Owners Corporation SP6534 v Elkhouri; Owners Corporation SP6534 v Perpetual Corporate Trust Ltd [2024] NSWCA 279

Owners Corporation SP6534 v Elkhouri; Owners Corporation SP6534 v Perpetual Corporate Trust Ltd [2024] NSWCA 279

The Supreme Court of NSW has jurisdiction to determine if by-law conditions are 'unjust' under s 149(1)(c); by-law 30.3 was not unjust, as it was a reasonable condition agreed to as part of a mutual bargain, and the obligations and extension of exclusive use rights depended on fulfilment of stipulated works. The award of monetary sums to the Owners Corporation was set aside in part, as the primary judge did not make the findings required to establish liability and causation before quantification. The declaration as to unjustness and related orders were set aside, and claims requiring findings were referred to a referee.

Parties
Appellant/cross Respondent: Owners Corporation SP6534; First Respondent/first Cross Appellant: Karam Elkhouri; Second Respondent/second Cross Appellant: Philippe Elkhouri; Respondent/cross Appellant: Perpetual Corporate Trust Ltd
Jurisdiction
Australia
Judgment Date
27 November 2024
Procedural Posture
Appeal / Court of Appeal Decision
Outcome
Appeal allowed in part, cross-appeal allowed in part, declaration set aside, monetary awards in part set aside and remitted for determination by referee, costs orders varied or set aside.
Legal Topics
Strata Title, By Laws, Jurisdiction, Damages, Exclusive Use Rights, Unjust by Laws, Costs Orders
Land Law Courts and Judges Strata Title By Laws Jurisdiction Damages Exclusive Use Rights Unjust by Laws +1 more

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Parties

Owners Corporation SP6534

Appellant/cross Respondent

Karam Elkhouri

First Respondent/first Cross Appellant

Philippe Elkhouri

Second Respondent/second Cross Appellant

Perpetual Corporate Trust Ltd

Respondent/cross Appellant

Procedural Posture

Appeal / Court of Appeal Decision

Legal Issues

  1. 1 Whether the Supreme Court of NSW had jurisdiction to declare a by-law condition 'unjust' under s 149(1)(c) of the Strata Schemes Management Act 2015 (NSW)
  2. 2 Whether by-law 30.3 was unjust under s 149(1)(c) SSMA
  3. 3 Whether the primary judge erred by awarding monetary sums without findings necessary to establish entitlement

Ratio Decidendi

The Supreme Court of NSW has jurisdiction to determine if by-law conditions are 'unjust' under s 149(1)(c); by-law 30.3 was not unjust, as it was a reasonable condition agreed to as part of a mutual bargain, and the obligations and extension of exclusive use rights depended on fulfilment of stipulated works. The award of monetary sums to the Owners Corporation was set aside in part, as the primary judge did not make the findings required to establish liability and causation before quantification. The declaration as to unjustness and related orders were set aside, and claims requiring findings were referred to a referee.

Court Disposition

Appeal allowed in part, cross-appeal allowed in part, declaration set aside, monetary awards in part set aside and remitted for determination by referee, costs orders varied or set aside.

Orders

  • Set aside the declaration that paragraph 30.3 of by-law 30 is unjust.
  • Set aside orders remitting proceedings to the Tribunal.