Motor Group Australia Pty Ltd v Owners Corporation Strata Plan 64622 [2004] NSWSC 633

Motor Group Australia Pty Ltd v Owners Corporation Strata Plan 64622 [2004] NSWSC 633

There was no contract or representation entitling the plaintiff to use common property without payment; no misleading and deceptive conduct or unconscionability was established; reliance necessary for estoppel was not present as neither party contemplated the signage was on common property; upon notice and refusal to pay, the plaintiff's continued use constituted a trespass. The proper remedy is a mandatory injunction for removal of the signage and doors from common property rather than damages.

Parties
Plaintiff: Motor Group Australia Pty Ltd; First Defendant: The Owners Strata Plan 64622
Jurisdiction
Australia
Judgment Date
19 August 2004
Procedural Posture
Civil / Judgment After Hearing
Outcome
Plaintiff's claims dismissed; cross-claim succeeds in part.
Legal Topics
Misleading & Deceptive Conduct, Unconscionable Conduct, Equitable Estoppel, Trespass to Land, Licensing of Common Property, Injunctions
Contract Law Equity Tort Law Trade Practices Misleading & Deceptive Conduct Unconscionable Conduct Equitable Estoppel Trespass to Land +2 more

Case Brief

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Parties

Motor Group Australia Pty Ltd

Plaintiff

The Owners Strata Plan 64622

First Defendant

Procedural Posture

Civil / Judgment After Hearing

Legal Issues

  1. 1 Whether there was an agreement that the plaintiff could use the common property without fee
  2. 2 Whether the conduct of the defendant was misleading or deceptive
  3. 3 Whether the defendant engaged in unconscionable conduct or whether estoppel applies

Ratio Decidendi

There was no contract or representation entitling the plaintiff to use common property without payment; no misleading and deceptive conduct or unconscionability was established; reliance necessary for estoppel was not present as neither party contemplated the signage was on common property; upon notice and refusal to pay, the plaintiff's continued use constituted a trespass. The proper remedy is a mandatory injunction for removal of the signage and doors from common property rather than damages.

Court Disposition

Plaintiff's claims dismissed; cross-claim succeeds in part.

Orders

  • Injunction requiring plaintiff, within 28 days, to remove the signage from the common property on the roof and in the garden bed, to remove roller doors, and to make good the concrete walls used for showroom access.