46] above. He submitted that the critical part was that if continuing use was discussed, it was likely to refer to the existing easement and that contrary to the conclusion reached by the primary judge, there was a very real distinction between a promise in favour of members of the Owners Corporation and a promise to the Owners Corporation itself in the context of continuing use of an easement granted to members of the Owners Corporation.

72. The eighth matter upon which reliance was placed was that more than 75 per cent of the voting entitlement of members of the Owners Corporation did not give evidence that representations regarding the pool caused them to understand that the Owners Corporation would be receiving a proprietary interest, or that it was relevant to their decision to vote in favour of the resolutions. Senior counsel for Ms Trentelman stated that whilst he accepted statements such as those made by Ms Chatterjee could be described as “self-serving”, he submitted that there was no admissible evidence of the extent the pool was used or why it was important, nor evidence as to how many lot holders used the pool regularly and what they thought of the cost of maintaining it.

73. Senior counsel for Ms Trentelman criticised the reasoning of the primary judge which I have set out at [51] above. He submitted that what he said about different reasons for voting in favour of the resolutions applied with equal force, irrespective of whether the representations were written or oral. He submitted that the conclusion that the representations may have induced the unit holders to vote by proxy was speculative.

74. In dealing with the special resolution the subject of motion 10, senior counsel for Ms Trentelman emphasised its bipartite nature. He submitted that what was being referred to in subpar (vi) was “prophylactic protection of the existing easements”. He submitted that the language was not the language of the Owners Corporation accepting any easement. He referred to the words “surrender or creation of such easements”, submitting it would not be necessary to deal with the surrender of an easement if what was promised was the creation of an easement.

75. Senior counsel for Ms Trentelman accepted that the words “continuing use” could have meant the extension of the existing easement into the future. He submitted, however, that it did not refer to the “creation of some entirely new use”, noting that it referred to the owners and occupiers of the lots rather than the Owners Corporation. He submitted that the effect of the resolution was that if the owner or occupier’s rights to the easement or any extension was going to be affected by the parcels of land moving in and out of the common property, then the Owners Corporation was authorised to execute such documents as were necessary to protect the rights of the lot owners. He also submitted that the reference in the explanatory note to “owners and occupiers” supported what he described as the “prophylactic purpose” of the resolution.

170. Ms Trentelman’s submissions did not challenge the large majority of findings of primary fact. That reflected the conclusions of the primary judge that he was “generally unimpressed with the reliability of the Trentelmans’ evidence” (at [171]) and “left with the impression that [Ms Trentelman] had little if any actual recollection of events”: at [174]. I do not doubt that Ms Trentelman appreciated the difficulties confronting appellate challenge to findings to which demeanour had contributed. Instead, Ms Trentelman’s submissions focussed upon the inchoateness of the proposal put forward by the Trentelmans, the difference between a property right owned as common property by the owners corporation and a property right owned by individual lot holders, the owners corporation’s failure to call more than a minority of lot holders to explain why they voted in favour of the proposal in July 2014, and the absence of the lot holders as parties to the litigation.

171. The matters raised by Ms Trentelman may be analysed on at least two levels. I think the correct level is reflected in the parties’ detailed submissions, which I shall address below. But at a higher level, it is as well to bear in mind that the owners corporation is an artificial person, that the meeting giving rise to the estoppel found by the primary judge was that artificial person’s annual general meeting, and that the distinction between property owned by the owners corporation as agent for the lot holders and property owned by individual lot holders directly is a fine one, as a result of all of which there is a degree of artificiality in seeking to propound the distinctions on which Ms Trentelman relies.

172. As the Chief Justice explains, the Trentelmans wanted to secure the passage of a special resolution, involving a strata re-subdivision and then a transfer of common property to themselves. The ability of lot holders to withhold their consent to the resolutions propounded by the Trentelmans was, unquestionably, a valuable right (see for example Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46 at 59). On the other hand, the lot holders wanted to enjoy the continuing use of the swimming pool, which, at the time, was achieved by registered easement over the land occupied by the pool in favour of nearly all other lots, but which expired in October 2017.

