Quest Rose Hill Pty Ltd v White [2010] NSWSC 1190

Quest Rose Hill Pty Ltd v White [2010] NSWSC 1190

The application to vary the principal judgment failed substantially because there was no substantive misapprehension of fact or law in the original judgment, and the proposed amendments did not add utility or clarify substantive rights beyond those already found. The declarations made reflect the proper construction of the attorney provisions in the leases, their limitations, and the parties’ obligations. As both sides achieved partial success, and given the history and conduct of both parties, the appropriate order is for each party to bear its own costs, except that Quest should pay the Landlords’ costs of the present notice of motion.

Parties
Plaintiff: Quest Rose Hill Pty Ltd; First Defendant: Bernard Keith White; Second Defendant: Stuart Gerald Maile; Third Defendant: Tracey Alison Maile; Fourth Defendant: Boban Kocoski; Fifth Defendant: Davone Inthachanh; Sixth Defendant: Peter Nicholas Viler; Seventh Defendant: Frederick Charles Naylor; Eighth Defendant: Lynette Gail Naylor
Jurisdiction
Australia
Judgment Date
18 October 2010
Procedural Posture
Notice of Motion to Vary Judgment / Post Judgment; Determination of Motion to Vary Principal Judgment and Costs
Outcome
Notice of Motion dismissed with costs; declarations made as to the construction and obligations arising from the attorney provisions of the leases; each party to bear its own costs except that Quest is to pay Landlords’ costs of the present motion; proceedings otherwise dismissed.
Legal Topics
Powers of Attorney Under Leases, Declaratory Relief, Declaratory Relief in Contracts, Costs Orders, Interpretation of Registered Leases, Owners Corporation Voting Rights
Equity Practice and Procedure Property Law Powers of Attorney Under Leases Declaratory Relief Declaratory Relief in Contracts Costs Orders Interpretation of Registered Leases +1 more

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Parties

Quest Rose Hill Pty Ltd

Plaintiff

Bernard Keith White

First Defendant

Stuart Gerald Maile

Second Defendant

Tracey Alison Maile

Third Defendant

Boban Kocoski

Fourth Defendant

Davone Inthachanh

Fifth Defendant

Peter Nicholas Viler

Sixth Defendant

Frederick Charles Naylor

Seventh Defendant

Lynette Gail Naylor

Eighth Defendant

Procedural Posture

Notice of Motion to Vary Judgment / Post Judgment; Determination of Motion to Vary Principal Judgment and Costs

Legal Issues

  1. 1 Whether clause 13.2 of the registered leases and clause 4 of the Deeds of Covenant were illegal, unenforceable, contrary to public policy, or unjust under the Contracts Review Act 1980 (NSW)
  2. 2 Issues as to scope and interpretation of powers of attorney provisions in the leases and Deeds
  3. 3 Whether the Landlords were entitled to vote at Owners Corporation meetings in light of the attorney provisions

Ratio Decidendi

The application to vary the principal judgment failed substantially because there was no substantive misapprehension of fact or law in the original judgment, and the proposed amendments did not add utility or clarify substantive rights beyond those already found. The declarations made reflect the proper construction of the attorney provisions in the leases, their limitations, and the parties’ obligations. As both sides achieved partial success, and given the history and conduct of both parties, the appropriate order is for each party to bear its own costs, except that Quest should pay the Landlords’ costs of the present notice of motion.

Court Disposition

Notice of Motion dismissed with costs; declarations made as to the construction and obligations arising from the attorney provisions of the leases; each party to bear its own costs except that Quest is to pay Landlords’ costs of the present motion; proceedings otherwise dismissed.

Orders

  • Notice of motion to vary principal judgment dismissed with costs (Quest to pay Landlords’ costs of the motion)
  • Declarations made as to the construction of clause 13 (per paragraph 75)