Jennifer Elizabeth James v The Owners Strata Plan No. SP 11478 (No 4) [2012] NSWSC 590

Jennifer Elizabeth James v The Owners Strata Plan No. SP 11478 (No 4) [2012] NSWSC 590

Mr Anderson, as strata managing agent appointed under s 162 with all functions of the owners corporation, had power to make by-laws under ss 52 and 65A without a special resolution at a general meeting, and he did not act in fraud on power or otherwise improperly. Special by-law 3 was valid because it authorised...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
04 June 2012
Procedural Posture
Equity Proceedings Concerning Validity and Registration of Strata Scheme by Laws and Removal of Caveat / Final Determination Following Interlocutory Injunctions
Outcome
The plaintiff obtained final relief restraining registration of special by-laws 4 to 11, but was required to withdraw her caveat; special by-law 3 was not restrained.
Legal Topics
['validity of by Laws Made by Strata Managing Agent Appointed Under S 162 of the Strata Schemes Management Act 1996 (nsw)' 'exclusive Use by Laws' 'alteration and Enhancement of Common Property' 'fraud on Power and Fraud on Minority' 'procedural Fairness' 'caveat Withdrawal']
['strata Schemes' 'equity' 'administrative Powers of Strata Managing Agent'] ['validity of by Laws Made by Strata Managing Agent Appointed Under S 162 of the Strata Schemes Management Act 1996 (nsw)' 'exclusive Use by Laws' 'alteration and Enhancement of Common Property' 'fraud on Power and Fraud on Minority' 'procedural Fairness' 'caveat Withdrawal']

Source-derived case record

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

Equity Proceedings Concerning Validity and Registration of Strata Scheme by Laws and Removal of Caveat / Final Determination Following Interlocutory Injunctions

Legal Issues

  1. 1 ['Whether a strata managing agent appointed under s 162 of the Strata Schemes Management Act 1996 (NSW) had power to make by-laws concerning construction works and exclusive use of common property without a special resolution at a general meeting.' 'Whether Mr Anderson acted improperly, in fraud on power, oppressively, without procedural fairness, or in breach of duty in making the by-laws.' 'Whether special by-law 3 was validly made under s 65A of the Strata Schemes Management Act 1996 (NSW).' 'Whether special by-laws 4 to 11 were validly made under s 52 of the Strata Schemes Management Act 1996 (NSW), including whether written consent of the owners concerned was required before the by-laws were made and whether Mr Anderson could give that consent on behalf of lot owners.' "Whether the plaintiff's caveat should remain lodged."]

Ratio Decidendi

Mr Anderson, as strata managing agent appointed under s 162 with all functions of the owners corporation, had power to make by-laws under ss 52 and 65A without a special resolution at a general meeting, and he did not act in fraud on power or otherwise improperly. Special by-law 3 was valid because it authorised works improving or enhancing common property and did not invalidate the by-law merely because external wall works might affect interior paintwork. However, special by-laws 4 to 11 were invalidly made because s 52 required prior written consent from the owners of the lots on whom the exclusive use rights or special privileges were conferred, and Mr Anderson could not give that...

Court Disposition

The plaintiff obtained final relief restraining registration of special by-laws 4 to 11, but was required to withdraw her caveat; special by-law 3 was not restrained.

Orders

  • ['The defendant be restrained from registering special by-laws 4 to 11 made by Mr Anderson on 19 December 2011.' 'Within 7 days of the date of this judgment, the plaintiff withdraw caveat AG699803E.' 'If the parties cannot reach agreement in relation to the question of costs within 7 days of the date of this...