173. The primary judge found (at [209]), after a careful examination of documentary and testimonial evidence (at [178]-[208]), that at the 2014 annual general meeting Mr Trentelman represented that “We will give you continued use of the pool”. The documents circulated for the purpose of the resolution left the details for subsequent negotiation. There were a number of ways of conferring a secure entitlement on the part of lot holders to use the swimming pool. One was for there to be an easement in favour of the lots, as was the case at the time the representations were made; in that case, the entitlement to enjoy the pool flowed directly from the easement. Another was for the swimming pool to become part of the common property.

174. There is a measure of artificiality in a submission which seizes upon the need to join the lot holders, as opposed to the owners corporation, in order to enforce and vindicate a right. If the submission were well-founded, it would have been cured by a representative order under UCPR r 7.6. Further, for many decades, rules of court have provided that no proceeding has been defeated merely because of misjoinder or non-joinder: see Boyd v Thorn (2017) 96 NSWLR 390; [2017] NSWCA 210 at [96]-[99]; the current rule is UCPR r 6.23.

175. There is also a measure of artificiality in a submission that it was “not sufficiently clear objectively (both as to whom the representation is being made and as to the legal form of the ‘use’)” so as to found an estoppel. The clarity and precision now emphasised contrasts with the position in 2014 on both counts. In terms of the “legal form of the use”, the primary judge found at [42] that lot holders were charged maintenance costs for the swimming pool as if it were on common property, although (most) lot holders’ rights were based on an easement entitling them to use the pool on Ms Trentelman’s privately owned land, and although lots 49, 50 and 51 did not enjoy the benefit of an easement at all. There was thus at the time of the annual general meeting a blurring of the distinction between common property and private lot. In terms of “as to whom the representation is being made”, the submission leads to an even more artificial distinction. How does the Court identify whether the people who actually heard the Trentelmans speak at the annual general meeting and read the documents circulated by them did so in their personal capacity as lot holders or in their constitutive capacity as an organ of the owners corporation – assuming (favourably to Ms Trentelman) that the distinction is one which has legal significance, bearing in mind that the lot holders collectively constituted the owners corporation?

176. Corporations act through agents. A representation made to a corporation is made to one or more natural persons whose understanding of the representation is imputed to the corporation. If a corporation relies on a representation, it is because one or more natural persons rely on it and their reliance is treated as that of the corporation. Normally, before analysing whether an act or state of mind of a natural person is to be treated as that of the corporation, one asks what is the purpose of the inquiry. That was the point emphasised in Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 at 507 when Lord Hoffmann stated that the question was “Whose act (or knowledge, or state of mind) was for this purpose intended to count as the act etc of the company?” (original emphasis), a point reiterated by Professor Worthington, “Corporate Attribution and Agency: Back to Basics” (2017) 133 Law Quarterly Review 118 at 118-120 and 124-131. There may be a question whether all aspects of the principles governing corporate attribution apply to a general meeting. I pass over that question for the purposes of this appeal; all that matters is that the starting point remains to consider why it is necessary to impute an act or knowledge or state of mind to the corporation.

177. Often these questions arise when statute imposes civil or criminal liability upon a company which turns on a mental state. In the present case, the purpose of the inquiry was proprietary estoppel in equity. Equity’s regard for substance over form causes me to doubt the submissions which turn on the fine distinctions on which Ms Trentelman relies. It is useful to bear in mind the illustration of the administration of equitable principle given by a unanimous High Court in Jenyns v Public Curator (Q) (1953) 90 CLR 113 at 119; [1953] HCA 2:

“A court of equity takes a more comprehensive view, and looks to every connected circumstance that ought to influence its determination upon the real justice of the case.”

180. That is not to deny the significance of the distinct legal personality of the owners corporation, or the real juristic difference between treating the land on which the swimming pool was built as common property as opposed to easements over that land benefitting the individual lots. Nor is it an invitation to depart from orthodox legal analysis; the “real justice of the case” is not to be understood as some subjective evaluation of injustice or unfairness. As was said in Jenyns itself, and more recently emphasised in Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392; [2013] HCA 25 at [18], “The invocation of the conscience of equity requires ‘a scrutiny of the exact relations established between the parties’ to determine ‘the real justice of the case’.” I shall attempt to analyse the exact relations between the parties below, although that is not without its difficulty. But the result of the analysis in the parties’ detailed submissions is to confirm the tentative working assumption which flows from what has already been said: both procedurally and substantively, the rather technical objections advanced by Ms Trentelman do not carry weight.

