White v Betalli

Case [2007] NSWCA 243
Reported Decision: (2007) NSW Titles Cases 80-120

New South Wales


Court of Appeal


CITATION: White v Betalli & Anor [2007] NSWCA 243
HEARING DATE(S): 26 April 2007
 
JUDGMENT DATE: 
14 September 2007
JUDGMENT OF: Santow JA at 1; McColl JA at 77; Campbell JA at 195
DECISION: 1. Leave to appeal granted; 2. Appeal dismissed; 3. Appellant to pay the respondent’s costs.
CATCHWORDS: REAL PROPERTY – Strata and related titles and occupancy – validity of special by-law created pursuant to s 43 Strata Schemes Management Act 1996 - special by-laws created right in favour of one lot proprietor to use or occupy part of lot owned by another to store small watercraft - STATUTES - Statutory Construction - expressum facit cessare tacitum – whether only available source of power to create right purportedly created by special by-law was s 88B, Conveyancing Act 1919 - STRATA TITLES AND RELATED TITLES AND OCCUPANCY – Strata Schemes Management Act 1996 s 43 – whether special by-law “appropriate to the type of strata scheme concerned” or inconsistent with Management Act or any other Act or law - REAL PROPERTY – land titles – registration – whether interest sufficiently recorded on the register if folio states the registration of the dealing creating it and identifies the interest.
LEGISLATION CITED: Commonwealth Conciliation & Arbitration Act 1904
Conveyancing (Strata Titles) Act 1961
Conveyancing Act 1919
Interpretation Act 1987
Real Property Act 1900
Strata Schemes (Freehold Development) Act 1973
Strata Schemes Management (Miscellaneous Amendments) Act 1996
Strata Schemes Management Act 1996
Strata Titles Act 1973
Building Units and Group Titles Act 1980 (Qld)
Companies Clauses Consolidation Act 1845 (Imp)
Prescription Act 1832 (Imp)
Public Health Act 1875 (Imp)
CASES CITED: Andrews v Wirral Rural District Council [1916] 1 KB 863
Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1
Bursill Enterprises Pty Ltd v Berger Bros Trading Pty Ltd [1971] HCA 9; (1971) 124 CLR 73
Clissold v Perry [1904] HCA 12; (1904) 1 CLR 363
Clos Farming Estates Pty Ltd (Recs and Mgrs Apptd)(ACN 003 435 256) v Easton and Another [2002] NSWCA 389; (2002) 11 BPR 20,605
Copeland v Greenhalf [1952] Ch 488
Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; (2003) 57 NSWLR 113
Deputy Commissioner of Taxation v Dick [2007] NSWCA 190
Forestview Nominees Pty Limited and Anor v Perpetual Trustees WA Limited [1998] HCA 15; (1998) 193 CLR 154
Grigsby v Melville & Anor [1972] 1 WLR 1355
Hamlena Pty Ltd v Sydney Endoscopy Centre Pty Ltd (1990) 5 BPR 11,436
Harada v Registrar of Titles [1981] VR 743
Humphries v Proprietors Surfers Palms North Group Titles Plan 1955 [1994] HCA 21; (1994) 179 CLR 597
Johnson v Barnes (1873) LR 8 CP 527
Lolakis v Konitsas [2002] NSWSC 889; (2002) 11 BPR 20,499
Marquess of Zetland v Driver [1939] Ch 1
Mercantile General Life Reassurance Co v Permanent…

Continue reading White v Betalli

Sign in free to access the full text

Details
AGLC
White v Betalli [2007] NSWCA 243
Case
[2007] NSWCA 243
Decision Date

CaseChat Overview and Summary

The case of *White v Betalli* concerned a dispute between two lot proprietors within a strata scheme. The appellant, Mr White, sought to challenge the validity of a special by-law that granted the respondent, Mr Betalli, the right to use and occupy a portion of Mr White's lot for the storage of small watercraft. The matter came before the Court of Appeal of New South Wales.

The central legal issues before the court were whether the special by-law was validly created under section 43 of the *Strata Schemes Management Act 1996* (NSW). Specifically, the court had to determine if the by-law was "appropriate to the type of strata scheme concerned" and if it was inconsistent with the *Strata Schemes Management Act* or any other Act or law. A further issue arose regarding whether the *expressum facit cessare tacitum* principle applied, suggesting that the only source of power to create such a right was section 88B of the *Conveyancing Act 1919* (NSW).

The Court of Appeal held that the special by-law was valid. It reasoned that section 43 of the *Strata Schemes Management Act* conferred broad power to make by-laws, provided they were appropriate to the scheme and not inconsistent with other legislation. The court found that the by-law in question did not create an easement or a proprietary interest in land that would require registration under the *Conveyancing Act*. Instead, it was a personal right granted by the strata scheme itself, enforceable between lot owners. The principle of *expressum facit cessare tacitum* was not applicable as the *Strata Schemes Management Act* provided a distinct mechanism for creating such rights within strata schemes.

Leave to appeal was granted, but the appeal was ultimately dismissed. The appellant, Mr White, was ordered to pay the respondent's costs.

Orders

Orders of the court

1. Leave to appeal granted;

2. Appeal dismissed;

3. Appellant to pay the respondent's costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.