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

(2014) 88 NSWLR 488; [2014] NSWCA 409

NSW Court of Appeal

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Interrogate

Catchwords

1. Strata Title
2. › Owners corporation
3. › Initiation of legal proceedings
4. › Approval by general meeting
5. › Whether resolution required before commencement of proceedings
6. › Whether subsequent resolution cures non-compliance
7. › Strata Schemes Management Act 1996 (NSW), s 80D
1. Statutory Interpretation
2. › Conditional prohibitions
3. › Consequences of non-compliance with statutory precondition
4. › Whether proceedings commenced in contravention of statutory prohibition invalid or a nullity
5. › Whether prohibition denies jurisdiction or engages discretionary procedural powers
6. › Project Blue Sky approach
7. › Strata Schemes Management Act 1996 (NSW), s 80D
1. Statutory Interpretation
2. › Use of dictionary definitions
3. › Whether dictionary definition of individual word assists construction of statutory provision
4. › Meaning determined by sentence as a whole not individual words in isolation
1. Corporations
2. › Statutory corporations
3. › Owners corporation
4. › Capacity to sue distinguished from authority to sue
5. › Whether statutory prohibition restricts corporate capacity or regulates exercise of power

Quick Take

Proceedings commenced by an owners corporation without prior approval at a general meeting as required by s 80D of the Strata Schemes Management Act 1996 (NSW) are not invalid or a nullity. Non-compliance engages the court's discretionary procedural powers. Where the breach is promptly cured by a subsequent approving resolution, the proceedings should not be stayed or dismissed. The distinction drawn in Owners SP No 46528 v Hall between proceedings against members and non-members is not supported. The executive committee's unauthorised initiation of proceedings is capable of ratification by a subsequent resolution at a general meeting.