181. I shall deal with each aspect of the submission in turn. But it is convenient first to analyse “the exact relations” established between lot holders and the owners corporation in relation to the common property under a strata scheme.

The relationship between owners corporation and lot holders

182. The legislative regime creating the individual lots, the common property and the owners corporation is now somewhat different from that in place when the owners corporation was created.

183. Strata Plan 76700 was registered in 2006. At that time, s 11(1) of the Strata Schemes Management Act 1996 (NSW) provided that the owners of the lots from time to time constituted a body corporate under the name “The Owners – Strata Plan No 76700”. The legislation provided (in Schedule 2) for meetings of lot owners at which ordinary and special resolutions of the body corporate could be passed, but made further provision for the owners corporation to act by an executive committee. Such a committee was mandatory (s 16), and its decision was (speaking generally) “taken to be the decision of the owners corporation”: s 21(1). The owners corporation and all owners, lessees and occupiers were bound by the by-laws “as if the by-laws had been signed and sealed by the owners corporation and each owner and each ... lessee and occupier”: s 44(1). The by-laws thus resembled the deemed contract binding members of companies to which the Corporations Act 2001 (Cth) applied but went further insofar as they also bound lessees and occupiers (the Corporations Act did not apply to the body corporate created by s 11(1), by dint of s 11(2) read with s 5F of the Corporations Act).

184. Section 20 of the Strata Schemes (Freehold Development) Act 1973 (NSW) vested the common property in the body corporate “as agent” for the proprietors of the lots as tenants in common in shares proportional to their unit entitlements. Section 24(2) of the latter statute provided that “[t]he beneficial interest of a proprietor of a lot in the estate or interest in the common property, if any, held by the body corporate as agent for that proprietor shall not be capable of being severed from, or dealt with except in conjunction with, the lot”.

185. A series of decisions culminating in Owners – Strata Plan No 43551 v Walter Construction Group Ltd (2004) 62 NSWLR 169; [2004] NSWCA 429 at [42]-[45] held that the word “agent” in ss 20 and 24 was not used in the technical sense of the law of agency at common law, that the owners corporation was not the beneficial owner of the common property and that the lot owners had a beneficial interest in the common property as tenants in common with other lot owners. To the same effect, in EB 9 & 10 Pty Ltd v The Owners Strata Plan 934 (2018) 98 NSWLR 889; [2018] NSWCA 288 at [31], Barrett AJA with the agreement of Meagher and Gleeson JJA endorsed what had been said by White JA in McElwaine v The Owners Strata Plan 75975 [2017] NSWCA 239; 18 BPR 37,207 at [37]:

“The interest of a lot owner in the common property is an equitable interest as a tenant in common with other lot owners. The relationship between the owners corporation as legal owner of the common property and the lot owners as beneficial tenants in common is that of trustee and beneficiary or analogous thereto.”

186. All those proceedings concerned the earlier legislation. Indeed, in EB 9 & 10 Pty Ltd there was immaterial error by the trial judge in treating the proceedings as arising under the Strata Schemes Management Act 2015 (NSW): see at [5].

187. The current form of the legislation (the Strata Schemes Development Act 2015 (NSW) and the Strata Schemes Management Act 2015 (NSW)) is slightly different. So far as I can see, nothing turns on the fact that the owners corporation originally constituted under s 11 of the 1973 Act is now taken to have been constituted under s 8 of the Strata Schemes Management Act 2015 (by virtue of Schedule 3 cl 5). Potentially more significant is the altered language defining how the owners corporation holds common property. Section 20 and s 24(2) of the Strata Schemes (Freehold Development) Act 1973 appear to have been re-enacted as ss 28(1) and (2) of the Strata Schemes Development Act 2015:

“28 Holding common property and dealing with lots and common property

(1) The owners corporation of a strata scheme holds the common property in the scheme as agent for the owners as tenants in common in shares proportional to the unit entitlement of the owners’ lots.

