Perpetual Corporate Trust Ltd v Owners Corporation SP6534; El Khouri v Owners Corporation SP6534 [2024] NSWSC 173

Perpetual Corporate Trust Ltd v Owners Corporation SP6534; El Khouri v Owners Corporation SP6534 [2024] NSWSC 173

Clause 30.3 of By-law 30 is unjust as it operates harshly to forfeit exclusive use rights despite no practical benefit to other lot owners and continuing obligations for maintenance and costs by Lot 11; several critical obligations under By-law 30 (work completion, insurance, payment of damages) were not met before the Sunset Date, but the sunset/forfeiture clause is unjust and cannot be relied upon.

Jurisdiction
Australia
Judgment Date
28 February 2024
Procedural Posture
Principal Judgment / Judgment After Trial
Outcome
Clause 30.3 of By-law 30 declared unjust; levies of November 2021 and April 2023 declared unreasonable; orders made for payment of assessed sums; both proceedings remitted to NSW Civil and Administrative Tribunal for orders arising from the declarations and findings; Executors' claim for damages dismissed.
Legal Topics
['strata Title' 'by Laws' 'exclusive Use Rights' 'equitable Remedies' 'damages' 'remittance to Tribunal' 'quantum of Monies Owing']
['land Law' 'equity'] ['strata Title' 'by Laws' 'exclusive Use Rights' 'equitable Remedies' 'damages' 'remittance to Tribunal' 'quantum of Monies Owing']

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Procedural Posture

Principal Judgment / Judgment After Trial

Legal Issues

  1. 1 ['Whether By-law 30 granting exclusive use rights was complied with' 'Whether clause 30.3 of By-law 30 (sunset/forfeiture provision) is unjust under the Strata Schemes Management Act 2015 (NSW)' 'Whether special levies claimed are unreasonable and/or excessive' 'Quantum of monies owing for strata levies and damages under By-law 30']

Ratio Decidendi

Clause 30.3 of By-law 30 is unjust as it operates harshly to forfeit exclusive use rights despite no practical benefit to other lot owners and continuing obligations for maintenance and costs by Lot 11; several critical obligations under By-law 30 (work completion, insurance, payment of damages) were not met before the Sunset Date, but the sunset/forfeiture clause is unjust and cannot be relied upon.

Court Disposition

Clause 30.3 of By-law 30 declared unjust; levies of November 2021 and April 2023 declared unreasonable; orders made for payment of assessed sums; both proceedings remitted to NSW Civil and Administrative Tribunal for orders arising from the declarations and findings; Executors' claim for damages dismissed.

Orders

  • ['Clause 30.3 of By-law 30 declared unjust.' 'Levies raised on 8 November 2021 and 27 April 2023 declared unreasonable.' 'In 2018/93444: Plaintiffs to pay defendant $450,369.37 and $128,569.42; after these are paid and a strata interest notice is given, Owners Corporation to provide certificate under clause 30.4 of...