Walker v SP61618: NSWCA appeal
Walker Corporation Pty Ltd v The Owners – Strata Plan No 61618 [2023] NSWCA 125
In short
Leave to appeal granted due to the importance of the proper construction of the SSMA.
The SMS clause inconsistent with the SSMA and contrary to 105(5) of the Development Act.
The SMS clause was not authorised by the Development Act.
Appeal dismissed.
Background
See first instance case note for facts. The primary judge found that the SMS clause was:
uncertain;
inconsistent with the SSMA; and
beyond the power of the Development Act.
The Court also impugned the accompanying by-laws for similar reasons. The appellant primarily sought to appeal against the findings that the SMS clause was inconsistent with the SSMA.
The law
Section 105 of the Strata Schemes Development Act 2015 concerns the effect of strata managing statements and relevantly provides that:
(5) A strata management statement has no effect to the extent that it is inconsistent with—
(c) another Act or law.
Decision
The appellant’s primary contention was that the SMS was binding on each of the owners corporation by reason of s 105(1) of the Development Act and that the termination of the strata managing agent, which required a unanimous BMC resolution, could not be overruled by resolutions of individual owners corporations.
The Court of Appeal dismissed the appeal on the basis that the primary judge was correct to conclude that the SMS clause was contrary to s 105(5) of the Development Act given its inconsistency with the SSMA (in relation to the freedom to appoint a strata managing agent); and that it was otherwise not authorised by the Development Act.
[45] Clause 8.11 extinguished the right of the owners corporation, in general meeting, to appoint a strata managing agent of its choosing, and to terminate that agent’s services if that was considered necessary.
It was considered unnecessary to consider the invalidity for uncertainty.
The appeal was dismissed with costs.
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