(2) An owner’s interest in the common property cannot be severed from, or dealt with separately from, the owner’s lot.”

(Subsection 28(3), which concerns dealings or caveats relating to an owner’s lot affecting the owner’s interest in the common property without express references, is similar to s 24(1) of the Strata Schemes (Freehold Development) Act 1973.)

188. Thus the language of the owners corporation holding “as agent” is continued, but the reference to “beneficial interest” in former s 24(2) has been replaced by “interest”. The separation of legal and beneficial interest is a hallmark of the splitting of legal and equitable title which occurs in a trust, and in the decisions mentioned above, the language of “beneficial” interest was explicitly relied upon in order to characterise the relationship between owners corporation and lot holders as a trust or analogous to trust: see Carre v Owners Corporation – Strata Plan 53020 (2003) 58 NSWLR 302; [2003] NSWSC 397 at [29]; Lin v The Owners – Strata Plan No 50276 [2004] NSWSC 88; 11 BPR 21,463 at [7]; Owners – Strata Plan No 43551 v Walter Construction Group Ltd at [42]. The same difference appears in the Community Land Development Act 1989 (NSW) and the Community Land Management Act 1989 (NSW); I adverted to the difference without expressing a view as to its effect in Community Association DP270447 v ATB Morton Pty Ltd [2019] NSWCA 83 at [84]-[85]. It may be noted that in Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185; [2014] HCA 36 at [152] Crennan, Bell and Keane JJ said that the position was “debatable”.

189. What is the legal effect of a substantial re-enactment of the provisions governing how the owners corporation holds common property, but deleting the word “beneficial”? Does it mean that common property is no longer owned by the owners corporation as a trustee or in a way which is analogous to a trustee?

190. On the one hand, it might seem to be a strange result if doing so effected a substantive alteration to the way in which owners corporations held common property, such that the beneficial interests of individual lot holders upheld in the decisions referred to above altered upon the commencement of the 2015 statutes. It might also be a strange result if the interests of individual lot holders under a strata scheme registered prior to the commencement of the 2015 statutes were in a different position from lot owners whose strata schemes came into existence under the current legislation.

191. On the other hand, it would also seem strange if no significance was attributed to the Legislature’s decision to replace “beneficial interest” by “interest”. The prima facie position is that the re-enactment of statutory language in altered form after it acquires a settled meaning is to be taken to have a different meaning: see Maraya Holdings Pty Ltd v Chief Commissioner of State Revenue [2013] NSWCA 408 at [78]-[79] and Meskovski v Director of Public Prosecutions [2018] VSCA 293 at [92]-[95], both referring to Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [43], and P Herzfeld and T Prince, Interpretation (2^nd ed, Lawbook Co, 2020), pp 170-171. As the latter work observes, the strength of the presumption will depend on the circumstances.

192. Little assistance is gained by examining the counterpart legislation in other Australian jurisdictions, although they were influenced by the New South Wales innovations (the background is described in Vickery v The Owners – Strata Plan No 80412 (2020) 103 NSWLR 352; [2020] NSWCA 284 at [125]). Section 10 of the Strata Titles Act 1988 (SA) expressly provides that the common property is held by the strata corporation in trust for the unit holders, as does s 10 of the Strata Titles Act 1998 (Tas). In Queensland and Victoria, common property is vested by the lot owners as tenants in common in shares proportionate to their lot entitlements: Body Corporate and Community Management Act 1997 (Qld), s 35; Subdivision Act 1988 (Vic), s 30. Not only is there variety in the statutory regimes, but the differences illustrates how the basal legislative purpose of giving a form of direct or indirect co-ownership, whereby the lot owners can share the benefits and burdens of the common property, can be effected in a number of ways.

193. It is quite possible to place too much store on abstract questions such as that posed above, although to my mind at least it is the natural starting point. Even if the Legislature had used the word “trust”, that would not necessarily determine the precise issue that arose in a particular case. The word “trust” is generally but not invariably taken to be used in its technical sense, as was noted in Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566; [1998] HCA 59 at [45] and as the outcome of that appeal confirms.

