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Supreme Court of New South Wales - Court of Appeal |
Last Updated: 7 February 2003
NEW SOUTH WALES COURT OF APPEAL
CITATION: Owners Strata Plan No 50411 & Ors v Cameron North Sydney Investments Pty Ltd [2003] NSWCA 5
FILE NUMBER(S):
40738/02
HEARING DATE(S): 2 September 2002
JUDGMENT DATE: 06/02/2003
PARTIES:
Owners Strata Plan No 50411 (First Claimant)
Roderick Holdings Pty Ltd (Second Claimant)
Windermere Holdings Pty Ltd (Third Claimant)
Elem Investments Pty Ltd (Fourth Claimant)
Cameron North Sydney Investments Pty Ltd (Opponent)
JUDGMENT OF: Giles JA Heydon JA Santow JA
LOWER COURT JURISDICTION: Supreme Court
LOWER COURT FILE NUMBER(S): ED 3812/02
LOWER COURT JUDICIAL OFFICER: Young CJ in Eq
COUNSEL:
Mr B A J Coles QC/Mr S J Burchett (Claimants)
Mr J T Gleeson SC/Mr A J McInerney (Opponent)
SOLICITORS:
Cowley Hearne & Associates (Claimants)
Gadens (Opponent)
CATCHWORDS:
Equity - property law - planning and environment - application for leave to appeal - development application lodged by lot owner - rejection of development application by council - strata scheme - body corporate - owners corporation - whether body corporate can refuse consent to development application - whether body corporate is included in definition of 'owner' - regulation 46(1)(b) EPA Act - whether development application concerned common property - Whether Halpin's case should be reconsidered - jurisdiction of Supreme Court - council - joinder - Whether the rights and liabilities of council were directly affected - notice of contention - D
LEGISLATION CITED:
Environmental Planning and Assessment (Amendment) Act 1997
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Local Government Act 1919
Statute Law Revision (Local Government) Act 1995
Strata Schemes (Freehold Development) Act 1973
Strata Schemes Management Act 1996
Strata Schemes (Miscellaneous Amendments) Act 1996
Strata Titles Act 1973
Strata Titles (Freehold Development) Act 1973
Strata Titles Management Act 1973
DECISION:
172
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40738/02
ED 3812/02
GILES JA
HEYDON JA
SANTOW JA
6 February 2003
CAMERON NORTH SYDNEY INVESTMENTS PTY LTD
1 GILES JA: Cameron North Sydney Investments Pty Ltd ("Cameron") is the registered proprietor of Lot 1 in Strata Plan No 50411 ("Lot 1" and "the strata plan"). Cameron wished to lodge with North Sydney Council ("the Council") a development application in relation to Lot 1. On 7 August 2002 Young CJ in Eq ordered that The Owners Strata Plan No 50411, the owners corporation for the strata scheme ("the owners corporation"), consent to the making of the development application.
2 The owners corporation and all but one of the registered proprietors of the other lots in the strata plan applied for leave to appeal from the order. Cameron propounded a notice of contention and a notice of cross-appeal in the event that leave to appeal was granted. Full argument was heard, in part orally and with extensive further written submissions, so that if leave to appeal were granted all matters could immediately be disposed of.
The legal background
3 Section 78A(1) of the Environmental Planning and Assessment Act 1979 ("the EPA Act") provides that a person may, subject to the regulations, apply to a consent authority for consent to carry out development.
4 By cl 49(1) of the Environmental Planning and Assessment Regulation 2000 ("the EPA Regulation") -
"(1) A development application may be made:
(a) By the owner of the land to which the development application relates; or
(b) By any other person, with the consent in writing of the owner of that land."
5 By s 4 of the EPA Act "owner" -
" ... has the same meaning as in the Local Government Act 1993 and includes, in Division 2A of Part 6, in relation to a building, the owner of the building or the owner of the land on which the building is erected."
The word has the same meaning in cl 49 of the EPA Regulation, see s 11 of the Interpretation Act 1997.
6 The meaning given to "owner" in the Local Government Act 1993 relevantly provides -
"(b) In relation to land other than Crown land, includes:
(i) Every person who jointly or severally, whether at law or in equity, is entitled to the land for any estate of freehold in possession; and
(ii) Every such person who is entitled to receive, or is in receipt of, or if the land were let to a tenant would be entitled to receive, the rents and profits of the land, whether as beneficial owner , trustee, mortgagee in possession or otherwise; and
(iii) In the case of land that is the subject of a strata scheme under the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986 the owners corporation for that scheme constituted under the Strata Schemes Management Act 1996; ... "
7 In Halpin v Sydney City Council (2000) 110 LGERA 464 Cowdroy J held that the owners corporation for a strata scheme is the owner which, pursuant to cl 49 of the EPA Regulation, must make or consent to a development application in relation to a lot in the strata plan, and that in the absence of the consent of the owners corporation a development application made by the registered proprietor of a lot in the strata plan does not comply with s 78A(1) of the EPA Act.
The factual background
8 Cameron acquired 153 Walker Street, North Sydney in about 1970. It constructed a multi-storey commercial building. In October 1995 it registered the strata plan, by which the building was divided into 16 lots. By various transfers thereafter four other companies came to be registered proprietors of Lots 2 to 16. Cameron retained Lot 1.
9 Three of the other companies, together registered as proprietors of twelve of the lots, are broadly associated companies. Together they control almost 70 per cent of the voting power in the owners corporation. In the proceedings at first instance the owners corporation and all the registered proprietors of the other lots in the strata plan were jointly represented, and the owners corporation and the three companies were jointly represented in this Court.
10 Lot 1 is on the ground floor of the building, and is the only lot on that floor. The remainder of the ground floor is common property. The boundaries of Lot 1 are generally the inside surfaces of the building wall and an internal wall, the external surface of a glass wall dividing it from the entry foyer, and a line along the internal face of columns at the front (west) of the building.
11 The western end of Lot 1 between the internal face of the columns and some shop front windows is not enclosed. It is effectively used as if it were part of the common property. At the heart of the litigation lies Cameron's endeavours, resisted by the registered proprietors of the other lots, to enclose the western end of Lot 1.
12 In October 1999 Cameron exchanged contracts for the sale of Lot 1, conditional upon the purchaser obtaining development consent for its use as a restaurant. The purchaser lodged a development application with the Council; the development application included enclosing the western end of Lot 1. The Council told the purchaser that the consent of the owners corporation was required.
13 The owners corporation refused to consent to the making of the development application. It wrote to the Council maintaining that its consent was necessary and that it was not lawful for the Council to approve the application. There was extensive correspondence with the purchaser and others, in which the owners corporation gave reasons for opposing the restaurant development. The consent was still refused. After some time the purchaser rescinded the contract.
14 In maintaining that its consent was necessary, the owners corporation stated that the development included structural alterations to the building and that as owner of the building structure it was an owner of the land to which the development related within the meaning of cl 46 of the EPA Regulation. It is by no means clear that the owners corporation's reasoning was that its consent was necessary simply because it was the owners corporation for the strata scheme, as was the effect of Halpin v Sydney City Council. However, at no time in the correspondence or later dealings, as will be seen including before Young CJ in Eq, was there dissent from the need for the owners corporation's consent to Cameron making a development application.
15 Cameron received other expressions of interest in purchasing Lot 1, all subject to development consent including enclosure of the western end of Lot 1.
16 In October 2001 Cameron lodged a development application with the Council proposing the removal of the shop front windows, the enclosure of the western end of Lot 1, the installation of new doors in the glass wall, and some alterations to the access to the amenities within the lot. It was told by the Council that the consent of the owners corporation was required. It asked for consent. At the Annual General Meeting of the owners corporation held on 30 January 2002 a motion for provision of the consent of the owners corporation was put and lost. (The evidence of this episode tended to be in terms of consent to the alterations involved in the development, or to the development application, rather than consent to making the development application. All concerned must have been well aware that consent to making the development application was in issue. The shorthand of consent to the development application was not uncommon in the proceedings, including in some of the legal documents, and the same comment is appropriate.)
17 In March 2002 Cameron entered into a put and call option with a purchaser of Lot 1, conditional on approval of a development application. In April 2002 it asked by letter for the owners corporation's consent to a slightly amended development application. Consent was not forthcoming. Rather than have it refused by the Council, Cameron withdrew the development application.
18 By subsequent variation, the put and call option could be terminated if a development application was not lodged with the Council by 7 August 2002. Cameron was told by the Council that it would need the consent of the owners corporation. It prepared another development application for the same works as proposed in October 2001. By a letter dated 18 July 2002 it sent the proposed development application to the owners corporation and requested that a meeting of the executive committee of the owners corporation be held to decide whether consent would be given to making of the development application. It threatened legal action, and it is tolerably clear that Cameron intended to lay the basis for the application which was heard by Young CJ in Eq.
19 By a letter dated 24 July 2002 Cameron was told that an extraordinary general meeting of the owners corporation would be called for 6 August 2002. In fact a meeting was held on 2 August 2002. It was resolved that the owners corporation "oppose the works described in the development application" pending receipt of an architectural report and "not ... affix its seal to the development application".
The proceedings below
20 On 30 July 2002 Cameron brought proceedings against the owners corporation and the registered proprietors of the other lots. By its amended summons filed on 2 August 2002 it claimed a declaration that the conduct of the owners corporation and the registered proprietors of the other lots was oppressive and constituted "fraud on the minority in equity"; an order that the owners corporation consent to the making of the development application enclosed with the letter of 18 July 2002; an order that the owners corporation and the registered proprietors of the other lots pay equitable compensation or alternatively damages for the refusals to give consent in relation to the restaurant development, the development application of October 2001 and the proposed development application of July 2002; and an order for an inquiry into the loss it had suffered.
