Santai v The Owners - Strata Plan No. 77971 [2010] NSWSC 628

Santai v The Owners - Strata Plan No. 77971 [2010] NSWSC 628

The caretaking agreement was a caretaker agreement and the purported termination notice was ineffective. The letting agreement was not a caretaker agreement because it did not itself appoint Santai to assist in the owners corporation functions in s 40A(1); by-law 27.1(2) was valid because the holiday letting arrangements had a sufficient nexus with lots, common property and management of the strata scheme; and the letting agreement was not illegal or void merely because Santai lacked a licence when made, because the agreement did not require illegal performance and required compliance with applicable licensing laws. The letting termination notice was ineffective. The security services...

Jurisdiction
Australia
Judgment Date
17 June 2010
Procedural Posture
Equity Division Commercial List Proceedings Seeking Declaratory and Injunctive Relief Concerning Strata Scheme Agreements / Principal Judgment After Hearing
Outcome
Limited declaratory relief granted; amended summons otherwise dismissed; costs reserved for further argument.
Legal Topics
['caretaker Agreements Under the Strata Schemes Management Act 1996 (nsw)' 'validity of Strata by Laws' 'illegality and Enforceability of Contracts Involving Licensing Requirements' 'delegation of Owners Corporation Functions' 'declaratory Relief']
['strata Titles' 'contracts' 'practice and Procedure'] ['caretaker Agreements Under the Strata Schemes Management Act 1996 (nsw)' 'validity of Strata by Laws' 'illegality and Enforceability of Contracts Involving Licensing Requirements' 'delegation of Owners Corporation Functions' 'declaratory Relief']

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Procedural Posture

Equity Division Commercial List Proceedings Seeking Declaratory and Injunctive Relief Concerning Strata Scheme Agreements / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the caretaking agreement was a caretaker agreement and whether the purported termination notice was ineffective.' 'Whether the letting agreement was a caretaker agreement for the purposes of the Strata Schemes Management Act 1996 (NSW).' 'Whether by-law 27.1(2) authorising the letting agreement was invalid for want of sufficient connection with lots or common property or the functions of the Owners Corporation.' 'Whether the letting agreement was illegal, void or unenforceable because Santai did not hold a corporation licence under the Property, Stock and Business Agents Act 2002 (NSW) when the agreement was made and until 8 December 2008.' 'Whether the purported termination notice for the letting agreement was valid.' "Whether the security services agreement was a valid employment under s 13(1) of the Strata Schemes Management Act 1996 (NSW) or an impermissible delegation of the Owners Corporation's functions." 'Whether by-law 22.1 or by-law 27.1(4) validly authorised the facilities agreement.' 'Whether the Court should grant declaratory relief or leave issues to the statutory dispute resolution process under the Strata Schemes Management Act 1996 (NSW).']

Ratio Decidendi

The caretaking agreement was a caretaker agreement and the purported termination notice was ineffective. The letting agreement was not a caretaker agreement because it did not itself appoint Santai to assist in the owners corporation functions in s 40A(1); by-law 27.1(2) was valid because the holiday letting arrangements had a sufficient nexus with lots, common property and management of the strata scheme; and the letting agreement was not illegal or void merely because Santai lacked a licence when made, because the agreement did not require illegal performance and required compliance with applicable licensing laws. The letting termination notice was ineffective. The security services...

Court Disposition

Limited declaratory relief granted; amended summons otherwise dismissed; costs reserved for further argument.

Orders

  • ['Declare that the "Caretaking Agreement" made on 22 March 2007 between the defendant and the first plaintiff is a "caretaker agreement" within the meaning of s 40B of the Strata Schemes Management Act 1996 (NSW) (the SSM Act).' 'Declare that the document purporting to be a notice of termination of the said...