194. A very similar issue arose in Ayerst v C&K (Construction) Ltd [1976] AC 167. There, Lord Diplock writing for the House of Lords explained at 180-181 that references in statutes to “beneficial owner” and “beneficial ownership” did not necessarily connote a trust. By way of further example, in In re MF Global Australia Ltd (in liq) [2012] NSWSC 994; 267 FLR 27 at [149], Black J considered that the statutory trust created by s 981H of the Corporations Act did not entail the ordinary right of indemnity enjoyed by a trustee. Those examples illustrate the truth that often the relevant question is one which is less general and less abstract and is closely connected with the precise context in which the question arises.

195. Ultimately it may not much matter whether the owners corporation owns common property as a trustee, or in a way that is analogous to a trustee, as an abstract legal proposition. What is required is an analysis of the relationship between owners corporation, lot owners and common property in the particular context in which the issue arises. The three matters identified above arising from Ms Trentelman’s submissions concern the procedural law as to necessary parties, and the elements of proprietary estoppel concerning the certainty of representations and establishing reliance upon them.

Absence of the lot holders as necessary parties

196. The primary judge had regard to the constitution of the litigation when ordering an easement in favour of the owners corporation (which was a party) rather than the lot owners (who were not). Ms Trentelman contended that the lot owners personally should have been parties to the litigation. That submission was advanced both at trial and on appeal.

197. This problem is created by statute creating an artificial person which owns the common property. It is also solved by statute. Section 254 of the Strata Schemes Management Act 2015 (NSW) provides as follows:

“254 Owners corporation may represent owners in certain proceedings

(1) This section applies to proceedings in relation to common property.

(2) If the owners of the lots in a strata scheme are jointly entitled to take proceedings against any person or are liable to have proceedings taken against them jointly, the proceedings may be taken by or against the owners corporation.

(3) Any judgment or order given or made in favour of or against the owners corporation in any such proceedings has effect as if it were a judgment or order given or made in favour of or against the owners.

(4) A contribution required to be made by an owner of a lot to another owner in relation to the judgment debt is to bear the same proportion to the judgment debt as the unit entitlement of the contributing owner bears to the aggregate unit entitlement.”

198. Such a provision has been present in the legislation since at least 1973 (see s 147 of the Strata Titles Act 1973 (NSW)).

199. Mr Ashhurst conceded, very properly, that Ms Trentelman’s proceedings concerning the notation were proceedings in relation to common property within the meaning of s 254(1). However, he said that the proprietary estoppel claim was not.

200. There are two answers to that submission. The first is that, as it happens, the owners corporation itself was, as owner of the common property, one of the dominant tenements of the existing easement. This came about because of the subdivision of what had been lot 9 into the caretaker’s unit and the car park and the rooftop veranda in circumstances where lot 9 had been one of the dominant tenements of the easement as originally created. This gave rise to a debate about the application of the principles stated in Gallagher v Rainbow (1994) 179 CLR 624 at 632-634; [1994] HCA 24, as to the circumstances in which the benefit of an easement enures when the land benefited by it is subdivided. The general rule is that the benefit enures to all of the subdivided lots, unless the distribution of the benefit of the easement would be at variance with the actual or presumed grant under which the right was acquired, to pick up the language of Goddard, A Treatise on the Law of Easements (8^th ed, Stevens and Sons Ltd, 1921), p 392 which was endorsed in Gallagher v Rainbow. Applying that rule, the newly created lot which became owned by the owners corporation obtained the benefit of the existing easement, which was expressed generally, with the dominant tenement described as “[Lots] 9-48/sp79344” and on terms that “The lots in the dominant tenement shall bear the cost of operation, repairs and maintenance of the pool and surrounding facilities in the proportions of their unit entitlement in SP79344”. I would add that there is no reason to doubt that the land occupied by the car park, which was after all immediately adjacent to the swimming pool, was not continuing to enjoy the benefit of the easement.

201. That first answer to the submission comes about by the happenstance that one of the lots benefitted by the existing easement had been subdivided, and part of the land had become common property.

