THE OWNERS - STRATA PLAN 78102 V THE OWNERS - STRATA PLAN 78101 & ORS [2010] NSWSC 973

THE OWNERS - STRATA PLAN 78102 V THE OWNERS - STRATA PLAN 78101 & ORS [2010] NSWSC 973

The expression "disputes regarding proportions" in clause 6.4 was broad and included disputes about proportions whether apportioned or varied. A dispute had arisen because the Building Management Committee had not completed its obligation to determine the shared facility percentages and the parties had failed to reach a compromised proposal. The first defendant was not in breach merely by failing to sign the Expert's letter because clause 18 did not require its consent to the appointment or impose a general cooperation obligation on a party making no submissions, although its stance impeded the agreed dispute process. An Expert should be appointed to determine any adjustments to the...

Jurisdiction
Australia
Judgment Date
01 September 2010
Procedural Posture
Equity Proceedings Concerning Strata Management Statement Dispute / Judgment After Hearing on Plaintiff's Application for Expert Determination and Related Relief
Outcome
Matter listed on 8 October 2010 at 10.00am; costs reserved.
Legal Topics
['strata Management Statements' 'shared Facilities and Shared Costs' 'expert Determination' 'dispute Resolution Clauses' 'amendment of Strata Management Statement' 'implied Terms']
['strata Management' 'equity' 'property Law' 'contract Law'] ['strata Management Statements' 'shared Facilities and Shared Costs' 'expert Determination' 'dispute Resolution Clauses' 'amendment of Strata Management Statement' 'implied Terms']

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Procedural Posture

Equity Proceedings Concerning Strata Management Statement Dispute / Judgment After Hearing on Plaintiff's Application for Expert Determination and Related Relief

Legal Issues

  1. 1 ['Whether a dispute had arisen within the meaning of clauses 6.4 and 18.1 of the Strata Management Statement regarding the proportions of Shared Costs.' "Whether the first defendant breached the Strata Management Statement by refusing to agree to the appointed Expert's requirements." 'Whether the Court should appoint an Expert to determine the appropriate apportionment or reapportionment of Shared Costs.' "Whether the Strata Management Statement contained an implied term requiring all parties to do what was necessary to permit amendment of the Strata Management Statement to give effect to an Expert's determination." 'What process should apply to amend the Strata Management Statement if an Expert determined adjustments to the Shared Costs.']

Ratio Decidendi

The expression "disputes regarding proportions" in clause 6.4 was broad and included disputes about proportions whether apportioned or varied. A dispute had arisen because the Building Management Committee had not completed its obligation to determine the shared facility percentages and the parties had failed to reach a compromised proposal. The first defendant was not in breach merely by failing to sign the Expert's letter because clause 18 did not require its consent to the appointment or impose a general cooperation obligation on a party making no submissions, although its stance impeded the agreed dispute process. An Expert should be appointed to determine any adjustments to the...

Court Disposition

Matter listed on 8 October 2010 at 10.00am; costs reserved.

Orders

  • ["The plaintiff's claim for damages against the thirteenth defendant was dismissed with costs, including indemnity costs from 21 June 2010." 'The matter is listed on 8 October 2010 at 10.00am.' 'The costs of the proceedings are reserved.']