The Owners Strata Plan No. 73943 v 2 Elizabeth Bay Road Pty Ltd

[2013] NSWSC 1769

Supreme Court of NSW

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Catchwords

1. STATUTORY CONSTRUCTION — Section 80D of the Strata Schemes Management Act 1996 (NSW) — meaning and effect — where proceedings commenced prior to resolution of the general meeting of owners corporation in contravention of s 80D(1) — whether statutory inhibition imposed by s 80D can be lifted by ex post facto resolution of the owners corporation at general meeting — whether resolution was passed within a reasonable time — HELD proceedings commenced without compliance with s 80D(1) are not a nullity and ex post facto resolution of a general meeting of owners corporation can remove statutory inhibition — HELD resolution passed within a reasonable time

Quick Take

The Court held that proceedings commenced by an owners corporation without a prior resolution under s 80D(1) of the Strata Schemes Management Act 1996 (NSW) are not a nullity, departing from the reasoning in Hall and Bakkante. Applying Berowra Holdings v Gordon, the Court found that s 80D(1) creates an imperfect obligation and does not curtail the court's jurisdiction; rather, a defendant must raise non-compliance within the relevant procedural framework. A subsequent resolution passed at a general meeting can remove the statutory inhibition, and in this case the resolution passed approximately five months after commencement of proceedings was within a reasonable time.