Elidock Pty Ltd v N B Stone & Associates Pty Ltd [2008] NSWSC 1278

Elidock Pty Ltd v N B Stone & Associates Pty Ltd [2008] NSWSC 1278

The right to occupy conferred by the articles was contractual only and, in context, did not necessarily include a right to reside. The head lease permitted marina, marina facilities, shops, restaurant and a caretaker's residence, so residential domicile use was not permitted except for a caretaker's residence. The first defendant had no entitlement to residential occupation and no operative equitable defence; the second defendant's circumstances warranted no injunction, but did not preclude an appropriate declaration. The first defendant did not show unfairly prejudicial or unfairly discriminatory conduct under s 233(1)(d).

Jurisdiction
Australia
Judgment Date
03 December 2008
Procedural Posture
Equity Proceedings Concerning Rights of Occupation of Marina Units and a Corporations Act Cross Claim / Principal Judgment
Outcome
Declaration of defendants' limited rights to occupy marina; matter stood over for short minutes, with the judge presently minded to dismiss the first defendant's cross-claim.
Legal Topics
['rights of Occupation Attached to Shares' 'use and Occupation' 'residence as Domicile' 'acquiescence and Estoppel' 'oppression Remedy Under Corporations Act 2001 (cth) S 233']
['corporations' 'landlord and Tenant' 'equity' 'property'] ['rights of Occupation Attached to Shares' 'use and Occupation' 'residence as Domicile' 'acquiescence and Estoppel' 'oppression Remedy Under Corporations Act 2001 (cth) S 233']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Rights of Occupation of Marina Units and a Corporations Act Cross Claim / Principal Judgment

Legal Issues

  1. 1 ['Whether rights of occupation conferred on E and F class shareholders included rights to reside in Units 5 and 7 as a domicile.' "Whether the head lease permitted residential use of Units 5 and 7 other than as a caretaker's residence." 'Whether the defendants established equitable defences of acquiescence or estoppel against declaratory or injunctive relief.' 'Whether the first defendant established unfairly prejudicial or unfairly discriminatory conduct warranting relief under s 233(1)(d) of the Corporations Act 2001 (Cth).']

Ratio Decidendi

The right to occupy conferred by the articles was contractual only and, in context, did not necessarily include a right to reside. The head lease permitted marina, marina facilities, shops, restaurant and a caretaker's residence, so residential domicile use was not permitted except for a caretaker's residence. The first defendant had no entitlement to residential occupation and no operative equitable defence; the second defendant's circumstances warranted no injunction, but did not preclude an appropriate declaration. The first defendant did not show unfairly prejudicial or unfairly discriminatory conduct under s 233(1)(d).

Court Disposition

Declaration of defendants' limited rights to occupy marina; matter stood over for short minutes, with the judge presently minded to dismiss the first defendant's cross-claim.

Orders

  • ["A declaration was indicated that the right of exclusive occupancy of Unit 5 granted by the plaintiff's articles did not create a right to reside in that unit as a domicile except as a caretaker's residence." "A declaration was indicated that the right of exclusive occupancy of Unit 7 granted by the plaintiff's...