Owners Corp Strata Plan v Charbel CJ Pty Ltd [2004] NSWSC 1286

Owners Corp Strata Plan v Charbel CJ Pty Ltd [2004] NSWSC 1286

Both defendants were using their premises as fast food outlets within the meaning of cl.19.1(a) of the Strata Management Statement. As lessees, they were bound to comply with the restriction by virtue of s.28W of the Strata Schemes (Freehold Development) Act 1973 (NSW) and the incorporation of the Statement into the by-laws. There was no inconsistency between the Statement and any condition of development consent. The plaintiff was entitled to injunctions restraining the conduct of fast food outlets.

Jurisdiction
Australia
Judgment Date
10 March 2005
Procedural Posture
Equity Proceedings Claim for Injunction / Judgment After Hearing
Outcome
Injunctions to be granted restraining each defendant from conducting a fast food outlet; further orders to be made pursuant to short minutes; defendants to pay plaintiff's costs.
Legal Topics
['strata Management Statement' 'negative Covenant' 'construction of Covenants' 'injunctive Relief' 'user of Premises' 'construction of by Laws']
['property Law' 'equity' 'strata and Community Title Law'] ['strata Management Statement' 'negative Covenant' 'construction of Covenants' 'injunctive Relief' 'user of Premises' 'construction of by Laws']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Equity Proceedings Claim for Injunction / Judgment After Hearing

Legal Issues

  1. 1 ['Whether lessees of retail strata lots are bound by a restriction in a Strata Management Statement prohibiting use as a fast food outlet' "Whether the businesses operated by the defendants are 'fast food outlets' within the meaning of the Strata Management Statement" 'Whether development consent conditions override the Strata Management Statement under s 28W(5) of the Strata Schemes (Freehold Development) Act 1973 (NSW)' 'What relief is appropriate in the circumstances']

Ratio Decidendi

Both defendants were using their premises as fast food outlets within the meaning of cl.19.1(a) of the Strata Management Statement. As lessees, they were bound to comply with the restriction by virtue of s.28W of the Strata Schemes (Freehold Development) Act 1973 (NSW) and the incorporation of the Statement into the by-laws. There was no inconsistency between the Statement and any condition of development consent. The plaintiff was entitled to injunctions restraining the conduct of fast food outlets.

Court Disposition

Injunctions to be granted restraining each defendant from conducting a fast food outlet; further orders to be made pursuant to short minutes; defendants to pay plaintiff's costs.

Orders

  • ['Plaintiff to bring in short minutes of order reflecting the judgment for injunctions restraining use of the premises as fast food outlets.' "Defendants to pay plaintiff's costs, including any reserved costs."]