202. The second answer is that s 254 is engaged directly, irrespective of the subdivision referred to above. The reasoning leading to that conclusion may be summarised as follows.

1. The primary case advanced by the owners corporation in its proceedings was a claim in contract. It sought a declaration that the pool and structures were part of the common property of the strata scheme as its first prayer for final relief. It sought consequential orders (involving the execution and administering of documents) in order to achieve the result in that declaration. That claim failed and was not reagitated on appeal.

2. I am inclined to think that the claim in contract of itself would suffice to engage s 254(1), even if the alternative claim in estoppel was unconnected to common property. After all, whether or not s 254(1) is satisfied does not turn on the particular causes of action advanced in a proceeding, but on the character of the proceedings. That is the force of s 254(1) providing that the section applies if the “proceedings” are in relation to common property.

3. But in any event, the estoppel claim also falls within the description of being “in relation to common property” for the purposes of s 254(1). The owners corporation’s fallback case in estoppel was pleaded on the basis that for some years Ms Trentelman and the lot owners adopted a common position that the pool would be permanently accessible by owners and occupiers of lots by (a) using the pool, (b) including the notation, and (c) representing that lots had such a continuing entitlement. The notation was on the plan of subdivision that “the inground pool and auxiliary structures (shed, concrete, fencing etc) located within lot 53 cubic space are common property”. One of the prayers for relief based on the claim for estoppel was that Ms Trentelman do all things reasonably necessary “to ensure that the Pool and Structures, including the land and airspace above and below them to an unlimited height and depth, become common property”.

4. Of course, the contract case failed and was not re-agitated in this Court, and there was and is a dispute as to whether the estoppel is made out and if so what relief is appropriate. But whether or not s 254 applies does not turn on the outcome of the litigation. How could it? The question of parties is to be addressed when proceedings are commenced, not after they have been determined. The matter may be tested this way. Suppose an owners corporation brought proceedings saying that a particular parcel of land was part of the common property, but was unsuccessful. That failure would not prevent the proceedings from being “in relation to common property”, nor would it prevent the operation of s 254(3) binding individual lot holders to the result achieved by that judgment. Whether proceedings are “in relation to common property” turns on the parties’ claims, not the outcome of the litigation.

5. Finally, s 254 serves a beneficial purpose of providing a straightforward means of prosecuting litigation which affects the common property and therefore, indirectly, all of the lot owners. The legal meaning of the words “in relation to common property”, no differently from any other relational term, turns on the statutory context and purpose: The Queen v Khazaal (2012) 246 CLR 601; [2012] HCA 26 at [31]. No narrow construction should be given to the relationship required by those words in the present context, which are applicable to thousands of strata schemes, in which hundreds of thousands of people live and enjoy the use of common property.

203. In short, the effect of s 254 is that the lot owners are bound by the litigation, but they were neither necessary nor proper parties.

Uncertainty of the representation

204. The gravamen of these submissions was that there was vagueness in the terms of the promise, which expressly contemplated further details being agreed, and which extended to uncertainty as to whether the continued enjoyment of the swimming pool would be effected by an extension of the existing easements benefitting lot holders, as opposed to the easement benefitting the owners corporation ordered by the primary judge.

205. Mr Ashhurst contended that “proprietary estoppel cannot lie when it is uncertain as to whether any interest in land is to be created as distinct from uncertainty as to the form of the interest in land”. He prayed in aid Lord Kingsdown’s (influential albeit dissenting) speech in Ramsden v Dyson (1866) LR 1 HL 129 at 170 with its reference to a verbal agreement for “a certain interest in land”. As the Chief Justice explains, neither side to this litigation had an especially precise understanding of the legal relationships or conveyancing concepts. The issue is resolved by looking at the substance of what was said to the particular audience and what would have been understood by that particular audience.