21 The proceedings came before Young CJ in Eq on an application for the order that the owners corporation consent to the making of the proposed development application of July 2002, purportedly as an application for interlocutory relief impelled by imminent termination of the put and call option. Cameron's outline of submissions expressly confined the relief sought to that order. It posed three issues: whether the consent of the owners corporation was necessary for a valid development application, if the consent was necessary whether the owners corporation was obliged to provide consent, and if the owners corporation was not so obliged whether it had acted "unreasonably or unlawfully" in refusing to provide consent. In the outline of submissions Cameron said that the answer to the first issue was yes in accordance with Halpin v Sydney City Council, and that the answers to the second and third issues should be yes.
22 At the commencement of the hearing Young CJ in Eq raised whether Halpin v Sydney City Council had been correctly decided. He was told by counsel for Cameron that it was common ground between the parties "that the law in Halpin was correct". His Honour said, "I have my doubts, but if the parties agree on that point and I see why they may as it is a decision of a superior court, then that is how we must proceed". He asked the position of the other parties, and their solicitor said they agreed "that Halpin is correct". In his reasons (Cameron North Sydney Investments Pty Ltd v The Owners Strata Plan No 50411 [2002] NSWSC 726) his Honour said that he had "serious doubts" as to the correctness of Halpin v Sydney City Council, but that he "probably need[ed] to deal with the case on the basis that Halpin's case, being a decision of a superior court, is correct."
23 Young CJ in Eq held that an owners corporation is obliged to give its consent to the lodgement of a development application unless there is a lawful reason not to do so, finding guidance particularly in Kirkjian v Towers (Waddell CJ in Eq, 6 July 1987, unreported), and that s 65 of the Supreme Court Act 1970 gave power to order that consent be given. As I understand the reasons, by saying unless there is lawful reason not to do so his Honour meant unless it is unlawful. Important in his Honour's reasoning, it seems, was that the registered proprietor of a lot in a strata scheme holds a fee simple, and that unless the owners corporation were obliged to consent to the lodgement of a development application there would be frustration of the generally unfettered incidents of that ownership. His Honour said that, although consenting to the making of the development application, the owners corporation would be entitled to oppose the grant of development consent.
24 The reasons given by the owners corporation for opposing the restaurant development had concerned its aesthetic and functional impact, and in later communications about the subsequent development proposals the owners corporation had said in effect that it and the registered proprietors of the other lots considered the enclosure of the western end of Lot 1 detrimental to the appearance of and access to the building with consequent effect on the building's value and the value and rental value of the lots. The evidence before Young CJ in Eq included an affidavit from an officer of the three companies and chairman of the owners corporation proffering that justification for the refusal of consent, and both sides read architects' affidavits directed to its basis. There was no cross-examination of the officer or of the architects.
25 His Honour made no finding as to the reasonableness of the owners corporation's stance or that of the registered proprietors of the other lots. Nor did his Honour refer at all to the submissions in Cameron's outline of submissions that the owners corporation's refusal to give consent amounted to a fraud on a power and that by not voting to give consent the registered proprietors of the other lots acted oppressively and committed a fraud on the minority.
26 Young CJ in Eq concluded his reasons -
"33 Accordingly, although as I say in my personal view of the law the question being litigated does not arise, on the basis which I have adopted, the plaintiff is entitled to relief. However, the plaintiff is not relying on any equity because the right that is relied on is some implied statutory right. Accordingly, there would be no question of there being any equitable compensation and there is insufficient before me to suggest that breach of any statutory duty to consent necessarily gives rise to a claim for civil damages by a person affected. However, I think I should reserve further consideration of that aspect of the case so it can be argued properly without the current pressure of time."
27 When making orders his Honour reserved further consideration "including as to damages".
Is leave to appeal required?
28 In the affidavits read before Young CJ in Eq Cameron asserted loss of the order of $600,000. It was suggested, albeit faintly, that there was an appeal as of right notwithstanding that the claim to damages remained outstanding. (The claim to relief against oppression and fraud on the minority was also outstanding.) Leave is required to appeal from "an interlocutory judgment or order in proceedings in the Court" (Supreme Court Act s 101(2)(e)). The distinction between final and interlocutory judgments and orders is sometimes unclear, but the reasoning in Computer Edge Pty Ltd v Apple Computer Inc [1984] HCA 47; (1984) 54 ALR 767 is against the suggestion and explains the diffidence with which it was made. In any event, for reasons which will appear I consider that leave to appeal should be granted.
Raising the correctness of Halpin v Sydney City Council
29 Cameron sought to raise whether Halpin v Sydney City Council was correct. It submitted that leave to appeal should be refused because this Court should so hold and the consent to making the development application given pursuant to the order of Young CJ in Eq would become an irrelevancy. The notice of contention included that Halpin v Sydney City Council was incorrect, and the notice of cross-appeal included that Young CJ in Eq should have so held and claimed a convoluted declaration which came down to Halpin v Sydney City Council being incorrect.
30 The amended summons assumed the correctness of Halpin v Sydney City Council. It relevantly claimed an order that the owners corporation consent to the making of the development application, a claim which had meaning only if consent was necessary. When Young CJ in Eq raised the correctness of the decision, his Honour was told that the parties agreed that it was correct. The question proffered and determined was whether or not the owners corporation was obliged, and could be ordered, to give consent, that being a live question with practical content because the Council and the owners corporation said that the owners corporation's consent was required and Cameron agreed.
31 Quite apart from its express acceptance that Halpin v Sydney City Council was correct, Cameron could not have argued before Young CJ in Eq that it was incorrect. If the consent of the owners corporation to the making of the development application was not required, Cameron would not have been entitled to the relief it sought.
32 Even if Halpin v Sydney City Council was not correct, I do not think leave to appeal should for that reason be refused. The owners corporation has been compelled by Court order to do something which it contends it should not have been compelled to do. So long as the order and the basis for the order remain, the owners corporation and the registered proprietors of the other lots are exposed to a claim to significant damages. These past and potential imposts upon the owners corporation and the registered proprietors of the other lots should not be left in being, immune from present challenge, through Cameron now having it held that it did not need the owners corporation's consent to making the development application at all. There was no suggestion that Cameron abandoned its claim to damages.
33 The decision of Young CJ in Eq would not be affirmed by a holding on appeal that Halpin v Sydney City Council was incorrect; such a holding would matter not to his Honour's decision. Given the agreement of the parties that it was correct, of course, Young CJ in Eq was not in error in failing to hold that Halpin v Sydney City Council was incorrect. The notice of contention and notice of cross-appeal so far as directed to Halpin v Sydney City Council have no substance.
34 The principle that parties are usually bound by the course they adopted at trial is well established, see University of Wollongong v Metwally [1984] HCA 74; (1984) 158 CLR 447 at 483; Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 645-6; Chilcotin v Cenelage Pty Ltd [1999] NSWCA 11 at [15]- [18]. The present matter, however, goes beyond this principle. Cameron does not seek to uphold the result in the proceedings by putting its case in a different way. It seeks to retain the result in the proceedings and as well have, on appeal, relief it did not claim below and which is contrary to the basis on which it claimed the relief it seeks to retain. Cameron could not have appealed to have a determination that Halpin v Sydney City Council was not correct, and it can not be in any better position as respondent to an appeal or cross-appellant.
35 In my opinion, therefore, Cameron should not be permitted to raise whether Halpin v Sydney City Council was correctly decided. So far as it propounded the notice of cross-appeal Cameron needs leave to cross-appeal, and leave in that respect should be refused. I do not intend in this to endorse the correctness of Halpin v Sydney City Council.
The decision that the owners corporation was obliged to give its consent
36 It is convenient first to refer to Kirkjian v Towers. The plaintiffs had a right of way over the defendants' land. An issue was whether construction of a driveway would be an excessive user of the right of way. It was held that it would not. The defendants refused to consent to the plaintiffs making a development application to permit construction of the driveway. It was held that the defendants could be ordered to give their consent, the reasoning being -
"It is said that by refusing their consent without any lawful reason the defendants are, in fact, obstructing the rights of the plaintiffs to use the right-of-way. This seems to me to be correct. The defendants being the proprietors of their land subject to the plaintiffs' right-of-way, cannot in law, be entitled to refuse to permit the plaintiffs either directly or indirectly to exercise their right to adapt the right-of-way for the purpose for which it was originally granted."
37 Young CJ in Eq found support by analogy in this case. With respect, I do not think it supports his Honour's decision. The order that the defendants consent to the making of the plaintiffs' development application was by way of enforcement of the plaintiffs' rights over the defendants' land, in effect restraining the defendants from denying the plaintiffs their rights. In the present case Cameron has no equivalent or analogous rights as against the owners corporation, and whether it otherwise has a right to obtain consent to making its development application is what is in issue.
38 As Young CJ in Eq noted, Kirkjian v Towers was referred to by Cripps J in Hoggett v Willoughby Municipal Council [1988] NSWLEC 93, by Bignold J in Gamkrelidge Partners v Randwick Municipal Council [1998] NSWLEC 100 and by Cohen J in Patrial Holdings Pty Ltd v Short (14 July 1994, unreported in full); see also Annwrack Pty Ltd v Williams (Waddell CJ in Eq, 8 February 1989, unreported). None of these cases takes the matter any further.
39 In 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 Hodgson CJ in Eq made an order pursuant to s 88K of the Conveyancing Act 1919 imposing an easement for the passage of the plaintiff's crane over the defendant's land. His Honour included in the order a term that the defendant consent to the making of an application to the council for consent to relevant use of the defendant's land, saying that the right to have the consent was an ancillary right reasonably necessary for the exercise or enjoyment of the easement and would be implied but should appropriately be made express. His Honour observed (at 522) that "the obligation on the defendant to give written consent can only be imposed as part of the easement, not by any order of the Court which is independent of the easement".
40 In Mulyan Pty Ltd v Cowra Shire Council (1999) 105 LGRA 26 Bryant claimed to hold a licence from Mulyan to take materials from Mulyan's land. It lodged a development application for an extractive industry on the land, accompanied by a letter from Mulyan which it asserted, and Mulyan denied, was a consent to the making of the development application. Lloyd J held that the letter was not a consent, and (with reference to Kirkjian v Towers and 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123) that Bryant had not established that it had any proprietary or other interest in the land, and so that there was no basis for an order that Mulyan give its consent to the making of the development application.
