Community Association DP270212 & Ors v Registrar-General for State NSW & Anor [2004] NSWSC 961

Community Association DP270212 & Ors v Registrar-General for State NSW & Anor [2004] NSWSC 961

Continuation of the Community Scheme had become impracticable within s.70(1)(b) because the mandatory Architectural Standards were imprecise, general and dependent on subjective taste and judgment, making practical certainty, consistency and predictability unattainable and likely to produce disputation. As all affected interests had consented or did not oppose, and safeguards were provided through a new deposited plan, winding up by an independent liquidator and undertakings for liabilities, there was no discretionary reason to refuse termination.

Jurisdiction
Australia
Judgment Date
19 October 2004
Procedural Posture
Application Under S.70(1) of the Community Land Development Act 1989 (nsw) for Termination of a Community Scheme / Final Determination of Amended Summons
Outcome
Community scheme terminated; Community Association DP270212 ordered to be wound up; no order as to costs.
Legal Topics
['termination of Community Scheme' 'impracticability Under S.70(1)(b)' 'community Management Statement' 'discretionary Considerations' 'winding Up of Community Association' 'registration of New Deposited Plan']
['community Land Development' 'property Law' 'equity'] ['termination of Community Scheme' 'impracticability Under S.70(1)(b)' 'community Management Statement' 'discretionary Considerations' 'winding Up of Community Association' 'registration of New Deposited Plan']

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Procedural Posture

Application Under S.70(1) of the Community Land Development Act 1989 (nsw) for Termination of a Community Scheme / Final Determination of Amended Summons

Legal Issues

  1. 1 ['Whether continuation of Community Scheme relating to Community Plan DP270212 had become impracticable within s.70(1)(b) of the Community Land Development Act 1989 (NSW).' 'Whether the Court should exercise its discretion to terminate the Community Scheme.' 'What consequential orders should be made for registration of a new deposited plan and winding up of Community Association DP270212.']

Ratio Decidendi

Continuation of the Community Scheme had become impracticable within s.70(1)(b) because the mandatory Architectural Standards were imprecise, general and dependent on subjective taste and judgment, making practical certainty, consistency and predictability unattainable and likely to produce disputation. As all affected interests had consented or did not oppose, and safeguards were provided through a new deposited plan, winding up by an independent liquidator and undertakings for liabilities, there was no discretionary reason to refuse termination.

Court Disposition

Community scheme terminated; Community Association DP270212 ordered to be wound up; no order as to costs.

Orders

  • ['Order pursuant to s.70(1) of the Community Land Development Act 1989 that the Community Scheme relating to Community Plan DP270212 be terminated, taking effect three weeks from the date of the Order or another date substituted by the Court.' 'Direction pursuant to s.70(3) that the Plaintiffs forthwith lodge the...