The Owners-Strata Plan 47027 v McGinn [2018] NSWSC 1230

The Owners-Strata Plan 47027 v McGinn [2018] NSWSC 1230

The separate meeting chaired by Ms McGinn on 18 November 2016 was not conducted in accordance with Sch 2 cl 15 of the Strata Schemes Management Act 1996 (NSW), because she was not elected to preside by the persons present and entitled to vote, Mr O'Brien was elected instead, and not all lot owners present were shown to have been invited to attend and vote at her separate meeting. The resolutions passed at that meeting, including the purported termination of Clisdell's agency agreement and changes to the executive committee, were therefore invalid. Clisdell remained strata managing agent and validly convened the 30 May 2017 meeting, at which Ms McGinn was validly removed as a member and...

Jurisdiction
Australia
Judgment Date
08 August 2018
Procedural Posture
Equity Proceedings Concerning Governance of Strata Plan 47027 and Claims for Injunctive Relief and Payment of Funds / Final Hearing of the Amended Summons and of the First Defendant's Notices of Motion Filed on 16 November 2017 and 21 November 2017
Outcome
Plaintiffs successful in obtaining final injunctive relief; Ms McGinn's motions dismissed.
Legal Topics
['owners Corporation Governance' 'validity of Owners Corporation Meetings and Resolutions' 'strata Committee Membership and Office Holders' 'injunction in Aid of Statutory Rights' 'authority to Commence Proceedings' 'setting Aside and Staying Interlocutory Orders' 'strata Levy Funds and Bank Account Control']
['land Law' 'strata Title' 'equity' 'civil Procedure'] ['owners Corporation Governance' 'validity of Owners Corporation Meetings and Resolutions' 'strata Committee Membership and Office Holders' 'injunction in Aid of Statutory Rights' 'authority to Commence Proceedings' 'setting Aside and Staying Interlocutory Orders' 'strata Levy Funds and Bank Account Control']

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Procedural Posture

Equity Proceedings Concerning Governance of Strata Plan 47027 and Claims for Injunctive Relief and Payment of Funds / Final Hearing of the Amended Summons and of the First Defendant's Notices of Motion Filed on 16 November 2017 and 21 November 2017

Legal Issues

  1. 1 ["Whether resolutions purportedly passed at a meeting chaired by Ms McGinn on 18 November 2016, including termination of Clisdell's strata management agency agreement, were valid resolutions of the owners corporation." 'Whether the Extraordinary General Meeting of 30 May 2017 and the Annual General Meeting of 7 September 2017 were validly convened and whether resolutions removing Ms McGinn and appointing or reappointing Clisdell were valid.' 'Whether Ms McGinn was a member of the strata committee or the secretary or treasurer of the owners corporation and entitled to act or hold herself out as such.' 'Whether the plaintiffs had authority and standing to commence and maintain proceedings seeking injunctive relief.' 'Whether final injunctions should restrain Ms McGinn from acting for or representing the owners corporation unless duly elected and authorised.' 'Whether funds in the Westpac account should be paid to the owners corporation.' 'Whether the interlocutory orders made on 9 November 2017 should be set aside or stayed under the Uniform Civil Procedure Rules 2005 (NSW).']

Ratio Decidendi

The separate meeting chaired by Ms McGinn on 18 November 2016 was not conducted in accordance with Sch 2 cl 15 of the Strata Schemes Management Act 1996 (NSW), because she was not elected to preside by the persons present and entitled to vote, Mr O'Brien was elected instead, and not all lot owners present were shown to have been invited to attend and vote at her separate meeting. The resolutions passed at that meeting, including the purported termination of Clisdell's agency agreement and changes to the executive committee, were therefore invalid. Clisdell remained strata managing agent and validly convened the 30 May 2017 meeting, at which Ms McGinn was validly removed as a member and...

Court Disposition

Plaintiffs successful in obtaining final injunctive relief; Ms McGinn's motions dismissed.

Orders

  • ['Final injunctions to issue restraining Ms McGinn from holding herself out as a committee member or office holder, or carrying out any functions of the strata committee or such offices, including sending levy notices, disbursing money from the Westpac account, and establishing any other bank account in the name of...