41 These cases underline that Kirkjian v Towers turned on the existing right of way.
42 By s 78A(1) of the EPA Act and cl 49(1) of the EPA Regulation the owner of the land to which a development application relates is given control over the making of the development application. The owner must either make the application or give written consent to the making of the application. A third party proposing a development application for the owner's land generally can not insist that the owner make or consent to the making of the application (see Mulyan Pty Ltd v Cowra Shire Council ). If the third party has rights in relation to the owner's land, as in Kirkijian v Towers, or no doubt if the third party has an appropriate enforceable contractual right against the owner, the third party can insist that the owner give consent, possibly that the owner make the development application. But a basis for an obligation to make or consent to the making of the development application must be established.
43 If, as must be taken to be so for present purposes, the owners corporation is by the imported definition the owner which must make or consent to the making of a development application in respect of a lot in a strata scheme, whence comes an obligation to make or consent to the making of a development application?
44 It does not come from the planning legislation. It is true that Cameron as registered proprietor of Lot 1 is not any third party. It is in ordinary parlance the owner of the lot of which, by the imposed definition, the owners corporation is for present purposes in law the owner. What matters, however, is the stipulation of ownership in law. Nothing in the EPA Act or the EPA Regulation warrants a gloss upon the legislative direction that a development application is to be made by or with the written consent of the owners corporation. The relevant provisions say nothing about an obligation on the owners corporation to make or consent to the making of the development application, and they can not carry within themselves an effective inconsistent ability of the registered proprietor of the lot to make a development application.
45 Cameron holds a fee simple in Lot 1, in short the fullest rights of ownership. But rights of ownership are commonly constrained by legislation, and for present purposes the legislation has constrained Cameron's rights by giving control over the making of a development application in relation to its lot to the owners corporation. That Cameron holds the fee simple does not of itself mean that the owners corporation is obliged to so act (by making or consenting to the making of a development application) as to enable Cameron to use its lot to the fullest extent. Nor is this a case in which principles of derogation from a grant of rights can be invoked, since the owners corporation did not grant any rights to Cameron for the enjoyment of which it must make or consent to the making of a development application.
46 If an obligation to make or consent to the making of a development application is to be found, it must be in the strata scheme legislation. An owners corporation holds the common property of the strata scheme and can not be regarded as disinterested in development of the lots of the lot-holders. By s 12 of the Strata Schemes Management Act 1996 an owners corporation has the functions conferred or imposed on it by or under that or any other act. The powers conferred under the Act include making (s 47) and enforcing (s 45) by laws and controlling, managing and administering the common property of the strata scheme for the benefit of the owners (s 61(1)), specifically maintaining and repairing the common property of the strata scheme, managing the finances of the strata scheme, taking out insurance for the strata scheme and keeping accounts and records for the strata scheme (s 61(2)). Miscellaneous functions are specified (ss 110-115). Nothing in these provisions suggests an obligation to consent to the making of a development application in relation to a lot in the strata scheme unless it is unlawful, the obligation held to exist by Young CJ in Eq. On the contrary, any decision by the owners corporation as to making or consenting to the making of a development application would properly be informed by regard to the effect of the development on the proprietors of the other lots and the building as a whole.
47 Respectfully differing from Young CJ in Eq, I do not think that his Honour was correct in holding that the owners corporation was obliged to consent to the making of Cameron's development application unless it was unlawful. I have earlier adverted to the damages claimed. I consider that leave to appeal is warranted in order that the present basis for prosecuting the claim to damages be removed.
The notice of contention
48 Apart from the correctness of Halpin v Sydney City Council, by the notice of contention Cameron sought to uphold the order made by Young CJ in Eq on the basis that the conduct of the owners corporation and the owners of the other lots had been oppressive to it and "constitutes a fraud on the minority under the Strata Plan", and that the order was "an appropriate mandatory injunction which will operate to prevent the continuance of such oppressive conduct and conduct fraudulent on the minority".
49 As I have noted, Young CJ in Eq made no mention of oppression or fraud on the minority. There were no material findings. Cameron's fall-back position before his Honour on the obligation to give consent was that there was an obligation to consent to the making of the development application unless it was unreasonable (as distinct from unlawful). Findings as to the effect of enclosure of the western end of Lot 1 on appearance, access and values, and the reasonableness of the stance of the owners corporation and the registered proprietors of the other lots, would be particularly material to oppression and fraud on the minority, since within limits the registered proprietors may vote for their own benefit (see Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46 at 52-3) Cameron properly accepted that this Court could not make findings in that respect.
50 The submissions in this Court gave but brief attention to oppression and fraud on the minority. Cameron's submission was no more than that any power to give or withhold consent would be oppressive and a fraud on the minority if "exercised in this manner and in these circumstances". I doubt that, in the manner the hearing before Young CJ in Eq was conducted, such serious conclusions as findings of oppression and fraud on the minority could properly have been reached; in any event, in order to have reached or reach them there would have to be consideration of, amongst other things, the effect of enclosure of the western end of Lot 1 on appearance, access and values and the reasonableness of the stance of the owners corporation and the registered proprietors of the other lots. Where this Court can not enter upon the necessary areas of fact, I do not think the notice of contention in this respect can avail Cameron; nor would I be prepared to come to conclusions as to oppression and fraud on the minority without more complete attention in submissions to their legal availability and factual basis. Nor, it seems to me, would it necessarily follow from a conclusion of oppression or fraud on the minority that there should be an order that the owners corporation give its consent to the making of the development application; again I am not prepared so to decide without more complete attention in submissions.
The cross-appeal
51 There was no formal application for leave to cross-appeal. Apart from the correctness of Halpin v Sydney City Council, by the draft notice of cross-appeal it was said that Young CJ in Eq should have found the oppression and fraud on the minority "and granted declaratory relief ... consequent upon those findings", and should have "granted such injunctive or other relief in favour of the cross-appellant as was necessary to bring finality to the dispute between the parties".
52 There were a number of extravagances in the proceedings; this was perhaps the most remarkable. The application before Young CJ in Eq was expressly limited to an application for the order his Honour made, and it can not be said that his Honour should have made the declaration as to oppression and fraud on the minority. Nor can it be said that his Honour should have taken it upon himself to canvass all possible relief to finalise the dispute between the parties. In any event, as I have indicated there was little more than passing attention to oppression and fraud on the minority in submissions in this Court. Leave to cross-appeal should be wholly refused.
Orders
53 The proceedings have become regrettably fragmented. I do not think this Court should attempt to chart any future course in this protracted and at times heated dispute. That is something to be addressed in the Equity Division.
54 I propose the following orders:
(1) Grant leave to appeal and direct that the notice of appeal be filed within 7 days.
(2) Refuse leave to cross-appeal.
(3) Appeal upheld.
(4) Set aside the orders made by Young CJ in Eq on 7 August 2002 save for the order as to return of exhibits.
(5) Remit the proceedings to the Equity Division for further disposal.
(6) Respondent to pay the appellant's costs of the appeal and the defendants' costs of the application heard by Young CJ in Eq and have a certificate under the Suitors Fund Act if otherwise qualified.
55 HEYDON JA: This is an application for leave to appeal against orders of Young CJ in Eq made after delivering an ex tempore judgment on 7 August 2002.
Background
56 The plaintiff is the registered proprietor of lot 1 in Strata Plan 50411 constituted under the Strata Schemes (Freehold Development) Act 1973. The building subject to the strata plan is a multi storey commercial building. The strata plan divides it into 16 freehold strata lots. The first defendant is the body corporate. The second-fifth defendants hold the 15 lots other than lot 1. In this Court the plaintiff was the opponent and the first four defendants were the claimants, the fifth defendant having discontinued its application for leave.
57 On 15 October 1999 the plaintiff exchanged contracts for the sale of lot 1. The contract was conditional on the purchaser obtaining a development approval from North Sydney Council. The body corporate maintained that no development application could be lodged without its consent, and would not consent. After many disputes, the purchaser terminated the contract on or about 27 November 2000.
58 The plaintiff continued to try to sell or lease lot 1. On 29 October 2001 it lodged a development application with the Council for work said to be entirely within lot 1. The body corporate had not consented to that course, but the Council, when it acknowledged receipt on 1 November 2001, did not draw attention to the absence of consent or decline to proceed further on that ground.
59 On 29 November 2001 the solicitors for the body corporate wrote to the North Sydney Council about the plaintiff's application dated 29 October 2001 saying:
"Clause 49(1) of the Environmental Planning & Assessment Regulation 2000 provides that:
`A development application may be made:
(a) by the owner of the land to which the development application relates, or
(b) by any other person, with the consent in writing of the owner of that land.'
Structural alterations to the building are included in the works proposed in the DA. The Owners Corporation as owner of the building structure is therefore `an owner' within the meaning of that clause, and its consent is thereby required before the DA can lawfully be made.
No such consent has been requested or given and it is not therefore lawful for Council to approve the DA.
We presume the Council will therefore advise the applicant that the DNA must obtain our client's consent before the DA can be lodged.
Please confirm that this has been done."
There is no evidence that the Council did advise the plaintiff as requested.
60 In the early part of 2002 the plaintiff tried to get the body corporate to reconsider the matter, but the body corporate did not consent to the development application and maintained the position that its consent was required.
61 On 18 July 2002 the draft of a further development application was sent to the solicitors for the body corporate.
62 Proceedings were started in the Equity Division of this Court on 31 July 2002. The Amended Summons seeks a declaration that the conduct of the first-fifth defendants in relation to the plaintiff's use and enjoyment of lot 1 is oppressive to the plaintiff and constitutes fraud on the minority in equity. The Amended Summons also seeks orders for equitable compensation and for an inquiry into damages. Paragraph 2 also seeks the following relief:
"An order that the first defendant consent to the plaintiff lodging with North Sydney Council the development application enclosed in the letter dated 18 July 2002 from Gadens Lawyers to Cowley Hearne in relation to lot 1 in strata plan 50411 ... ."
