In the matter of Italian Forum Limited (subject to a deed of company arrangement) [2015] NSWSC 1386

In the matter of Italian Forum Limited (subject to a deed of company arrangement) [2015] NSWSC 1386

The Strata Management Statement did not create a security over IFL's land. Section 28W of the Strata Schemes (Freehold Development) Act 1973 (NSW) did not make the purchaser liable for debts or obligations incurred by IFL while it was registered owner. Although the BMC amounts for the first and second periods had not become presently payable because the first defendant had not paid the promotional levy, the Sale Contract required IFL, as between vendor and purchaser, to disregard the suspensive effect of clause 15.13.4 for calculating payment dates and to pay BMC amounts that were to be paid before completion. The plaintiffs were therefore justified in taking the proposed steps and were...

Jurisdiction
Australia
Judgment Date
14 August 2015
Procedural Posture
Application by an Administrator for Directions Pursuant to S 447 D of the Corporations Law, Expanded to Include Declarations and an Order for Payment / Principal Judgment After Hearing in the Equity Corporations List
Outcome
The plaintiffs were held justified in taking the proposed steps and entitled to the relief sought in the draft orders handed up in Court on 31 July 2015.
Legal Topics
['application for Directions' 'deed of Company Arrangement' 'contract to Sell Land' 'conditions Precedent' 'strata Management Statement' 'building Management Committee Contributions' 'promotional Levies' 'accrued Debts and Incurred Obligations']
['equity' 'corporations' 'strata Title' 'property' 'contract'] ['application for Directions' 'deed of Company Arrangement' 'contract to Sell Land' 'conditions Precedent' 'strata Management Statement' 'building Management Committee Contributions' 'promotional Levies' 'accrued Debts and Incurred Obligations']

Case Brief

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Procedural Posture

Application by an Administrator for Directions Pursuant to S 447 D of the Corporations Law, Expanded to Include Declarations and an Order for Payment / Principal Judgment After Hearing in the Equity Corporations List

Legal Issues

  1. 1 ['Whether unpaid Vendor BMC Contributions were recoverable by the BMC against the purchaser or the land after completion of the Sale Contract' "Whether the Vendor BMC Contributions were secured debts over IFL's land" 'The status of Vendor BMC Contributions that IFL was not required to pay on settlement' 'Whether obligations under the Strata Management Statement for the first and second periods had accrued as debts or had been incurred while IFL was registered owner' 'Whether the plaintiffs were justified in paying BMC amounts for the first, second and fourth periods under the Sale Contract']

Ratio Decidendi

The Strata Management Statement did not create a security over IFL's land. Section 28W of the Strata Schemes (Freehold Development) Act 1973 (NSW) did not make the purchaser liable for debts or obligations incurred by IFL while it was registered owner. Although the BMC amounts for the first and second periods had not become presently payable because the first defendant had not paid the promotional levy, the Sale Contract required IFL, as between vendor and purchaser, to disregard the suspensive effect of clause 15.13.4 for calculating payment dates and to pay BMC amounts that were to be paid before completion. The plaintiffs were therefore justified in taking the proposed steps and were...

Court Disposition

The plaintiffs were held justified in taking the proposed steps and entitled to the relief sought in the draft orders handed up in Court on 31 July 2015.

Orders

  • []