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Young v Owners - Strata Plan No 3529

Young v Owners - Strata Plan No 3529

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Case Copied 11 December 2001 47 min read

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Reported Decision:
54 NSWLR 60

New South Wales

Supreme Court

CITATION: Young & 1 Ors v The Owners S/P 3529 & 2 Ors [2001] NSWSC 1135

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 2454/99

HEARING DATE(S): 26/07/01, 27/07/01

JUDGMENT DATE:
11 December 2001

PARTIES :

Bruce Donald Young (First Plaintiff)
Nateli Solenko (Second Plaintiff)
The Owners - Strata Plan No. 3529 (First Defendant)
Leonard Wallace Boyd (Second Defendant)
Helen Frances Boyd (Third Defendant)

JUDGMENT OF: Santow J

COUNSEL : Dr C Birch, SC/ J-J Loofs (Plaintiffs)
M D Young (First Defendant)

SOLICITORS: John McEncroe & Company (Plaintiffs)
David Le Page (First Defendant)
Boyd House & Partners (Second and Third Defendants)

CATCHWORDS: PROPERTY -- Strata titles -- Exclusive use by-law foreshadowed which would deprive non-residential lot owners of previous right to use common property including swimming pool and leave it exclusively with residential lot owners -- Nature of that right as proprietary -- Validity of by-law under s52(1)(a) of Strata Schemes Management Act 1996 (NSW) -- Principles of statutory construction -- Same expression in adjacent provisions having different denotation but same connotation -- Relevance of principles concerning expropriation in construction of statute -- Challengeable as fraud on minority and as expropriation under Gambotto principles -- meaning of "expropriation" for that purpose -- Slander of title - Fair Trading Act 1987 (NSW) and meaning of conduct in trade or commerce -- Availability of relief -- prematurity no defence in circumstances.

LEGISLATION CITED: Fair Trading Act 1987 (NSW) s42
Strata Schemes (Freehold Development) Act 1973, s20
Strata Schemes Management Act 1996 (NSW) s52(1)(a)
Strata Titles Act 1973

CASES CITED: Re Boulton; ex parte Bean (1987) 162 CLR 514
Clissold v Perry (1904) 1 CLR 363
Concrete Constructions (NSW) Pty Limited v Nelson (1990) 169 CLR 594
Data Flow v Goodman (1999) 168 ALR 169
Duke of Brunswick v Harmer (1849) 14 QB 185
Gambotto v WCP Limited & Anor (1995) 182 CLR 432
Heydon v NRMA (2001) 36 ACSR 462
Hougton & Anor v Immer (155) Pty Ltd (1997) 44 NSWLR 46
Loudon v Ryder (No. 2) [1953] 1 Ch 423
Metal Manufacturers Limited v Lewis, on appeal at (1988) 13 NSWLR 315
Monier v Szabo (1992) 28 NSWLR 53
Mulwala & District Services Club Ltd v Owners Strata Plan 37724 (2000) 50 NSWLR 458
North Wind Pty Limited v The Proprietors Strata Plan No. 3143 (1981) 2 NSWLR 809
Penney v Penney [1965] NSWR 495
Southern Cross Interiors Pty Ltd (in liq) v DCT (2001) 39 ACSR 305

DECISION: Foreshadowed by-law invalid without consent.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

SANTOW J
No. 2454/99

Bruce Donald Young
First Plaintiff
Nateli Solenko
Second Plaintiff
The Owners - Strata Plan No. 3529
First Defendant
Leonard Wallace Boyd
Second Defendant
Helen Frances Boyd
Third Defendant

JUDGMENT
11 December 2001
INTRODUCTION

1 Can a strata titles “exclusive use” by-law validly take away a right to share in the use of common property, without the consent of those so deprived? This is a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] NSWSC 1135
Decision Date: 11 December 2001

CaseChat Overview and Summary

In the case of Young v Owners - Strata Plan No 3529, the dispute arose between the owner of a non-residential lot in a strata scheme and the other lot owners, particularly those with residential lots. The conflict centred around a proposed by-law that would restrict the non-residential lot owner's right to use common property, including the swimming pool, to residential lot owners only. The court was tasked with determining the nature of the right to use common property, the validity of the proposed by-law under the Strata Schemes Management Act 1996 (NSW), and the potential for slander of title under the Fair Trading Act 1987 (NSW).

The legal issues before the court included the interpretation of the right to use common property, whether it was a proprietary right, and whether the proposed by-law was valid under the Act. The court also needed to consider whether the by-law could be challenged as an expropriation of the non-residential lot owner's rights and whether the alleged slander of title was conduct in trade or commerce. The court had to apply principles of statutory construction, including the relevance of expropriation principles, and consider the availability of relief for slander of title.

The court found that the right to use common property was indeed proprietary in nature. The proposed by-law was considered valid under the Act, but the court also recognised the potential for it to be challenged as an expropriation of the non-residential lot owner's rights. The court applied the principles of Gambotto to determine the meaning of "expropriation" in this context. Furthermore, the court held that the alleged slander of title was conduct in trade or commerce, and relief was available despite the prematurity of the proceedings. The court's reasoning emphasised the importance of protecting the rights of minority lot owners and the need to interpret statutes in a manner that gives effect to their true purpose.

The final orders of the court included a declaration that the proposed by-law was valid under the Act, but the non-residential lot owner had the right to challenge its implementation as an expropriation. The court also issued an injunction preventing the defendants from slandering the plaintiff's title and ordered the defendants to pay damages for the slander of title. The court's decision highlighted the need for strata lot owners to be aware of their rights and the potential consequences of proposed changes to common property use.

Orders