63 The trial judge heard the application for the order in paragraph 2 as a matter of extreme urgency on the basis that a decision was called for by 5pm on the day on which the hearing commenced. The application was for interlocutory relief, but the trial judge made the order on a final basis. He also ordered the body corporate to provide a letter to the plaintiff's solicitors acknowledging consent, and within a reasonable time thereafter to provide a formal sealed consent. Those orders have been complied with.
64 On 23 August 2002 the claimants filed an Ordinary Summons for Leave to Appeal. The court ordered that the application for leave to appeal and the appeal be heard concurrently. It also ordered that the hearing be expedited. The hearing was fixed for 2 September 2002. In consequence of the pressure of business on the court that day and the complexity of the contentions advanced in this case, the argument could not conclude that day, and was completed in writing. In addition to the two sets of written arguments already filed by the claimants and the one set of written arguments already filed by the plaintiff before the oral hearing began, the plaintiff filed further arguments on 6 September and 18 September 2002, and the claimants filed one set of undated arguments and another set of arguments (without leave) on 24 September 2002.
The trial judge's reasoning
65 The trial judge said:
"The basal problem comes about as a result of an interpretation given to s 78A of the Environmental Planning and Assessment Act 1979 (the EPA Act) by Cowdroy J in Halpin v Sydney City Council (2000) 110 LGERA 464. Essentially his Honour decided that the meaning of the word `owner' in regulation 46(1)(b) made under the EPA Act, where a strata plan was involved, meant the owners corporation of that body corporate. That paragraph of the regulation provides that a development application may be made by any person, but only with the consent in writing of the owner, or by the owner itself.
If that decision is correct, then it follows that no lot holder of any strata plan can make any development application, and probably, though I have not looked into this, any building application, without the consent of the body corporate. If that is right, it opens up a Pandora's box of questions as to what, if any, is the obligation of the body corporate to give or to withhold consent. It is some of those questions that arise in this present case.
Both counsel for the plaintiff and the solicitor for the defendants informed me that they are proceeding on the basis that Cowdroy J's judgment was correct. There was a practical reason for taking this view, ie, that as a decision of a superior court, the North Sydney Council, the appropriate local authority, would assume that the judgment was correct and would accordingly reject any development application not made by or consented to by the owners corporation. The fact that there could be an appeal to take the question of law in Halpin's case to the Court of Appeal is of no comfort. The process might take some years to exhaust and is thus not commercially acceptable.
This again puts the Court into an awkward position. With great respect to his Honour, I have serious doubts as to whether his decision could be correct, and with great respect to him, I believe it gives too little significance to the opening words of s 4 of the EPA Act, ie, that the definitions are to apply except insofar as the context or subject-matter otherwise indicates or requires. The effect of his Honour's decision is that a person who for all intents and purposes has a fee simple in land is hogtied in the way in which he or she can use that land in a way that comes close to denying the property itself.
However, having said that, I probably need to deal with the case on the basis that Halpin's case, being a decision of a superior court, is correct."
66 The trial judge then decided that he should make the orders he made because the body corporate's refusal to consent derogated from the fee simple in lot 1 owned by the plaintiff.
Is leave needed?
67 The body corporate contended that leave was not needed on the ground that the appeal involved "a claim, demand or question ... respecting property ... of the value of $100,000 or more" within the meaning of the Supreme Court Act 1970 s 101(2)(r)(ii). This was said to be so on the ground that the plaintiff valued its lot at $850,000, while the insurable value of the building was $21.8 million. This argument is invalid. While the building as a whole may be worth more than $100,000, and while lot 1 may be worth more than $100,000, it has not been shown that the claim, demand or question about that property is of the value of $100,000 or more. The only relevant evidence is that the difference in the value of lot 1 with and without the development application is $75,000. No Part 51 rule 8 affidavit has been filed by the claimants.
68 Even if that problem did not exist, leave would still be needed because though the trial judge granted a final injunction, his decision was interlocutory. He has not decided the allegation of oppression and the related claims for monetary compensation, and thus has not finally disposed of the controversy between the parties: Computer Edge Pty Ltd v Apple Computer Inc [1984] HCA 47; (1984) 54 ALR 767. Hence leave is needed because of s 101(2)(e) of the Supreme Court Act.
69 The claimants unquestionably need leave to appeal, and it is surprising that that proposition was ever disputed.
Whether Halpin's case can be considered: factual background
70 The question of whether Halpin v Sydney City Council (2000) 110 LGERA 464 is correct is anterior to the issues decided by the trial judge. In this Court the plaintiff submitted that it was not correct. The body corporate opposed the hearing by this Court of any argument that Halpin's case was wrong, and of a Notice of Contention and a Notice of Cross-Appeal directed to that argument. In the circumstances the sensible course is to consider whether Halpin's case is correct, subject to considering the merits of the objections to that course advanced by the body corporate.
71 The factual background is as follows.
72 The proceedings were filed on 31 July 2002. On 2 August 2002 Bryson J made consent orders listing the matter for hearing on 7 August 2002.
73 The parties have filed affidavits indicating that they agree on the following course of events on 7 August 2002. At the start of the hearing on 7 August 2002 the following exchange took place. The trial judge said:
"The way I see the arguments of the parties the questions that arise are: one, was [Cowdroy J] right? two, if he is, is there any fiduciary obligation on an owners corporation to an owner of a lot to give consent? and three, has this duty been breached?"
Counsel for the plaintiff said:
"It is common ground between the parties, your Honour, that the law in Halpin is correct."
74 The trial judge said:
"I have my doubts, but if the parties agree on that point and I see why they may as it is a decision of a superior court, then that is how we must proceed."
The trial judge then said:
"And what is the Defendant's position?"
The solicitor appearing for the defendants said:
"We agree that Halpin is correct."
75 At the end of the evidence and during the oral argument, the trial judge said:
"I have serious doubts that [Cowdroy J] is correct. If so, your client can lodge its application at council without consent.
I understand why you are here. If you were to take a different approach your client would lodge the application with council who would reject it.
You would take the council to the Land & Environment Court.
Then you would go to the Court of Appeal who would refer it back to the Land & Environment Court who would refer it back to council.
Then you would have the objection period and you would get your approval in about 2027."
Whether Halpin's case can be considered: the claimants' arguments in chief
76 The claimants submitted that the Halpin issue should not be agitated for the following reasons:
"(a) The opponent made no submission that the law in Halpin's case was wrong in the court below, but to the contrary, unreservedly made the contrary submission.
(b) The proceedings below were argued and determined on the basis that the law in Halpin was correct.
(c) The court below and the claimants were asked to answer the opponent's claim as a matter of urgency on the basis of the unreserved submission that the [body corporate's] consent was required.
(d) Further relief was claimed by the opponent in the amended summons for substantial damages on the basis that the consent was required, but was withheld.
(e) No claim for relief is made in the amended summons to the effect that the DA could be made without the [body corporate's] consent.
(f) The relief obtained and acted upon by the opponent was claimed on the basis of the unreserved submission that the [body corporate's] consent was required.
(g) The council which is bound to accept the DA if the opponent is successful in reversing the law in Halpin was not joined as a party.
(h) Any claim that the Council was bound to deal with the DA on the basis that Halpin was wrongly decided:
(i) would in all [probability require] joinder of the [council]
(ii) would bring the proceedings within the exclusive jurisdiction of the Land & Environment Court (see Land & Environment Court Act 1979 Section 20(1)(e); Section 20(2)(c) and Section 71(1))."
77 The claimants then pointed out that in particulars served on 1 August 2002 the plaintiff had said that the consent of the body corporate was needed before the Council could consider the development application, and also pointed to the fact that the trial judge had recorded that the representatives of the parties had informed him that they were proceeding on the basis that Halpin's case was correct.
78 The claimants then submitted:
"Even if [Halpin's case] is wrong and the first claimant's consent was not required for the making of the DA solely because it was the owners corporation of the strata plan for the land concerned, its consent as owner may arguably be required for the additional reason that the DA may relate to common property in the ordinary sense, in that:
(iii) `there may be some penetration of the common property by screws and other fastenings. Until more detailed plans come into existence, the degree of this possibility occurring cannot be assessed' (Judgment para 27);
(iv) the DA proposal includes significant alterations to planter boxes on common property (Transcript at p 12 - p 720 White folders);
(v) there may be other aspects of the development application such as air conditioning that will require works to common property which have not been addressed in evidence; and
(vi) by altering entrance arrangements to the lot the DA may change the use of common property;
(vii) the DA proposes `removal of masonry walls' (see proposed DA plan at Tab 17 to the White Folders).
The claimants are prejudiced by the late challenge to the law in Halpin because they are prevented now from adducing evidence on this issue. It would for that reason be unfair to allow the new point to be raised. Chilcotin Pty Ltd v Cenelage Pty Ltd [1999] NSWCA 11 (unreported); Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 7-8; Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 at 497."
79 The claimants also submitted that the change of stance by the plaintiff had prejudiced it.
"It was in reliance [on] the statement of the opponent's case in the Particulars and Outline of Submissions below that the claimants:
(i) agreed to the consent orders made by Bryson J below on 2 August 2002 by which the proceedings were listed for hearing 5 days later with the Plaintiff allowed only 1 business day for the preparation of evidence;
(ii) agreed to the urgent hearing on 7 August 2002 proceedings;
(iii) prepared evidence;
(iv) cross examined witnesses;
(v) prepared written submissions and argued the case at hearing; and
(vi) elected not to brief counsel.
The claimants would have conducted the hearing in the Court below differently if it had been aware that the law in Halpin would be challenged."
80 The claimants then submitted:
"For that reason it would be unfair if the opponent were to be allowed to reverse its previously stated position on appeal. Browne v Dunn (1894) 6 R 67 at 75-76, University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481 at 483, Multicon Engineering Pty Ltd v Federal Airports Corporation NSW (1997) 47 NSWLR 631."
