EB 9 & 10 Pty Ltd v The Owners Strata Plan 934

(2018) 98 NSWLR 889; [2018] NSWCA 288

NSW Court of Appeal

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Interrogate

Catchwords

1. Land Law
2. › Strata titles
3. › Proceedings by lot owner against owners corporation
4. › Lot owner obtains declaratory relief establishing limited right apart from strata titles legislation to use part of common property
5. › Successful plaintiff ordered to pay costs of unsuccessful defendant
6. › Whether result compelled by strata titles legislation
7. › Whether taking of proceedings not justified because strata titles legislation made adequate provision for enforcement of plaintiff's rights or remedies
8. › Strata Schemes Management Act 1996 (NSW), ss 61(1), 138, 207, 208, 226(2)
1. Practice and Procedure
2. › Costs
3. › Departure from general rule that costs follow the event
4. › Provision of strata titles legislation requiring successful plaintiff to pay costs of unsuccessful defendant
5. › Whether applicable
6. › Strata Schemes Management Act 1996 (NSW), s 226(2)
1. Practice and Procedure
2. › Declaratory relief
3. › Whether proceedings seeking purely declaratory relief are proceedings to 'enforce' a right or remedy
4. › Binding declarations of right as means of enforcement
5. › Implied liberty to apply for further relief

Quick Take

Lot owners in NSW strata schemes who have rights apart from the strata titles legislation should consider pursuing enforcement through the statutory dispute resolution regime (Adjudicators/NCAT) rather than the Supreme Court, as the court may order them to pay the defendant's costs under s 226(2) even if they succeed on the merits.