7 Kenneth Street

EQUITY - application for interlocutory injunction - a lot owner in a strata scheme seeks to restrain the owners corporation from entering into a building contract - the proposed building contract has a component of fire safety works designed to achieve compliance with the local Council's notices under Environmental Planning and Assessment Act 1979 s121B and s121H - another component of the work is arguably to improve or enhance common property - whether the execution of any part of the proposed contact should be restrained - whether serious question to be tried -- assessment of the balance of convenience - REAL PROPERTY - strata title - management and control - strata managing agent appointed to defendant owners corporation under Strata Schemes Management Act 1996 ("SSM Act") s 162 - whether arguable that the terms of the appointment of the strata managing agent do not displace the requirement for a lot owner's consent to the owners corporation making a by-law to which SSM Act s52 applies.

STRATA SCHEMES - whether by-laws validly made by strata managing agent appointed under s 162 of the Strata Schemes Management Act 1996 - limits on power of agent appointed under s 162 - whether agent can make by-laws concerning construction and exclusive use - whether special resolution of general meeting of owners corporation required before by-laws can be made - held agent has power to make relevant by-laws. STRATA SCHEMES - whether agent appointed under s 162 acted improperly in exercising his powers - application of "fraud on power" and "fraud on minority" doctrines - whether agent has duty to afford procedural fairness to lot owners when making decisions - whether agent owes duty of care to lot owners when exercising powers conferred under s 162 - held agent did not act improperly. STRATA SCHEMES - by-law authorising construction work under s 65A - whether by-law passed for purpose of "improving or enhancing the common property" - whether removal of external wall is alteration of individual lot - held by-law validly made. STRATA SCHEMES - by-law conferring right of exclusive used under s 52 - whether agent appointed under s 162 can give consent on behalf of lot owners concerned by by-law - meaning of "owner or owners of lot concerned" - whether consent required before by-law passed - held by-laws invalidly made because no written consent of owners concerned.

APPEAL – leave to appeal – litigant in person – allegations of negligence, oppression and fraud on minority concerning conduct and management of strata scheme by Owners Corporation rejected on bases including failure to prove loss/detriment– where applicant sought to refer to expert evidence not used at trial – no evidence why not available at trial – whether leave to appeal should be granted PRACTICE AND PROCEDURE – procedural fairness – where primary judge refused numerous adjournment applications by litigant in person claiming to be not fit to conduct case – where primary judge afforded litigant in person latitude in conduct of case – whether denial of procedural fairness warranting grant of leave to appeal

REAL PROPERTY – strata title – management and control – strata managing agent appointed to exercise all the functions of an owners corporation – whether strata managing agent owed duty of care to individual lot owners to exercise reasonable care so as to prevent economic or financial loss – whether strata managing agent negligent in carrying on functions of Owners Corporation – whether alleged negligence caused loss to plaintiff REAL PROPERTY – strata title – management and control – oppression and fraud on the minority – whether scope of powers conferred under Strata Schemes Management Act 1996 (NSW) s 162(1)(a) limited by reasons for appointment – whether powers exercised bona fide for proper purposes – whether exercise of powers of Owners Corporation operated oppressively towards or amounted to fraud on the minority against plaintiff

PRACTICE AND PROCEDURE - Variation of interlocutory orders - Error in original order - Court's power to vary. REAL PROPERTY - Strata title - Power of agent appointed under s 162 of Strata Schemes Management Act 1996 to make certain resolutions without consent of individual lot owner

COSTS – offers of compromise – “walk away” offer made by defendants – offer not accepted by plaintiff – defendants obtain order no less favourable than terms of offer – whether offer triggers prima facie entitlement to indemnity costs – Uniform Civil Procedure Rules 2005 (NSW) r 42.15A