Gena Pty Ltd & Anor v. The Proprietors-Units Plan No. 139 & Ors [1987] FCA 61

Gena Pty Ltd & Anor v. The Proprietors-Units Plan No. 139 & Ors [1987] FCA 61

Condition 3, restricting the use of the proposed enlarged supermarket premises for retail butchery except for sale of meats pre-packed off the premises, was not authorised by s.97(5) because the respondents had no legal or equitable right to prevent such trading and there was no corresponding duty to adjust. The majority held that s.97(4) did not supply an independent power to impose such conditions. Because the Supreme Court had treated the condition as necessary to make cancellation just and equitable, the order could not stand without it; the proper order was to dismiss the application for cancellation of Units Plan No.139.

Jurisdiction
Australia
Judgment Date
20 February 1987
Procedural Posture
Appeal and Cross Appeal From a Judgment of the Supreme Court of the Australian Capital Territory on an Application Under S.97 of the Unit Titles Ordinance 1970 (a.c.t.) / Federal Court of Australia, General Division, on Appeal From the Supreme Court of the Australian Capital Territory
Outcome
Appeal dismissed; cross-appeal allowed; Supreme Court order set aside; application to the Supreme Court dismissed.
Legal Topics
['cancellation of Units Plan' 'crown Leasehold Land' 'conditions on Provisional Cancellation Order' 'rights and Interests of Unit Holders' 'just and Equitable Discretion']
['real Property' 'unit Titles' 'statutory Construction'] ['cancellation of Units Plan' 'crown Leasehold Land' 'conditions on Provisional Cancellation Order' 'rights and Interests of Unit Holders' 'just and Equitable Discretion']

Case Brief

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Procedural Posture

Appeal and Cross Appeal From a Judgment of the Supreme Court of the Australian Capital Territory on an Application Under S.97 of the Unit Titles Ordinance 1970 (a.c.t.) / Federal Court of Australia, General Division, on Appeal From the Supreme Court of the Australian Capital Territory

Legal Issues

  1. 1 ['Whether the Supreme Court had power under s.97(5) of the Unit Titles Ordinance 1970 (A.C.T.) to impose a condition restricting retail butchery or meat sales from the proposed enlarged supermarket premises.' 'Whether s.97(4) of the Unit Titles Ordinance 1970 (A.C.T.) supported the imposition of conditions on an order cancelling a units plan.' "Whether it was just and equitable to order cancellation of Units Plan No.139 where the condition preserving the respondents' practical commercial advantage was beyond power." 'Whether the application to cancel the units plan should have been dismissed.']

Ratio Decidendi

Condition 3, restricting the use of the proposed enlarged supermarket premises for retail butchery except for sale of meats pre-packed off the premises, was not authorised by s.97(5) because the respondents had no legal or equitable right to prevent such trading and there was no corresponding duty to adjust. The majority held that s.97(4) did not supply an independent power to impose such conditions. Because the Supreme Court had treated the condition as necessary to make cancellation just and equitable, the order could not stand without it; the proper order was to dismiss the application for cancellation of Units Plan No.139.

Court Disposition

Appeal dismissed; cross-appeal allowed; Supreme Court order set aside; application to the Supreme Court dismissed.

Orders

  • ['The appeal be dismissed.' 'The cross-appeal of the second, third, fourth and fifth respondents be allowed.' 'The order made by the Supreme Court of the Australian Capital Territory on 20 May 1986 be set aside and in lieu thereof it be ordered that the application to that Court be dismissed.' "The appellants pay...