Jennifer Elizabeth James v The Owners Strata Plan 11478 [2014] NSWSC 337

Jennifer Elizabeth James v The Owners Strata Plan 11478 [2014] NSWSC 337

The plaintiff established a serious question to be tried because the works in by-law 46 could not be characterised merely as part of the by-law 40 balcony works, no relevant Anshun estoppel was shown, and there was a serious question whether the March 2012 agreement required the first defendant to maintain access to the rear stairs at least until commencement of the by-law 40 works. The first defendant was not yet in a position to commence the balcony construction works, and demolition of the stairs could leave Lot 3 without direct garden access for a lengthy period. The balance of convenience therefore justified restraining the by-law 46 works, but only on conditions requiring the...

Jurisdiction
Australia
Judgment Date
14 March 2014
Procedural Posture
Summons Seeking Declarations and Interlocutory Injunction Concerning Strata by Laws and Proposed Building Works / Interlocutory Application for Injunction
Outcome
Interlocutory injunction granted upon conditions.
Legal Topics
['interlocutory Injunction' 'serious Question to Be Tried' 'balance of Convenience' 'validity of Strata by Laws' 'exclusive Use of Common Property' 'removal of External Stairs']
['remedies' 'real Property' 'strata Schemes'] ['interlocutory Injunction' 'serious Question to Be Tried' 'balance of Convenience' 'validity of Strata by Laws' 'exclusive Use of Common Property' 'removal of External Stairs']

Case Brief

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Procedural Posture

Summons Seeking Declarations and Interlocutory Injunction Concerning Strata by Laws and Proposed Building Works / Interlocutory Application for Injunction

Legal Issues

  1. 1 ['Whether there was a serious question to be tried as to whether the first defendant could validly proceed with the works the subject of special by-law 46.' 'Whether the proposed works under special by-law 46 were merely part of the works authorised by special by-law 40.' 'Whether any Anshun estoppel precluded the plaintiff from relying on the March 2012 agreement concerning the new door or on by-law 36.' 'Whether special by-law 46 was invalid under s 65A of the Strata Schemes Management Act 1996 (NSW) or was oppressive to the plaintiff.' 'Whether the balance of convenience favoured restraining the removal of the rear stairs pending further order.']

Ratio Decidendi

The plaintiff established a serious question to be tried because the works in by-law 46 could not be characterised merely as part of the by-law 40 balcony works, no relevant Anshun estoppel was shown, and there was a serious question whether the March 2012 agreement required the first defendant to maintain access to the rear stairs at least until commencement of the by-law 40 works. The first defendant was not yet in a position to commence the balcony construction works, and demolition of the stairs could leave Lot 3 without direct garden access for a lengthy period. The balance of convenience therefore justified restraining the by-law 46 works, but only on conditions requiring the...

Court Disposition

Interlocutory injunction granted upon conditions.

Orders

  • ['Upon the plaintiff by her counsel giving the usual undertaking as to damages, and subject to stated conditions, the first defendant is restrained until further order from commencing or carrying out the works as defined in special by-law 46.' 'The plaintiff must pay within seven days the quarterly administration...