STRATA TITLES — by-laws — common property rights by-laws — exclusive use of parking spaces and storeroom — agreed errors in registered consolidated by-laws — whether lot owner entitled to declarations concerning rights under original by-laws — where owners corporation does not dispute lot owner’s underlying rights — whether sufficient controversy and utility to support declaratory relief — owners corporation possess an interest in opposing relief — declarations made
REAL PROPERTY — correction of Register — powers of Supreme Court under s 138 of the Real Property Act 1900 (NSW) — distinction between a dealing and a recording in a folio of the Register — whether power to order amendment of a recording in a folio extends to orders requiring correction and lodgement of a set of consolidated by-laws — instrument “needed” to give effect to Court’s determination — power extends to orders concerning instrument and underlying recording — ancillary orders made
Quick Take
1The power of the Supreme Court under s 138(3) of the Real Property Act 1900 (NSW) to make ancillary orders concerning recordings in a folio of the Register extends, by virtue of s 138(5), to ordering the preparation and delivery of an instrument (such as a corrected set of consolidated strata by-laws) to the Registrar-General, and is not confined to amendments to the folio entry itself as distinct from the underlying dealing.
2An owners corporation that does not dispute a lot owner's substantive rights under common property rights by-laws nonetheless possesses a sufficient interest to oppose declaratory relief to constitute a proper contradictor; the absence of actual opposition goes to discretion, not jurisdiction, and declarations may still be made where they have utility — including to foreclose future disputation and to support applications to the Registrar-General.
3Where an alternative administrative remedy exists (such as an application to the Registrar-General under s 12(1)(d) of the Real Property Act 1900 (NSW)), this does not deprive the Court of power under s 138; the availability of an alternative is relevant only to whether the ancillary order is 'needed' to give effect to the Court's determination, and in circumstances of entrenched disputation the Court may exercise the power to bring the dispute to an end.
