The Owners Strata Plan No 57164 v Yau [2017] NSWCA 341

The Owners Strata Plan No 57164 v Yau [2017] NSWCA 341

Consent orders can only be set aside in the Court's inherent jurisdiction if the underlying agreement is void or voidable, and doing so is subject to the Court's discretion. In this case, non-compliance with notice requirements did not invalidate the Executive Committee's resolution, the EC had authority under s 21 to instruct counsel, the decision did not breach ss 65A or 80A, and senior counsel had actual and ostensible authority to settle. Even if authority were lacking, subsequent conduct amounted to ratification. Given that the orders had largely been performed, and the Owners Corporation had delayed seeking to set aside, the appeal failed.

Jurisdiction
Australia
Judgment Date
21 December 2017
Procedural Posture
Appeal / Judgment
Outcome
Appeal dismissed with costs.
Legal Topics
['strata Schemes' 'consent Orders' 'authority of Legal Representatives' 'ratification']
['real Property' 'procedure' 'agency'] ['strata Schemes' 'consent Orders' 'authority of Legal Representatives' 'ratification']

Case Brief

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Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 ["Whether consent orders can be set aside in the Court's inherent jurisdiction if the underlying settlement agreement is void or voidable" 'Effect of non-compliance with notice requirements for Executive Committee meetings under Strata Schemes Management Act 1996 (NSW), Sch 3, cl 6' "Whether the Executive Committee's decision breached ss 65A and 80A of the Strata Schemes Management Act" 'Actual or ostensible authority of senior counsel to settle proceedings' 'Ratification of any agreement by subsequent conduct of Owners Corporation']

Ratio Decidendi

Consent orders can only be set aside in the Court's inherent jurisdiction if the underlying agreement is void or voidable, and doing so is subject to the Court's discretion. In this case, non-compliance with notice requirements did not invalidate the Executive Committee's resolution, the EC had authority under s 21 to instruct counsel, the decision did not breach ss 65A or 80A, and senior counsel had actual and ostensible authority to settle. Even if authority were lacking, subsequent conduct amounted to ratification. Given that the orders had largely been performed, and the Owners Corporation had delayed seeking to set aside, the appeal failed.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']