Noon v The Owners - Strata Plan No. 22422 [2014] NSWSC 1260

Noon v The Owners - Strata Plan No. 22422 [2014] NSWSC 1260

The plaintiffs had standing because their late father's interest in the Property had vested in them as executors with a grant of probate and their names were entered on the strata roll as owners. By-law 32 was invalid because, although it purported to confer exclusive use of common property on Astra, Astra was not a lot owner and the by-law was not made under s 58(7) of the Strata Titles Act 1973 (NSW); the general power in s 58(2) did not authorise such a by-law. By-law 32 was also inconsistent with statutory rights of lot owners to use and enjoy common property and was uncertain because "the Occupancy Agreement" was not identified with certainty. By-law 34 and the amendment to by-law 32...

Jurisdiction
Australia
Judgment Date
16 September 2014
Procedural Posture
Equity Division Proceedings Seeking Declaratory Relief Concerning Strata Scheme by Laws and Whether Property Is Used as a Retirement Village / Principal Judgment After Hearing
Outcome
Declarations to be made that by-laws 32 and 34 are invalid and of no effect, and that the Property is not used as a retirement village under the Retirement Villages Act 1999, known as Bondi Beach Astra Retirement Village.
Legal Topics
['validity of by Laws' 'exclusive Use of Common Property' 'statutory Power of Owners Corporation' 'uncertainty' 'declarations' 'standing' 'retirement Villages Act Recording']
['strata Schemes' 'retirement Villages' 'equity Remedies'] ['validity of by Laws' 'exclusive Use of Common Property' 'statutory Power of Owners Corporation' 'uncertainty' 'declarations' 'standing' 'retirement Villages Act Recording']

Case Brief

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Procedural Posture

Equity Division Proceedings Seeking Declaratory Relief Concerning Strata Scheme by Laws and Whether Property Is Used as a Retirement Village / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether by-law 32 was invalid because it conferred exclusive use of common property on an entity that was not a lot owner and was not made under s 58(7) of the Strata Titles Act 1973 (NSW).' 'Whether by-law 32 was repugnant to or inconsistent with statutory rights of lot owners to use and enjoy common property, including by reason of s 43(4) of the Strata Schemes Management Act 1996 (NSW).' 'Whether by-law 32 was void for uncertainty, particularly by referring to "the Occupancy Agreement".' 'Whether by-law 34 and the amendment to by-law 32 were validly made under the Strata Schemes Management Act 1996 (NSW).' 'Whether the plaintiffs had standing although they were not registered proprietors of the Property.' 'Whether the Property was used as a retirement village under the Retirement Villages Act 1999 (NSW).' 'Whether declaratory relief should be withheld on discretionary grounds including alternative remedies, delay and detriment.']

Ratio Decidendi

The plaintiffs had standing because their late father's interest in the Property had vested in them as executors with a grant of probate and their names were entered on the strata roll as owners. By-law 32 was invalid because, although it purported to confer exclusive use of common property on Astra, Astra was not a lot owner and the by-law was not made under s 58(7) of the Strata Titles Act 1973 (NSW); the general power in s 58(2) did not authorise such a by-law. By-law 32 was also inconsistent with statutory rights of lot owners to use and enjoy common property and was uncertain because "the Occupancy Agreement" was not identified with certainty. By-law 34 and the amendment to by-law 32...

Court Disposition

Declarations to be made that by-laws 32 and 34 are invalid and of no effect, and that the Property is not used as a retirement village under the Retirement Villages Act 1999, known as Bondi Beach Astra Retirement Village.

Orders

  • ['The parties are directed to bring in Short Minutes to give effect to the reasons.' 'Costs should follow the event.']