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

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

A by-law under Strata Schemes Management Act 1996 (NSW) that would deprive existing lot owners (such as the plaintiffs) of their proprietary rights to use common property requires the written consent of those owners under s52(1)(a). The foreshadowed by-law, absent such consent, would be invalid. Furthermore, an implied representation that the Owners Corporation could pass such a by-law without required consent is misleading and deceptive in trade or commerce under s42 of the Fair Trading Act. No actionable slander of title was made out and damages, if any, are to be separately determined.

Jurisdiction
Australia
Judgment Date
11 December 2001
Procedural Posture
Equity / Judgment
Outcome
Plaintiffs succeed on main questions; declaration to be entered; damages to be determined separately; costs to follow event, subject to further submissions.
Legal Topics
['exclusive Use by Laws' 'proprietary Rights in Common Property' 'consent Requirements' 'fraud on Minority' 'expropriation' 'slander of Title' 'misleading or Deceptive Conduct']
['property Law' 'strata Titles'] ['exclusive Use by Laws' 'proprietary Rights in Common Property' 'consent Requirements' 'fraud on Minority' 'expropriation' 'slander of Title' 'misleading or Deceptive Conduct']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Equity / Judgment

Legal Issues

  1. 1 ['Whether an exclusive use by-law can deprive non-residential lot owners of rights to common property without their consent under s52(1)(a) Strata Schemes Management Act 1996 (NSW)' 'Whether such a by-law is invalid or constitutes a fraud on the minority or expropriation under the principles in Gambotto v WCP Limited' 'Whether representations in a letter amounted to slander of title' 'Whether conduct amounted to misleading or deceptive conduct in trade or commerce under s42 Fair Trading Act 1987 (NSW)']

Ratio Decidendi

A by-law under Strata Schemes Management Act 1996 (NSW) that would deprive existing lot owners (such as the plaintiffs) of their proprietary rights to use common property requires the written consent of those owners under s52(1)(a). The foreshadowed by-law, absent such consent, would be invalid. Furthermore, an implied representation that the Owners Corporation could pass such a by-law without required consent is misleading and deceptive in trade or commerce under s42 of the Fair Trading Act. No actionable slander of title was made out and damages, if any, are to be separately determined.

Court Disposition

Plaintiffs succeed on main questions; declaration to be entered; damages to be determined separately; costs to follow event, subject to further submissions.

Orders

  • ['Declaration that without written consent of the plaintiffs, the by-law cannot be validly passed to deprive them of their proprietary rights.' 'Directions for parties to submit orders giving effect to judgment and to address costs if desired.']