Moussa v Owners Corporation of Strata Plan 65404 & Ors [2007] NSWLEC 807

Moussa v Owners Corporation of Strata Plan 65404 & Ors [2007] NSWLEC 807

The Court refused to extend the time for conclusion of the development scheme because the evidence did not show that the respondents caused the delay. The applicant registered the strata development contract without owning or controlling 33 Solander Street, did not obtain proprietary rights enabling development until 1 November 2007, and could not complete the authorised proposals by 31 December 2007. Extending the contract would bind the respondents to the whole development process after the contractual conclusion date and would cause substantial injustice not adequately ameliorated by consequential orders. Because the contract would cease to have effect on 31 December 2007, there was no...

Jurisdiction
Australia
Judgment Date
20 December 2007
Procedural Posture
Class 2 Proceedings Under Ss 28 K and 28 QA of the Strata Schemes (freehold Development) Act 1973 and Class 4 Proceedings Seeking Declarations and Orders Concerning a Strata Development Contract / Final Judgment After Hearing; Applications Dismissed
Outcome
Applications in proceedings No 20096 of 2007 and No 40097 of 2007 dismissed.
Legal Topics
['strata Development Contract' 'staged Development' 'development Lot' 'additional Land' 'concept Plans' 'extension of Time for Conclusion of Development Scheme' 'amendment of Strata Development Contract' 'declarations' 'estoppel, Election and Waiver' 'development Consent']
['planning and Environmental Law' 'strata Schemes' 'property Law' 'administrative Law'] ['strata Development Contract' 'staged Development' 'development Lot' 'additional Land' 'concept Plans' 'extension of Time for Conclusion of Development Scheme' 'amendment of Strata Development Contract' 'declarations' 'estoppel, Election and Waiver' 'development Consent']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 2 Proceedings Under Ss 28 K and 28 QA of the Strata Schemes (freehold Development) Act 1973 and Class 4 Proceedings Seeking Declarations and Orders Concerning a Strata Development Contract / Final Judgment After Hearing; Applications Dismissed

Legal Issues

  1. 1 ['Whether the Court should defer the time for conclusion of the development scheme until December 2008 under s 28QA of the Strata Schemes (Freehold Development) Act 1973.' 'Whether the Court should approve an amendment of the strata development contract under s 28K to address inconsistency between the concept plan and the plans for which development consent was granted.' 'Whether the strata development contract was invalid or unenforceable because 33 Solander Street was not identified as, or capable of being identified as, a development lot when the contract was registered, or because of alleged inadequacy of concept plans.' 'Whether the strata development contract later became unenforceable by waiver, election or estoppel or by breach of implied terms alleged by the respondents.' "Whether declarations and orders should be made concerning the parties' rights and obligations under the strata development contract." 'Whether the applicant was bound to contribute to common property expenses for development lot 6 before it was developed.']

Ratio Decidendi

The Court refused to extend the time for conclusion of the development scheme because the evidence did not show that the respondents caused the delay. The applicant registered the strata development contract without owning or controlling 33 Solander Street, did not obtain proprietary rights enabling development until 1 November 2007, and could not complete the authorised proposals by 31 December 2007. Extending the contract would bind the respondents to the whole development process after the contractual conclusion date and would cause substantial injustice not adequately ameliorated by consequential orders. Because the contract would cease to have effect on 31 December 2007, there was no...

Court Disposition

Applications in proceedings No 20096 of 2007 and No 40097 of 2007 dismissed.

Orders

  • ['Proceedings No 20096 of 2007: The application is dismissed.' 'Proceedings No 20096 of 2007: The exhibits are returned.' 'Proceedings No 20096 of 2007: Any application for costs is to be made by notice of motion within 28 days.' 'Proceedings No 40097 of 2007: The application is dismissed.' 'Proceedings No 40097 of...