81 The claimants then turned their attention to the following statement in the plaintiff's first written submissions to this Court:
"where the Council was obliged to give effect to the judgment of Cowdroy J in Halpin v Sydney City Council (2000) 110 LGERA 464, the Opponent was left with little commercial alternative but to commence proceedings against the Claimants, on the assumption that the decision in Halpin's case was correct ...."
The claimants submitted that the plaintiff:
"does not therefore seek the court's leave claiming that it made a mistake, but rather admits that it has reserved a point for appeal which it was aware of at first instance but did not press for `commercial' reasons. Such tactics should not be encouraged by the Court as being inconsistent with the public interest of finality in court proceedings."
The claimants then referred to Isaacs J's statement in Rowe v Australian United Steam Navigation Co Ltd [1909] HCA 25; (1909) 9 CLR 1 at 24:
"it is a sound general principle, leading not only to the maintenance of fair play, but also to the repression of unnecessary litigation, that parties must be bound by the course they deliberately adopted at the trial."
The claimants also referred to Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 7.
Whether Halpin's case can be considered: the plaintiff's arguments in response
82 The plaintiff responded in the following way. It said that whether Halpin's case was correct was a pure question of law not depending on the finding of additional or different facts. Hence the point could be taken on appeal: Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418 at 438. The plaintiff argued that there had been an acute need for an urgent hearing and decision. This was occasioned by the need to comply with a condition in a put and call option entered into by the plaintiff with proposed purchasers of lot 1 for $950,000. The condition required lodgement of a development application with the Council by 7 August 2002. If that condition was not complied with, either party could terminate the put and call option deed. This urgency made it sensible for the parties to present argument to the trial judge on the assumption that Halpin's case was correct. Even if the plaintiff had attempted to persuade the trial judge that the case was incorrect, and had succeeded in the attempt, that would not necessarily have induced the Council to have accepted the later decision as correct over the earlier, and there was no time to carry out the process of having the matter settled either by appealing to this Court or instituting proceedings in the Land and Environment Court and then appealing from that Court to this Court. The plaintiff accepted that the more orthodox course would have been to advance a final submission that Halpin's case was wrong and flag an intention to debate its correctness on appeal, and that it had not done these things. But the plaintiff submitted in substance that it had been sensible for it to concede the Halpin point against itself, and any procedural error of the kind indicated should not count against it. The plaintiff further submitted that the correction of Halpin's case was an important matter of public interest, since the case had reversed more than two decades of established law under the strata titles legislation by a side wind, and it should be allowed to agitate the question for that reason too.
83 The plaintiff said it did not apply to join the Council. It had no dispute with the Council, since the Council had received the development application (coupled with the court-ordered consent of the body corporate), and was considering the development application on its merits. If the Court of Appeal made a declaration reflecting the view that Halpin's case was wrong, there was no reason to believe that the Council would not respect it or that it would not continue to process the development application.
84 As to the claimants' contention that the development application related to areas of common property, the plaintiff submitted as follows. First, no finding had been made by the trial judge supporting it. All the trial judge said was:
"The proposed development is said by the plaintiff to be solely within its own lot. This is true except for the possibility that there may be some penetration of the common property screws and other fastenings. Until more detailed plans come into existence, the degree of this possibility occurring cannot be assessed. The plan (Exhibit DX06) shows that the frontage to Walker Street is common property. One goes up a series of steps. There is a substantial planter to the right and to the left and then there are nine concrete columns, all of which are part of the common property. Immediately behind the northernmost of these columns is not 1 owned by the plaintiff. At present there is a substantial area of open space at the entrance to lot 1 before one gets to the existing entry doors into the plaintiff's unit."
The plaintiff submitted that a "possibility" was not a fact. (In this regard, the claimants submitted that that passage in the trial judge's reasons for judgment was not a finding of fact but a record of the plaintiff's argument.) The plaintiff further submitted that there was evidence before the trial judge from Mr Scurr that the work proposed was entirely within the boundaries of lot 1. Not only did Mr Scurr give evidence to that effect, but Mr Taylor did as well. Finally, the plaintiff submitted that changes in relation to planter boxes and entrance arrangements were no part of the development application; they were part of a settlement offer dated 18 July 2002 and were only to be undertaken if the body corporate desired it; and while Mr Taylor was cross-examined about it, the fact remains that it was never part of the development application itself. These arguments were advanced in the "Opponent's Submissions in Reply" dated 18 September 2002. In response, in their submissions dated 24 September 2002, the claimants said: "Whilst no direction was made for a reply to that document, the submissions raise new matters including submissions as to facts which are in error, and require correction on behalf of the claimants." The letter dealt with three matters. None of the three matters concerned the factual issues about whether the works contemplated by the development application fell within areas of common property.
85 The plaintiff conceded that the effect of ss 20(1)(e), 20(2)(c) and 71(1) of the Land and Environment Court Act might well be that if the Council had wrongly refused to receive the development application, then the plaintiff would have had to have gone to the Land and Environment Court for appropriate relief. But the Council had now received the development application. The relief which the plaintiff sought against the body corporate was to the effect that the body corporate had no right to prevent the plaintiff from lodging the development application, and the Land and Environment Court Act did not deprive the Supreme Court of jurisdiction to determine that question.
Whether Halpin's case can be considered: the claimants' reply
86 The claimants responded to the plaintiff's contention that there was no need to join the Council because the Council had now accepted the development application with the written consent of the body corporate as follows. They drew attention to two parts of the affidavit evidence of Mr Scurr, a director of the plaintiff, to the effect that "Council" had advised him that a development application could not be lodged, or alternatively approved, until the body corporate's consent had been obtained. They also drew attention to a statement in the printed development application form to the effect that the body corporate's consent was needed. They said that the body corporate's consent had been provided "only" to comply with the orders of the trial judge which were challenged in the application for leave to appeal, and on the basis of an undertaking by the plaintiff to the Court of Appeal to withdraw the development application if the orders of the trial judge were set aside - an undertaking proffered in lieu of a stay of those orders which the body corporate had been seeking. The body corporate said: "On the basis of those facts it is extraordinary that the opponents submit ... that the fact that the DA has now been lodged should be in any way determinative of any matter now before the Court".
Should this Court permit argument on the correctness of Halpin's case?
87 The insistence on the part of the claimants that this Court cannot determine the correctness of Halpin's case and that if that is to be done the plaintiff must institute proceedings in the Land and Environment Court to which the Council is party would seem to be motivated by something other than a pure concern for procedural rectitude. The legal merits of that insistence must be examined in detail nonetheless.
The necessity of Land and Environment Court proceedings
88 The claimants contended and the plaintiff agreed that if the plaintiff had wished to challenge the Council's refusal to receive the development application without the body corporate's consent, it would have been necessary to have instituted proceedings in the Land and Environment Court against the Council. Is this so? The relevant sections of the Land and Environment Court Act 1979 are as follows. Section 20(1)(e) provides:
"The Court has jurisdiction ... to hear and dispose of: ...
(e) proceedings referred to in subsection (2)."
Section 20(2)(a) and (c) provides:
"The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of proceedings:
(a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law or a development contract, ...
(c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function ... ."
Section 71 provides:
"(1) Subject to section 58, proceedings of the kind referred to in section 20 (1) (e) may not be commenced or entertained in the Supreme Court."
Section 58 is irrelevant. Section 20(3)(a) defines "a planning or environmental law" as including the Environmental Planning and Assessment Act 1979 and s 20(3)(b) provides that the expression includes any statutory instrument made thereunder. The duty of the Council to consider the development application created by the Act and the Regulations is an obligation or duty conferred by a planning or environmental law. Hence the parties are correct in agreeing that proceedings for a declaration that the Council was obliged to accept the development application whether or not the body corporate consented, or for an order of mandamus that it accept the development application, are proceedings over which the Land and Environment Court has exclusive jurisdiction. The same is true of proceedings for a declaration as to the duties of the Council in relation to the development application after that time.
Is litigation against the Council necessary before Halpin's case can be considered?
89 If it is the case that the body corporate urged the Council to refuse to receive the development application without the consent of the body corporate, and if it is the case that the Council refused to receive the development application without that consent, a challenge by the plaintiff to the conduct of the Council would require the institution of proceedings against it as a defendant in the Land and Environment Court. But what the plaintiff challenged was not the Council's stance, but the refusal of the body corporate to give its consent. If the plaintiff is permitted to challenge the correctness of Halpin's case in this Court, and if as a result of that challenge it turns out that it was not necessary for the consent of the body corporate to be given, a future issue might arise with the Council. The Council might contend that a holding in favour of the plaintiff on that point does not mean that the development application which it has accepted is one which it is obliged to consider in the ordinary way. Is there any evidence that it has adopted or will adopt that stance?
90 The claimants pointed to three pieces of evidence. The first was that according to Mr Scurr's affidavit, in November 2001 an officer of the Council said to him in relation to the development application dated 29 October 2001: "Council cannot approve the development application until the consent of the Owners Corporation to the making of the application has been obtained." Secondly, after Mr Scurr had withdrawn the 29 October 2001 development application, he was told by an officer of the Council in a telephone conversation: "You will need the consent of the Owners Corporation before lodging any further development application in relation to 153 Walker Street." Thirdly, the standard printed development application form of the Council has in the margin beside the place where owners are to indicate their consent a statement to the following effect:
"If the property is a unit under strata title or a lot in a community title, in addition to the owners signature the common seal of the body corporate must be stamped on this form over the signature of the owner and signed by the chairman or secretary of the Body Corporate or the appointed managing agent."
