Clarke v James and Ors [2018] NSWCATCD 67

Clarke v James and Ors [2018] NSWCATCD 67

The written consent to park given by the Owners Corporation pursuant to an ordinary resolution under by-law 2 was valid and sufficient. The situation did not require a special resolution, as no by-law was changed nor was a licence granted. There was no breach of by-laws 2, 3, 6, or 17 based on the evidence. The application must be dismissed as the applicant failed to show non-compliance with the by-laws or invalidity of the AGM motion.

Jurisdiction
Australia
Judgment Date
06 November 2018
Procedural Posture
Strata Dispute – Civil Application / Final Decision
Outcome
Application dismissed
Legal Topics
['by Law Compliance' 'parking on Common Property' 'owners Corporation Powers and Procedures']
['strata Law' 'consumer and Commercial'] ['by Law Compliance' 'parking on Common Property' 'owners Corporation Powers and Procedures']

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

Strata Dispute – Civil Application / Final Decision

Legal Issues

  1. 1 ["Whether the first respondents' parking of vehicles on common property complied with the by-laws of Strata Plan 61788" 'Whether the resolution (motion 20 AGM 4/8/17) concerning consent to park required a special or ordinary resolution' 'Whether the applicant was entitled to relief under by-laws 2, 3, 6, and 17' 'Whether any conduct constituted an obstruction or improper change of use as defined by the by-laws']

Ratio Decidendi

The written consent to park given by the Owners Corporation pursuant to an ordinary resolution under by-law 2 was valid and sufficient. The situation did not require a special resolution, as no by-law was changed nor was a licence granted. There was no breach of by-laws 2, 3, 6, or 17 based on the evidence. The application must be dismissed as the applicant failed to show non-compliance with the by-laws or invalidity of the AGM motion.

Court Disposition

Application dismissed

Orders

  • ['The application is dismissed' 'Each party is to bear their own costs']