Jennifer Elizabeth James v The Owners Strata Plan No. SP 11478 (No 2) [2012] NSWSC 66

Jennifer Elizabeth James v The Owners Strata Plan No. SP 11478 (No 2) [2012] NSWSC 66

The injunctions were varied because the restraint on installing fire resistant ceilings resulted from an error in settling the previous orders, the fire safety works did not engage the serious question to be tried about consent for by-laws under ss 52 and 65A of the Strata Schemes Management Act 1996 (NSW), and the balance of convenience favoured allowing necessary fire safety works to proceed given the evidence of fire hazard and cost savings if the work was done together.

Jurisdiction
Australia
Judgment Date
16 February 2012
Procedural Posture
Interlocutory Applications / Defendant's Motion to Vary Interlocutory Orders Made by Slattery J on 23 December 2011
Outcome
The defendant's motion to vary the interlocutory orders was granted to dissolve the interim injunctions preventing specified fire safety works; costs were ordered to be the defendant's costs in the cause.
Legal Topics
['variation of Interlocutory Orders' 'error in Original Interlocutory Order' "court's Power to Vary Interlocutory Orders" 'strata Schemes Management' 'agent Appointed Under S 162 of Strata Schemes Management Act 1996 (nsw)' 'fire Safety Upgrade Works' 'common Property']
['practice and Procedure' 'real Property' 'strata Title'] ['variation of Interlocutory Orders' 'error in Original Interlocutory Order' "court's Power to Vary Interlocutory Orders" 'strata Schemes Management' 'agent Appointed Under S 162 of Strata Schemes Management Act 1996 (nsw)' 'fire Safety Upgrade Works' 'common Property']

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Procedural Posture

Interlocutory Applications / Defendant's Motion to Vary Interlocutory Orders Made by Slattery J on 23 December 2011

Legal Issues

  1. 1 ['Whether the interlocutory orders made by Slattery J should be varied because the restraint on installing fire resistant ceilings resulted from an error.' 'Whether the fire safety upgrade works, including installation of fire resistant ceilings, were within the scope of the serious question to be tried concerning ss 52 and 65A of the Strata Schemes Management Act 1996 (NSW).' 'Whether the balance of convenience favoured permitting the Owners Corporation to carry out the fire safety upgrade works now.']

Ratio Decidendi

The injunctions were varied because the restraint on installing fire resistant ceilings resulted from an error in settling the previous orders, the fire safety works did not engage the serious question to be tried about consent for by-laws under ss 52 and 65A of the Strata Schemes Management Act 1996 (NSW), and the balance of convenience favoured allowing necessary fire safety works to proceed given the evidence of fire hazard and cost savings if the work was done together.

Court Disposition

The defendant's motion to vary the interlocutory orders was granted to dissolve the interim injunctions preventing specified fire safety works; costs were ordered to be the defendant's costs in the cause.

Orders

  • ['An order dissolving the interim injunctions granted by Slattery J on 23 December 2011 which prevent the defendant from carrying out the following fire safety works: (a) lining all timber floors separating units 1, 2, 3 and 4 with materials to achieve a fire resistant level of 90/90/90 in accordance with CSR...