Tan v The Owners Strata Plan No 22014 [2015] NSWSC 71

Tan v The Owners Strata Plan No 22014 [2015] NSWSC 71

Orders 3 and 4 made on 26 August 2014 were set aside because, on the proper construction of the Tribunal's orders, Whelan Property Group held the exclusive power to exercise the functions of the Owners Corporation's executive committee. The executive committee therefore lacked authority to appoint Terrett Lawyers or authorise consent orders on behalf of the Owners Corporation. The Owners Corporation's purported appearance was ineffective because its legal representatives had no valid retainer, and the consent agreement underlying the orders was legally defective. Whelan had not resigned or otherwise ceased to hold office.

Jurisdiction
Australia
Judgment Date
19 February 2015
Procedural Posture
Application to Set Aside Consent Orders / Notice of Motion Heard in the Equity Division After Interlocutory Relief
Outcome
Application granted in part; orders 3 and 4 made on 26 August 2014 to be set aside, with other matters to be addressed by short minutes of order.
Legal Topics
['setting Aside Consent Orders' 'authority of Legal Representatives' 'strata Managing Agent Appointed Under Strata Schemes Management Act 1996 (nsw), S 162' 'functions of Owners Corporation Executive Committee' 'uniform Civil Procedure Rules (nsw), R 36.16(2)(b)']
['civil Procedure' 'strata Schemes'] ['setting Aside Consent Orders' 'authority of Legal Representatives' 'strata Managing Agent Appointed Under Strata Schemes Management Act 1996 (nsw), S 162' 'functions of Owners Corporation Executive Committee' 'uniform Civil Procedure Rules (nsw), R 36.16(2)(b)']

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Procedural Posture

Application to Set Aside Consent Orders / Notice of Motion Heard in the Equity Division After Interlocutory Relief

Legal Issues

  1. 1 ['Whether orders 3 and 4 made on 26 August 2014 should be set aside because the Owners Corporation was not effectively represented when those orders were made.' 'Whether the executive committee resolutions appointing Terrett Lawyers and authorising consent orders were invalid because Whelan Property Group had exclusive power to exercise the functions of the executive committee.' 'Whether Whelan Property Group had ceased to hold office or abandoned its appointment as strata managing agent before the executive committee resolutions.']

Ratio Decidendi

Orders 3 and 4 made on 26 August 2014 were set aside because, on the proper construction of the Tribunal's orders, Whelan Property Group held the exclusive power to exercise the functions of the Owners Corporation's executive committee. The executive committee therefore lacked authority to appoint Terrett Lawyers or authorise consent orders on behalf of the Owners Corporation. The Owners Corporation's purported appearance was ineffective because its legal representatives had no valid retainer, and the consent agreement underlying the orders was legally defective. Whelan had not resigned or otherwise ceased to hold office.

Court Disposition

Application granted in part; orders 3 and 4 made on 26 August 2014 to be set aside, with other matters to be addressed by short minutes of order.

Orders

  • ['The Court will make an order that orders 3 and 4 made by the Court on 26 August 2014 be set aside.' 'The parties are to bring in short minutes of order to implement the order proposed in order 1 and the other matters referred to in par 79 of these reasons for judgment.']