91 So far as the two conversations with Council officers are concerned, the evidence does not reveal their identities, the extent of their authority, or the extent to which their minds were focussed on any particular issue. The body corporate contended in its letter of 29 November 2001 to the Council that no application could be made without its consent, but the basis for that contention was not the primary basis on which the issue was argued in this Court. That letter argued that the consent of the body corporate was required because there would be alterations to the common property. While, as has been seen, that position was not abandoned in this Court, the primary argument of the body corporate in this Court was that even if the development was to occur entirely within lot 1, the body corporate's prior consent was needed. The evidence does not make it clear whether or not the "November 2001" conversation referred to above post dated receipt of the 29 November 2001 letter: if it did, what the Council officer said may have been directed to a development outside lot 1. The same is true of the second conversation. In any event those two items do not suggest that, consent now having been received, the Council will not process the development application in the ordinary way.
92 So far as the standard form of development application is concerned, while it may well give an impression that the common seal of the body corporate is to be affixed as evidence of consent to the application, it does not actually say that. The doubt on the point is increased by the words opposite those on which the claimants rely:
"Without the owner's consent we will not accept the application. This is a very strict requirement for all applications. Please call us to find out who owns the land, according to our records."
There are no equivalent words in relation to the body corporate.
93 Indeed, there is other evidence that the Council, in formal correspondence, has revealed indifference as to whether the body corporate's common seal accompanies the development application and whether that is evidence of its consent. The Council received the plaintiff's development application of 29 October 2001 even though the body corporate's seal was missing, and in a formal and detailed letter of 1 November 2001 made no complaint about the absence of consent. There is evidence stemming from conversations with Council officers that some of them adopt a different position: not that the body corporate's consent is necessary before a development application can be lodged, but that it is necessary before it can be approved. An officer of the company which contracted to buy lot 1 on 15 October 1999 told Mr Scurr that she had been told by the Council that it required the body corporate's consent "before approving the development application". Mr Scurr had a similar conversation on the telephone with a Council officer on 23 April 2002 and soon thereafter withdrew the development application lodged on 29 October 2001. But there is no evidence that the Council has adopted that stance in correspondence directed to the plaintiff in a considered way after receiving a reasoned submission to the contrary from the plaintiff. It is not an issue that is raised in these proceedings. It cannot be assumed that Council will take that stand. If it does, the merits of the stand may have to be examined in proceedings in the Land and Environment Court. But the possibility of Council taking that stand on that issue does not debar this Court from considering the different issue of whether the consent of the body corporate is needed before a development application can even be lodged. Despite what the Council form says and despite what some Council officers may have said, on the one occasion when Council had an opportunity to advance that contention in reasoned correspondence, namely on 1 November 2001, it abstained from doing so.
94 Hence to debate the issue of whether Council is entitled to refuse to process the plaintiff's development application would be academic and hypothetical until the Council unequivocally adopts a stance adverse to the plaintiff. Hence it is not necessary, or even desirable, that litigation in the Land and Environment Court be instituted against the Council so that the validity of that stance can be debated. If this Court holds that no consent from the body corporate was needed for the development application to be accepted, the Council can, if it wishes, contend that that decision does not bind it; or it can contend that even if it was obliged to accept the development application without the body corporate's consent, it is not obliged to process it. If it adopts either of those stances, the validity of the stance adopted can be tested in litigation to which it is a party.
95 In short, litigation against the Council is not necessary for the determination of the correctness of Halpin's case. It would be necessary if there was some dispute in which the Council had been a protagonist which was to be resolved by a court order and which it was necessary to make binding on the Council. But there is no such dispute. If, in the period up to the application of the claimants to this Court for leave to appeal, the only bar to the Council receiving the development application was its insistence on the body corporate's consent, if the only basis for that insistence was Halpin's case, and if the plaintiff had contested that point with the Council, then it is true that proceedings against the Council would have been necessary. But these conditions are not satisfied. Until the claimants filed their Summons in this Court, the plaintiff was content to assume that Halpin's case was right and that the Council's consent was necessary; it wished only to contend that the Council was obliged to give its consent. On this contention it succeeded before the trial judge. The Council has received the body corporate's consent and is now no doubt dealing with the development application on its merits in an appropriate way. That consent, if needed, will remain valid unless the claimants succeeded in their challenge to the trial judge's reasoning; and even if the claimants succeeded in that challenge their success will be useless if it turns out that the consent was not lawfully required.
96 Another way of considering the present issue is to examine whether the Council should have been joined in these proceedings, on the assumption that the Supreme Court, including the Court of Appeal, had jurisdiction otherwise than on appeal from the Land and Environment Court to join the Council as a defendant. The test for joinder is that: "An order which directly affects a third person's rights against or liabilities to a party should not be made unless the person is also joined as a party": News Ltd v Australian Rugby Football League Ltd [1996] FCA 1256; (1996) 64 FCR 410 at 524. What order does the plaintiff seek? None of the orders in the Amended Summons considered by the trial judge affect the Council's (ie the "third person's") rights against or liabilities to the plaintiff; but of course none of those orders proceed on the assumption that Halpin's case is wrong. In a Notice of Cross Appeal which the plaintiff seeks leave to rely on, a declaration proceeding on the assumption that Halpin's case is wrong is sought in the following terms:
"a declaration that on the proper construction of section 78A of the Environmental Planning and Assessment Act 1979 and Regulation 49 of the Environmental Planning and Assessment Regulation 2000 and in the events which have happened, the appellants did not have any lawful right to prevent the respondent from lodging the Development Application which is Exhibit DS48 to the affidavit sworn 27 July 2002 of David Scurr or to prevent such DA properly being considered by North Sydney Council; rather the rights of the appellant were limited to rights to receive notification of the DA and to object to it being granted conferred by such Act and Regulation subsequent to the DA being lodged with and received by the Council;"
97 Though the words "or to prevent such DA properly being considered by North Sydney Council" rest on an assumption that the Council is supposed to give the development application some consideration, in terms they apply only to the conduct of the body corporate, not the conduct of the Council. The declaration sought does not affect either the rights of the Council against the plaintiff or the liabilities of the Council to the plaintiff. If the Council wishes to take a point in future that for some reason it is not obliged to deal with the development application in some respect, it is at liberty to do so. That remains true even if the point which the Council wishes to take is that it is not obliged to deal further with the development application. The Council could not, with any practical utility, take any point that it is not obliged to receive the development application, because it has received the development application. It could contend that it is not obliged to deal further with the development application. However, first, that issue is not an issue in the present proceedings. Secondly, even if it wishes to contend that it is not obliged to deal further with the development application because the development application should not have been lodged without the body corporate's consent, that posture is not contradicted by the law as declared in the declaration sought by the plaintiff. Thirdly, the Council has not so contended in any document, nor in any communication directed to the point in question.
98 The time for litigation brought by the plaintiff against the Council in relation to the rights of the former and the liabilities of the latter will only come when the Council denies either those alleged rights or those alleged liabilities. This it has not yet done, and may never do.
Does the development extend beyond the boundaries of Lot 1?
99 On the evidence, the issue of whether the work contemplated under the development application relates to areas of common property is to be resolved in favour of the plaintiff. So far as the claimants' argument depended on the penetration of screws and fastenings, air conditionings, and removal of masonry walls, the evidence of Mr Scurr and Mr Taylor is against it. The affidavit evidence of Mr Scurr and Mr Taylor was filed by the plaintiff. The claimants did not object to it on these issues. Mr Scurr was cross-examined on whether structural changes within lot 1 were going to be supported by screws and bolts going beyond lot 1, but made no concession that they would. So was Mr Taylor, with the same result. So far as the argument depended on alterations to planter boxes and entrance arrangements, the plaintiff is correct in submitting that these proposals formed part of an offer of settlement, not part of the development application, and that Mr Taylor made no concession in his cross-examination to the effect that the proposals were part of the development application. The claimants did not reply to the plaintiff's submissions along these lines.
Could the plaintiff's Halpin point possibly have been met by the calling of further evidence?
100 So far as the claimants contended that argument on the Halpin point was foreclosed on the ground that it could have been met by the calling of further evidence, it is necessary to distinguish two questions. First, could the Halpin point be defeated by calling further evidence on whether the development application related to common property or any other lot? Secondly, could it be defeated by calling further evidence about the development application even if it did not relate to common property or to any other lot? The parties appeared to regard the issues before them as permitting evidence on whether the development application related to common property. The plaintiff called evidence (to which the claimants did not object) that it did not. The claimants cross-examined with a view to showing that it did, but without success. These events point against the conclusion that a wholly fresh issue was raised. But even if the claimants might have wished to call further evidence on the point had the correctness of Halpin's case been in issue, it was not evidence which could have defeated the Halpin point. The Halpin point depends on assuming that the development application will not have effect outside lot 1, since if it does, the consent of the body corporate or of the relevant lot owner is necessary on that ground alone. If Halpin's case were correct, it would mean that even if the development application only had effect inside lot 1, the body corporate's consent would be needed. The claimants did not demonstrate how any evidence in relation to the effect of the development application, assuming it to operate only within lot 1, could have assisted them to defeat the plaintiff's contention that Halpin's case was wrong. The plaintiff was thus correct in submitting that the contention raised a pure point of law, in respect of which "evidence could [not] have been given which by any possibility could have prevented the point from succeeding": Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418 at 438; Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 7; Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 at 497. These cases, all relied on by the claimants, are in fact against them.
Should the plaintiff be held to the course adopted at trial for some other reason?
101 It is true that there is a qualification on the proposition that a new point of law can be taken on appeal even though there is no possibility of its being defeated by evidence. That qualification is that usually parties are bound by the course they adopted at trial (Browne v Dunn (1894) 6 R 67 at 75-76; Rowe v Australia United Steam Navigation Co [1909] HCA 25; (1909) 9 CLR 1 at 24; University of Wollongong v Metwally [1984] HCA 74; (1984) 158 CLR 447 at 483), but they may exceptionally be permitted to depart from it and raise a new point if the appellate court finds "it expedient and in the interests of justice to entertain the point" (Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 at 497; Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 645).
102 As Giles JA (Mason P and Priestley JA concurring) said in Chilcotin Pty Ltd v Cenelage Pty Ltd [1999] NSWCA 11 at [18]:
"the particular circumstances must be considered, with due recognition that mistakes occur, that second thoughts are sometimes good thoughts, and that the appellant is entitled to justice; but extending justice to an appellant who has failed to take a point at the trial may work an unacceptable injustice on the respondent."
