Owners Strata Plan SP 73019 v Brodyn Pty Ltd, Titanium Group Pty Ltd, Auscore Pty Ltd Brodyn Pty Ltd v Auscore Pty Ltd [2014] NSWCATCD 22

Owners Strata Plan SP 73019 v Brodyn Pty Ltd, Titanium Group Pty Ltd, Auscore Pty Ltd Brodyn Pty Ltd v Auscore Pty Ltd [2014] NSWCATCD 22

Although the managing agent had a valid agency agreement and delegated authority, the Tribunal was not satisfied that the agent made a reasonable estimate of the costs of taking legal action when the application was lodged, so the Regulation 15 exemption did not apply and the proceedings were not then authorised under section 80D. However, the Owners Corporation validly ratified the commencement and continuation of the proceedings by resolutions passed on 19 October 2009, and alternatively by the clear resolution of 20 December 2013. The resolution to allow the proceedings to lapse did not end the Tribunal proceedings, and there was no prejudice justifying dismissal. Accordingly, the...

Jurisdiction
Australia
Judgment Date
05 March 2014
Procedural Posture
Strata Schemes and Home Building Defects Proceedings / Interlocutory Application by the First Respondent for Leave to Amend Its Defence
Outcome
Application for leave to amend the first respondent's defence dismissed.
Legal Topics
['ratification' 'illegality' 'approval of Legal Action by Owners Corporation' 'leave to Amend Defence' 'section 80 D of the Strata Schemes Management Act 1996']
['strata Schemes' 'home Building' 'civil Procedure'] ['ratification' 'illegality' 'approval of Legal Action by Owners Corporation' 'leave to Amend Defence' 'section 80 D of the Strata Schemes Management Act 1996']

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Procedural Posture

Strata Schemes and Home Building Defects Proceedings / Interlocutory Application by the First Respondent for Leave to Amend Its Defence

Legal Issues

  1. 1 ['Whether the first respondent should be granted leave to amend its defence to allege that the proceedings were not authorised and should be dismissed.' 'Whether the commencement and maintenance of the proceedings complied with section 80D of the Strata Schemes Management Act 1996 and Regulation 15 of the Strata Schemes Management Regulation.' 'Whether the strata managing agent had authority under the management agency agreement to commence the proceedings.' 'Whether any lack of authority was subsequently ratified by resolutions of the Owners Corporation.' 'Whether the resolution to allow the proceedings to lapse brought the proceedings to an end.' 'Whether AON principles or Anshun estoppel prevented the first respondent from raising the issue.']

Ratio Decidendi

Although the managing agent had a valid agency agreement and delegated authority, the Tribunal was not satisfied that the agent made a reasonable estimate of the costs of taking legal action when the application was lodged, so the Regulation 15 exemption did not apply and the proceedings were not then authorised under section 80D. However, the Owners Corporation validly ratified the commencement and continuation of the proceedings by resolutions passed on 19 October 2009, and alternatively by the clear resolution of 20 December 2013. The resolution to allow the proceedings to lapse did not end the Tribunal proceedings, and there was no prejudice justifying dismissal. Accordingly, the...

Court Disposition

Application for leave to amend the first respondent's defence dismissed.

Orders

  • ["The application by the first respondent for leave to amend the first respondent's defence is dismissed." "The first respondent is to pay the applicant's costs of the application as agreed or assessed on an ordinary basis." 'The hearing to determine the substantive dispute listed to commence on 14 April 2014 is...