206. Much the same point was made in this Court’s decision in Evans v Evans [2011] NSWCA 92 at [116], on which the owners corporation relied, in circumstances where as here a precise legal analysis would be both difficult and foreign to those relying on the estoppel:

“While professional training would impel a lawyer to seek to impose a legal categorisation on the $200 per week, Peter was a builder and Sophie was a clerk in an accountant’s office - there was no reason to expect them to think like lawyers. Accordingly, their understanding was not in terms that they had been given an ‘absolute beneficial interest’ - that is lawyers’ language, and foreign to their way of thinking. The upshot of their evidence is that their understanding was that they had been given the house, and that they had the obligation to make the payments. They organised their lives around that understanding for decades. It would be belittling for a lawyer to denigrate or deny the reality of their understanding on the basis that it did not fit into a lawyer’s categories of analysis. An equity concerning proprietary estoppel arises by virtue of the expectations that the plaintiffs actually had, that were induced or encouraged by the defendant and on which the plaintiffs actually acted to their detriment. Those are questions of fact, not of legal analysis.” (original emphasis)

207. When the 2014 annual general meeting took place, it would be quite difficult to give a complete legal analysis of the way in which lot holders enjoyed a right to use the swimming pool. A complete analysis would require accounting for the facts that the costs were charged as if the pool were common property, and were charged not merely to lots owners whose lots enjoyed the benefit of the easement, but also to the owners of lots 49, 50 and 51. The representation “we will give you continued use of the pool” clearly and unequivocally conveyed a continuation of the status quo, and did not descend to the details of how that would be effected. I do not think it is useful to inquire into the distinction between the formal ownership of the swimming pool as common property of the owners corporation as agent for lot holders (which approximated the current position in practice) or a continuation of easements directly in favour of individual lots, presumably extended to include lots 49, 50 and 51 (which was the formal position). Either approach achieved the same end. The fact that the words spoken by Mr Trentelman, and the essence of the inducement offered in exchange for passage of the special resolution did not descend to the details does not stand in the way of an estoppel. The Chief Justice has summarised many of the authorities establishing that the certainty required by the law of contract is not necessary. As Brooking JA observed in Flinn v Flinn [1999] 3 VR 712; [1999] VSCA 109 at [95], after extensive reference to the authorities,

“Time and again an equity has been held to exist where no contract had arisen, the court often going a long way in giving effect to what the law of contract would ignore as an impossibly loose arrangement. The present case lies within the reach of the long and flexible arm of equity.”

208. Ms Trentelman correctly accepted that the present case was something of a hybrid between what might be described as a “commercial” case as opposed to a “domestic” case. There were no familial relationships involved, yet the representations concerned what for some lot holders was their home, and a relatively unsophisticated approach appears to have been taken. I accept Mr Ashurst’s submission:

“[W]e say that sometimes … talking about whether it’s a commercial or a domestic relationship sometimes obscures the real point. The real point being, did they understand that there had to be further negotiations and a formal creation of documentation before their interest was created?”

209. This accords with Gleeson JA’s observation in Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105 at [178] as to the limitations of the distinction between commercial and domestic relationships, and the importance of examining the circumstances of the particular case, rather than relying on a shorthand label. As the Chief Justice explains, in this particular case, the point that aspects of the promised entitlement to use the pool remained to be settled does not stand in the way of an estoppel. That was not reflected in the tenor of the documents presented at the meeting and is inconsistent with the reality that the Trentelmans controlled the Strata Committee.

Reliance

210. I only wish to add to what the Chief Justice has said in relation to one aspect of this part of the appeal. Ms Trentelman placed reliance upon Lord Blackburn’s speech in Smith v Chadwick (1884) 9 App Cas 187, especially at 196:

“And whenever that is a matter of doubt I think the tribunal which has to decide the fact should remember that now, and for some years past, the plaintiff can be called as a witness on his own behalf, and that if he is not so called, or being so called does not swear that he is induced, it adds much weight to the doubts whether the inference was a true one.”