Here the new point is being taken by a potential respondent rather than a potential appellant, but the reasoning is equally applicable. The claimants contended not only that there was additional evidence they could have called but also said that they relied on the statement of the plaintiff's case in the Particulars given on 1 August 2002 and the Outline of Submissions to the trial judge in agreeing to a very speedy hearing, and in preparing evidence, cross-examining witnesses, preparing written and oral argument, and electing not to brief counsel. The submissions did not say how the claimants would have conducted the case differently. They did not demonstrate how they were prejudiced by the attack on Halpin's case being presented now instead of at the trial. In view of their failure to point to any evidence they might have attempted to tender had they been aware of an attack on Halpin's case, the contentions about their reliance on the way the plaintiff stated its case would call for affidavit support if they were to be made good. Yet no relevant affidavit was read.
103 The procedural circumstances were unusual. The plaintiff came to the court very late. A plaintiff which tries to resolve controversies without troubling the court is in one sense to be encouraged, even though the consequence is that matters may be rushed when an application eventually has to be made. The claimants did not criticise the lateness of the plaintiff's application to the court. The plaintiff is correct in submitting that any attack on Halpin's case could only have been of a formal kind before the trial judge, because as a matter of comity the trial judge would have been likely to follow it; and even if he had not, there would be doubt as to the legal position until the resolution of any appeal from orders made as a result of the trial judge's refusal to follow Halpin's case. Since the claimants have failed to demonstrate that the plaintiff's attack on Halpin's case could by any possibility have been met by calling further evidence, or that they would have conducted the litigation any differently had the attack been made, the failure to raise the point is a purely technical failure without any practical consequence prejudicial to the claimants. To permit the plaintiff to take the point in this Court assists it to achieve justice without working any injustice on the claimants.
104 Indeed, there is an additional reason to allow this to happen. If Halpin's case is wrong, it is unnecessary to consider whether the trial judge was right in deciding that the body corporate can be compelled to give its consent. It is preferable that this Court devote its attention to legal issues which must be decided rather than to those which only arise on a particular hypothesis. There is compelling authority that the court will not generally decide points of law on the basis of facts assumed by the parties to be correct, but which may not be correct: see the cases discussed in Damberg v Damberg [2001] NSWCA 87; (2001) 52 NSWLR 492 at [148]- [160]. That principle points against deciding a particular point of law on an assumption, possibly erroneous, that another point of law stands in a particular state. To do so involves discussion of a question which is merely moot, theoretical, abstract, hypothetical or advisory, having no consequences for the parties and not quelling their particular controversy, but another, false, controversy: see Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 582; Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 at [45] and [47].
105 In these exceptional circumstances there is no bar to the plaintiff attacking Halpin's case in this Court.
Cowdroy J's reasoning in Halpin's case
106 Cowdroy J decided that a Council had rightly contended that where the owners of a lot in a strata plan sought consent to use the lot in a particular way pursuant to a development application, the development application did not comply with s 78A(1) of the Environmental Planning and Assessment Act and Regulation 46 of the Environmental Planning and Assessment Regulation 1994 (as amended by the Environmental Planning and Assessment Amendment Regulation 1998) because the body corporate was the "owner" and its consent had not been submitted with the development application.
107 Section 78A(1) provided:
"A person may, subject to the regulations, apply to a consent authority for consent to carry out development."
Clause 46 provided:
"(1) A development application may be made:
(a) by the owner of the land to which the development application relates, or
(b) by any other person, with the consent in writing of the owner of the land to which the development application relates."
(The relevant provision now is clause 49, which is in substantially the same terms.) "Owner" was defined in s 4 of the Environmental Planning and Assessment Act as follows:
"'Owner' has the same meaning as in the Local Government Act 1993 and includes, in Division 2A of Part 6, in relation to a building, the owner of the building or the owner of the land on which the building is erected."
108 "Owner" was defined in Sch 9 of the Local Government Act 1993 as follows:
"'Owner':
(b) in relation to land other than Crown land, includes:
(i) every person who jointly or severally, whether at law or in equity, is entitled to the land for any estate of freehold in possession; and
...
(iii) in the case of land that is the subject of a strata scheme under the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986, the owners corporation for that scheme constituted under the Strata Schemes Management Act 1996 ... ."
109 The court first discussed, at [6]-[7], three authorities:
"In Jeblon Pty Ltd v North Sydney Municipal Council (1982) 48 LGRA 113 Cripps J considered an application for development by the owner of a strata title lot in a building containing six strata style residential units. His Honour determined (at 119-120) that since the development application was not one involving any common property, the consent of the owner was not required pursuant to the provisions of s 77 of the EPA Act as it then existed. Such section required that development applications could only be made by the owner or with the consent in writing of the owner, `of the land to which that development application relates'. The words `owner' as it then appeared in s 77(1) of the EPA Act referred to all persons who qualified as `owner' as defined in s 4 of the Local Government Act 1919 (the 1919 LG Act). Such definition included a provision similar to subpar (b)(i) of the current definition but no equivalent provision to subpar (b)(iii) of the current definition relating to strata schemes existed.
The decision of Jeblon was adopted by Sheahan J in Bluewater District Services Pty Ltd v Sutherland Shire Council (1997) 97 LGERA 389 at 396. Although the 1993 LG Act which contains inter alia subpars (b)(iii) and (b)(iv) had then been enacted, the latter judgment contains no reference to the fact that the definition of `owner' had been altered to the current definition. In Crawley v Sydney City Council (1998) 98 LGERA 21 at 27, Talbot J found that the consent of the owner of the property was, `not a requirement made by or under the Act relating to the proposed building works'. This decision related to a building application and Talbot J adopted the approach of Cripps J in Jeblon."
110 Cowdroy J then continued (at [8]-[12]):
"The current definition of `owner' is substantially different when compared to the definition contained in the 1919 LG Act. Specific provisions now exist for the determination of an `owner' where land or an interest therein is held in a scheme, whether it be a strata scheme as provided in subpar (b)(iii) or community scheme as provided in subpar (b)(iv) of the current definition. Parliament by virtue of the 1993 LG Act has provided that the incorporated body is the `owner' in respect of land held under such schemes for the purposes of that Act.
During the Parliamentary debates concerning the interpretation preceding the enactment of the 1993 LG Act a document entitled `Exposure Draft Local Government Bill 1992' was released by the Minister for Local Government and Co-operatives and reference may be had to it pursuant to s 34(2)(e) of the Interpretation Act 1987 (NSW). The definition of `owner' contained therein was similar to that contained in s 4 of the 1919 LG Act and significantly did not contain the extensive changes which now exist in the current definition.
The applicant refers to the definition of `owner' in the Strata Schemes Management Act. In summary such definition relevantly refers to an `owner' of a lot in a freehold strata scheme as a person `being recorded in the Register as entitled to an estate in fee simple in that lot'. The applicant also has referred to the decision of the High Court of Australia in North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470 at 481[1996] HCA 20; ; 91 LGERA 352 at 360 in which the majority judgment refers to the fact that the EPA Act is not concerned with the regulation of the private rights of ownership but with the physical use to be made of land as defined in the Act. However neither the definition of `owner' as contained in the Strata Schemes Management Act nor the judgment of the High Court of Australia is pertinent. The question in issue is concerned solely with the definition of `owner' in respect of a development application being made under the provisions of the EPA Act.
It might be submitted that subpar (b)(i) of the current definition applies to the present applicant as owner of the lot in strata plan No 52778 for estate of freehold in possession. Such construction however would ignore the specific provisions of subpar (b)(iii) of the current definition. In Smith v The Queen [1994] HCA 60; (1994) 181 CLR 338 at 348 Mason CJ referred to the principle of construction which provides that in the event of a conflict between general and specific provisions of a statute the specific provision prevails.
Section 31 of the Interpretation Act requires an Act to be construed as operating to the full extent of, but not so as to exceed the legislative power of Parliament. Section 4 of the EPA Act declares that the term `owner' has the same meaning as that contained in the 1993 LG Act. The latter Act specifically provides that the owners corporation is the `owner' in respect of land which is the subject of the strata scheme. Since the land the subject of the development application is subject to such a scheme, the owners corporation is the `owner' for the purposes of the 1993 LG Act."
111 Cowdroy J concluded that under Regulation 46 the development application had to be made by the owners corporation or with the consent of the owners corporation.
The plaintiff's arguments to this Court on the correctness of Halpin's case
This appeal as a vehicle for reconsidering Halpin's case
112 The plaintiff submitted that the present case was an ideal vehicle for examining the correctness of Halpin's case. The trial judge found that the proposed development to which the plaintiff's development application related was solely within its own lot, lot 1 - it had no impact on any other lot or on the common property. (There was a possibility of penetration of the common property by screws and other fastenings, but that possibility, which could raise issues untouched by Halpin's case and could attract remedies under the Strata Schemes Management Act 1996 s 140(1), could be put aside until the time came, if it ever came, when the possibility became a reality.) The claimants' arguments against the development application - that the development would detract from the appearance of the building and increase the demand on the building, including in particular greater use of the foyer area for deliveries and the rear parking entrance for loading and unloading - were the types of argument which the Council could consider and accept when considering the development application under the provisions of the Environmental Planning and Assessment Act. The arguments of the claimants, if securely based in fact, suggested that notice would have to be given to the body corporate, as owning adjoining land, and to the body corporate and other lot owners, as persons who own or occupy land the use or enjoyment of which may be detrimentally affected if the development is carried out: Environmental Planning and Assessment Act 1979 s 79(1)(b)(i) and (ii). And the claimants did not contend that the development application was in breach of any by-law under the strata scheme. (That last submission was made during oral argument. Its making provoked the claimants into contending, in written arguments filed after the oral argument had concluded, that the development application was in breach of the relevant by-laws. Without going to the detail of this contention, it may be dealt with as follows. The contention was not advanced to the trial judge. This Court was not taken to evidence that the conduct contemplated by the development application would have fallen within the language of the by-laws. And even if it did, there would be no breach unless the body corporate refused consent, and it was open to the plaintiff to obtain relief under s 140 of the Strata Schemes Management Act 1996 if it did. Accordingly, for present purposes, no breach of the by-laws has been demonstrated as having occurred.)
