Stanley Melbourne Gillett & Anor v Brian John Walsh [2009] NSWSC 1436

Stanley Melbourne Gillett & Anor v Brian John Walsh [2009] NSWSC 1436

The Supreme Court had jurisdiction under section 66 of the Supreme Court Act 1970 to grant urgent interlocutory relief, notwithstanding the defendant's reliance on section 22(3) of the CTTT Act. The plaintiffs established a serious case that the defendant's balcony works may affect common property and require Owners Corporation authorisation or a special resolution, and there was evidence the Adjudicator's orders were not being observed. The balance of convenience strongly favoured preserving the interlocutory regime and restraining continuation of the works because dismantling completed works later was not an adequate answer and there was no satisfactory evidence of prejudice to the...

Jurisdiction
Australia
Judgment Date
18 December 2009
Procedural Posture
Application for Interlocutory Injunction in the Equity Division, Technology and Construction List / Interlocutory Application
Outcome
Interlocutory injunction ordered.
Legal Topics
['interlocutory Injunction' 'strata Schemes Management Act 1996' 'consumer, Trader and Tenancy Tribunal' 'jurisdiction' 'by Laws' 'common Property' 'urgent Interim Orders']
['practice and Procedure' 'equity' 'strata Schemes'] ['interlocutory Injunction' 'strata Schemes Management Act 1996' 'consumer, Trader and Tenancy Tribunal' 'jurisdiction' 'by Laws' 'common Property' 'urgent Interim Orders']

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

Application for Interlocutory Injunction in the Equity Division, Technology and Construction List / Interlocutory Application

Legal Issues

  1. 1 ['Whether the Supreme Court had jurisdiction to grant interlocutory relief where urgent interim orders had been made by a Strata Schemes Adjudicator and the defendant contended the matter was before the Tribunal.' "Whether the plaintiffs had established a serious case that the defendant's building works required Owners Corporation consent or a special resolution because they affected common property or breached by-laws." 'Whether the balance of convenience favoured restraining the defendant from continuing the building works pending final determination.']

Ratio Decidendi

The Supreme Court had jurisdiction under section 66 of the Supreme Court Act 1970 to grant urgent interlocutory relief, notwithstanding the defendant's reliance on section 22(3) of the CTTT Act. The plaintiffs established a serious case that the defendant's balcony works may affect common property and require Owners Corporation authorisation or a special resolution, and there was evidence the Adjudicator's orders were not being observed. The balance of convenience strongly favoured preserving the interlocutory regime and restraining continuation of the works because dismantling completed works later was not an adequate answer and there was no satisfactory evidence of prejudice to the...

Court Disposition

Interlocutory injunction ordered.

Orders

  • ['Interlocutory relief sought by the plaintiffs was granted on 14 December 2009.' 'The proceedings were stood over until early February in the new term for further directions before the list judge.' 'Costs of and occasioned by the interlocutory application were reserved.']