211. Smith v Chadwick is far removed from the present case. Mr Smith brought proceedings for deceit based upon a statement in the prospectus, namely, that “the present value of the turnover or output of the entire works is over £1,000,000 sterling per annum”. The trial before Fry J was conducted over some five days, during which an interrogatory administered to Mr Smith was tendered. Its effect may be seen from what is recorded in the decision of the Court of Appeal:

“That being so, I come to consider this: What does the Plaintiff tell us as to the effect of the representations on his mind? Here we have an answer to the interrogatories, and I must say it is not the answer I should have expected to get from a man who comes into Court and says, I have been deceived by false representations, and thereby induced to enter into a contract. I should expect him to say: ‘I was deceived by such and such false representations.’ But he will not say it. He is interrogated as to what he understood the thing to mean, and this is his answer. Having given a long string of alleged misrepresentations, he says: ‘As to each and every of the allegations of misrepresentations contained in the statement of claim, First, I understood the meaning of such misrepresentations respectively to be that which the words composing them obviously convey, and I am unable to express in any other words what I understood to be the meaning thereof.’ Is a man to come into Court with such a statement as that? It means this, ‘You please to find out what the words mean, and that is how I understood them.’ I must say that I do not think that is dealing fairly with the Court, nor is it dealing fairly with the Defendants. I agree that if there are any obvious misstatements he is entitled to rely upon them, but he is not to tell us in this way, ‘I relied on a misrepresentation according to what the words obviously convey, and I will not tell you what that is; I am unable to express in any other words what I meant.’ So that we are dealing with a Plaintiff who says he has been deceived, but will not condescend to particulars, and will not tell us in what respect he was deceived”: (1881) 20 Ch D 27 at 48-49.

212. That was the context in which the Master of the Rolls said, at 61, that the hardest question in the case was the meaning of the line in the prospectus, of which he said:

“The Plaintiff will not tell us how he read it. He says he read it for what it obviously means.”

213. That explains what Lord Blackburn had in mind when saying that Mr Smith was a man who, although called as a witness, did not swear that he was induced by the representation. In the passage on which Ms Trentelman relies, his Lordship was rejecting the submission that had been made (by Romer QC and Cozens-Hardy QC recorded at 9 Appeal Cases at 188) that “[i]t would not have been admissible for the plaintiff’s counsel to ask [Mr Smith] that question in examination in chief” but that “[t]he defendant’s counsel should have asked the plaintiff in cross-examination what meaning he put upon the representation”.

214. Further, as Ms Peden observed, the passage in Lord Blackburn’s speech continues with the important qualifying words: “I do not say it is conclusive”. That confirms the importance of attending to the circumstances relating to the failure to call a witness. The primary judge made an express finding about this. His Honour found that the appropriate inference was that the decision not to call further witnesses, including five witnesses whose affidavits had been served, was “nothing more than a commendable attempt to save time”: at [196]. If a submission was to be put that there were especially probative witnesses, or potentially damaging witnesses, who were not called, then it was open to the appellant to adduce evidence of that (for example, by tendering the affidavits or witness statements that had been served). This was not done. Indeed, there was no challenge to the explanation expressed by the primary judge for the decision not to call further witnesses. It follows that there was no occasion for the drawing of inferences as considered by Handley JA in Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418-419, as was explained by Hodgson JA in Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168 at [16]-[17].

Costs

215. Finally, I note for completeness that the appellant flagged that she would amend her notice of appeal to challenge the exercise of the discretion to award costs in the most recent judgment of the primary judge. That did not happen. This was squarely raised in oral address by the respondent. Even so, no application was made to amend. This Court accordingly cannot alter the costs orders made in the third judgment. In any event, there is no occasion in light of these reasons to interfere in the exercise of costs which, in relation to Ms Trentelman’s case, was principally determined by reference to her failure on rectification and mistake: [2021] NSWSC 578 at [44].

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Annexure A _ ATTACH TO JUDGMENT (71460, pdf)

Amendments

06 June 2022 - Coversheet – “Rainbow v Gallagher” changed to “Gallagher v Rainbow” and reordered to maintain alphabetical order

Coversheet – “[1999] VSCA 134” changed to “[1999] VSCA 109” in citation for Flinn v Flinn

[177] – “which is has legal significance” changed to “which has legal significance”

[188] – “view as its effect” changed to “view as to its effect”

[200] – “Rainbow v Gallagher” changed to “Gallagher v Rainbow” twice

[207] – “[1999] VSCA 134” changed to “[1999] VSCA 109” in citation for Flinn v Flinn

[214] – “found that that the” changed to “found that the”

Decision last updated: 06 June 2022