CASTLE CONSTRUCTIONS PTY. LTD. v. THE OWNERS - STRATA PLAN 53342 AND 17 OTHERS [1999] NSWSC 1107

CASTLE CONSTRUCTIONS PTY. LTD. v. THE OWNERS - STRATA PLAN 53342 AND 17 OTHERS [1999] NSWSC 1107

Because there was a breach of procedural fairness in the process leading to the appointment of Mr. Donald as managing agent, the order was set aside and the matter of appointment referred back to the Board for a procedurally fair reconsideration. Further, the same solicitor should not act for both the owners corporation and the applicant lot owners where their interests are not identical.

Parties
Plaintiff: Castle Constructions Pty. Limited; First Defendant: The Owners - Strata Plan No. 53342; Second Defendant: J. Hunt; Third Defendant: R.J. Sperling; Fourth Defendant: G. Sanders; Fifth Defendant: H.V. Sanders; Sixth Defendant: F. Weisz; Seventh Defendant: M. Hutchison; Eighth Defendant: E. Hutchison; Ninth Defendant: V. Bryer; Tenth Defendant: I. Fischer; Eleventh Defendant: D. Fischer; Twelfth Defendant: T. Pettingell; Thirteenth Defendant: B. Lindener; Fourteenth Defendant: K. Muench; Fifteenth Defendant: J. Muench; Sixteenth Defendant: A. Swart; Seventeenth Defendant: Alan John Donald; Eighteenth Defendant: Graham Cochrane as the Strata Schemes Board
Jurisdiction
Australia
Judgment Date
17 November 1999
Procedural Posture
Appeal / Supreme Court Judgment on Appeal From Strata Schemes Board
Outcome
Order appointing Alan John Donald as strata managing agent quashed; matter referred back to Board for appointment of strata managing agent; all costs issues reserved
Legal Topics
Appointment of Strata Managing Agent, Representation Conflict of Interest, Procedural Fairness, Stay of Execution
Property Law Strata Title Law Appointment of Strata Managing Agent Representation Conflict of Interest Procedural Fairness Stay of Execution

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Parties

Castle Constructions Pty. Limited

Plaintiff

The Owners - Strata Plan No. 53342

First Defendant

J. Hunt

Second Defendant

R.J. Sperling

Third Defendant

G. Sanders

Fourth Defendant

H.V. Sanders

Fifth Defendant

F. Weisz

Sixth Defendant

M. Hutchison

Seventh Defendant

E. Hutchison

Eighth Defendant

V. Bryer

Ninth Defendant

I. Fischer

Tenth Defendant

D. Fischer

Eleventh Defendant

T. Pettingell

Twelfth Defendant

B. Lindener

Thirteenth Defendant

K. Muench

Fourteenth Defendant

J. Muench

Fifteenth Defendant

A. Swart

Sixteenth Defendant

Alan John Donald

Seventeenth Defendant

Graham Cochrane as the Strata Schemes Board

Eighteenth Defendant

Procedural Posture

Appeal / Supreme Court Judgment on Appeal From Strata Schemes Board

Legal Issues

  1. 1 Whether procedural fairness was denied in the appointment of the strata managing agent
  2. 2 Whether there was a conflict of interest in solicitors acting for both the owners corporation and the applicant lot owners
  3. 3 Whether a stay of execution of the Board's orders should be granted

Ratio Decidendi

Because there was a breach of procedural fairness in the process leading to the appointment of Mr. Donald as managing agent, the order was set aside and the matter of appointment referred back to the Board for a procedurally fair reconsideration. Further, the same solicitor should not act for both the owners corporation and the applicant lot owners where their interests are not identical.

Court Disposition

Order appointing Alan John Donald as strata managing agent quashed; matter referred back to Board for appointment of strata managing agent; all costs issues reserved

Orders

  • The order of 16 August 1999 naming Alan John Donald is quashed, with effect seven days from 17 November 1999.
  • The question of who should be the strata managing agent is referred back to the Board for consideration and appointment in accordance with judgment.