Khadivzad v The Owners – Strata Plan 53457 [2019] NSWSC 157

Khadivzad v The Owners – Strata Plan 53457 [2019] NSWSC 157

By operation of s 52(3) of the Strata Schemes Management Act 1996 (NSW), two years after the purported repeal of the special by-law (even if the required written consents were not obtained), it is conclusively presumed that all statutory requirements were satisfied, and it is not open to the plaintiff to challenge the effectiveness of the repeal after such period.

Parties
Plaintiff: Khosrow Khadivzad; Defendant: The Owners – Strata Plan 53457
Jurisdiction
Australia
Judgment Date
26 February 2019
Procedural Posture
Summons / Principal Judgment – Final Decision After Hearing
Outcome
Summons dismissed
Legal Topics
Strata Title, By Law Repeal, Exclusive Use of Common Property, Statutory Presumption
Land Law Equity Strata Title By Law Repeal Exclusive Use of Common Property Statutory Presumption

Case Brief

Summary, issues, holding and outcome

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Parties

Khosrow Khadivzad

Plaintiff

The Owners – Strata Plan 53457

Defendant

Procedural Posture

Summons / Principal Judgment – Final Decision After Hearing

Legal Issues

  1. 1 Whether the purported repeal in 1999 of an exclusive use by-law was valid under the Strata Schemes Management Act 1996 (NSW)
  2. 2 Whether failure to obtain written consent from lot owners invalidated the repeal of the by-law
  3. 3 Effect of s 52(3) of the Strata Schemes Management Act 1996 (NSW) after two years on defective by-law repeal

Ratio Decidendi

By operation of s 52(3) of the Strata Schemes Management Act 1996 (NSW), two years after the purported repeal of the special by-law (even if the required written consents were not obtained), it is conclusively presumed that all statutory requirements were satisfied, and it is not open to the plaintiff to challenge the effectiveness of the repeal after such period.

Court Disposition

Summons dismissed

Orders

  • Summons dismissed, with no order as to costs.