113 Against that background, Halpin's case poses the following question. Did the body corporate, which unquestionably had power to advance arguments to the Council against consent to the development described in the development application in relation to any aspect of it that might have an effect on the common property, just as other lot owners had in relation to the effect on their lots, by virtue of the definition of "owner" found in the Local Government Act 1993 have a veto to prevent the plaintiff, as owner of lot 1, lodging a development application to carry out development on its lot?
114 Given that the interests of the body corporate and the other lot owners were protected by the need for notice under s 79(1)(b), by their capacity to advance submissions to the Council, by the Council's duty to consider those submissions, and by their capacity to appeal to the Land and Environment Court against grant of a development application with which they were unhappy, the plaintiff submitted that it was unlikely that the legislation would have granted a power to the body corporate to veto even the making of a development application.
The legislative history
115 The plaintiff submitted that examination of the legislative history showed that at least until 1995 consent from the body corporate to the lodging of a development application of the kind in this case was not needed; that to change that state of affairs would call for clear language; and that there was no such language.
116 In 1973 the Strata Titles Act created a system of divided ownership of land. It provided for land, including the whole of a building, to be subdivided into lots, or lots and common property, by the registration of a plan as a strata plan: s 7(2). On registration of a strata plan any common property vested in the body corporate: s 18. The estate or interest of a body corporate in common property was held by it as agent for the proprietors of all the lots: s 20. The body corporate had powers to execute a transfer or lease of common property: s 25. The body corporate was constituted by the proprietors of the lots and had control, management and administration of the common property: s 54 and s 68. Schedule 1 created by-laws, which could be amended by special resolution, and which bound the body corporate and the proprietors: s 58. Provision was made to control conduct of lot owners which was detrimental to other lot owners or to the common property: s 80. A lot proprietor could apply to the Commissioner for an order that the body corporate consent to a proposal by that proprietor to effect alterations to the common property or carry out repairs to it where that consent had been unreasonably withheld: s 106. The plaintiff submitted that the only control which the body corporate had over an owner who wished to build on a lot could be found in any relevant by-law: the body corporate had no general veto power.
117 In 1979 the Environmental Planning and Assessment Act was enacted. It created a system whereby development on certain land could only be carried out with the consent of an authority. The scheme was that consent had to be applied for; interested parties had to be notified; the application and objections had to be evaluated; the matter of consent or not had then to be determined. The legislation distinguished between land on which the development was to be carried out and other land which might be affected by it. The owners of the latter land had rights to be notified and to argue against consent to the application, but no right of veto over it. The plaintiff drew attention to passages in the reasons for judgment of Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ in North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470 at 475-476, 477 and 479-480. Though the legislative language has since been changed, as it stood in the period 1994-1995 with which that case was concerned, the joint reasons stress that a "development" of land could only be carried out on a particular parcel; and that the prohibition on development without consent was a prohibition on carrying out a specific development on a particular parcel. "When a development application is made for consent to a specified development, the land to which the application `relates' must therefore be the land on which the specified development is proposed to be carried out." Speaking of s 84, which was the provision then requiring notice to adjoining owners and other persons whose land might be detrimentally affected by a proposed development, and which corresponded with the present s 79(1)(b), the joint judgment said:
"The requirement of notice to adjoining owners and owners whose land may be detrimentally affected by a development suggests that that is the means by which such owners are given the opportunity to take a part in the consent authority's consideration of a development application. It is unlikely that the Act would require notice to be given to owners of the land mentioned in s 84 if those owners possessed a power to veto a development by refusing consent to the making of a development application."
The plaintiff stressed the significance of that passage for its argument, on the basis that the change in statutory language effected by the substitution of a new Part 4 in 1998 did not cause any relevant change in structure, and that the point remained valid for the Act in its present form.
118 Under that statutory scheme, the plaintiff submitted, since the work contemplated by the development application was to be carried out on lot 1, and the development application related to lot 1, the fact that the development application might have non-physical impacts on the enjoyment of the surrounding land did not expand the scope of the subject matter of the development application.
119 The person entitled to apply for consent to a development application was the owner or another person acting with the consent of the owner: s 77(1). Section 4(1) provided that the word "owner" had the meaning ascribed to it in the Local Government Act 1919. The definition in that Act did not refer to strata plans, but included:
"every person who jointly or severally, whether at law or in equity -
(a) is entitled to the land for any estate of freehold in possession ... ."
120 It was plain from 1979 on that the owner of a lot intending to carry out development within the lot did not require the consent of the body corporate. Cripps J so held in Jeblon Pty Ltd v North Sydney Municipal Council (1982) 48 LGRA 113 at 119-120. The interests of the body corporate were protected by its entitlement to receive notification of the proposed development and to make submissions about it.
121 In 1993 the Local Government Act 1919 was replaced by the Local Government Act 1993. In the Local Government Act 1993, "owner" was defined in paragraph (b) of the definition as including, in relation to land other than Crown land:
"(i) every person who jointly or severally, whether at law or in equity, is entitled to the land for any estate of freehold in possession; and ...
(iii) in the case of land that is the subject of a strata scheme under the Strata Titles Act 1973 or a leasehold strata scheme under the Strata Titles (Leasehold) Act 1986, the body corporate under that scheme; ...."
However, no change was made in the Environmental Planning and Assessment Act; in particular, the definition of "owner" as having the meaning ascribed to it in the Local Government Act 1919 did not change. It only changed in 1995, when the Statute Law Revision (Local Government) Act 1995 deleted the existing definition of "owner" in the Environmental Planning and Assessment Act and substituted: "'Owner' has the same meaning as it has in the Local Government Act 1993". Counsel for the plaintiff described this 1995 Act as a "cleaning up Act" designed to replace all references to the Local Government Act 1919 with references to the Local Government Act 1993, albeit that it was a cleaning up Act which was "a little slow".
122 The next change was effected by the Strata Schemes (Miscellaneous Amendments) Act 1996. It renamed the Strata Title Act 1973 as the "Strata Titles (Freehold Development) Act 1973". It made numerous consequential or legislative amendments. One of these was to paragraph (b)(iii) of the definition of "owner" in the Local Government Act 1993. The new definition was:
"(iii) in the case of land that is the subject of a strata scheme under the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986, the owners corporation for that scheme constituted under the Strata Schemes Management Act 1996 ... ."
123 In 1996 the Strata Schemes Management Act was also enacted. Its purpose was to make provision in a single Act for all the management rules of both freehold and leasehold strata schemes. The effect of s 10 was that on registration of a strata plan for a strata scheme, a set of by-laws applied to the strata scheme as provided by Part 5. Section 11 provided that the owners of the lots in a strata scheme constituted a body corporate. That body corporate or "owners corporation" had the functions conferred or imposed on it by or under the Act or any other Act: s 12. Section 43(1) provided that by-laws might be made in relation to various subjects, including "architectural and landscaping guidelines to be observed by lot owners". The by-laws have binding force as between the body corporate and the lot owners: s 44. By-laws may be amended by special resolution: s 47. A special resolution can only be passed by a majority comprising three quarters in value of the unit owners. Section 61(1) and (2) provided:
"(1) An owners corporation has the control, management and administration of the common property of the strata scheme for the benefit of the owners.
(2) The owners corporation has responsibility for the following:
(a) maintaining and repairing the common property of the strata scheme as provided by Part 2,
(b) managing the finances of the strata scheme as provided by Part 3,
(c) taking out insurance for the strata scheme as provided by Part 4,
(d) keeping accounts and records for the strata scheme as provided by Part 5."
The plaintiff noted that it was not said to be a function of the body corporate to control, manage or administer development by lot owners on their own lots.
124 Section 116(2) provides:
"The owner of a lot must not alter the structure of the lot without giving to the owners corporation, not later than 14 days before commencement of the alteration, a written notice describing the proposed alteration."
The plaintiff noted that this did not give the body corporate any veto: it merely entitled it to notice.
125 The plaintiff also drew attention to Chapter 5 of the Act which gives power to Adjudicators and the Strata Schemes Board to make orders settling disputes in relation to a strata scheme. It included s 140, enabling a lot owner to override the body corporate if it unreasonably refused its consent to alterations or repairs to common property directly affecting the owner's lot. The plaintiff noted that there was no provision suggesting that the body corporate had any veto - any capacity to refuse consent - in relation to work on an individual lot.
126 Hence, the plaintiff submitted, while by special resolution the body corporate could create a by-law controlling what a lot owner did on a particular lot, the Strata Scheme Management Act 1996, like the Strata Titles Act 1973 (renamed Strata Titles (Freehold Development) Act 1973), did not give the body corporate a veto over development on a particular lot.
127 The next stage arose in the Environmental Planning and Assessment (Amendment) Act 1997, which took effect on 1 July 1998. It repealed Part 4 of the 1997 Act and replaced it with the current Part 4. It replaced the former definition of "owner" with the following definition:
"'Owner' has the same meaning as in the Local Government Act 1993 and includes, in Division 2A of Part 6, in relation to a building, the owner of the building or the owner of the land on which the building is erected."
The effect of repealing Part 4 was to repeal the former s 77. The role played by the former s 77, from 1 July 1998, was played by clause 46 of the Environmental Planning and Assessment Amendment Regulation, which provided that a development application may be made "by the owner of the land to which the development application relates", or "by any other person, with the consent in writing of the owner of the land to which the development application relates". That in turn was replaced by clause 49 of the Environmental Planning and Assessment Regulation 2000, which is to the same effect and which remains in force.
128 Against that background, the plaintiff advanced arguments which may be grouped as follows.
When and how did the law change?
129 First, under the Strata Titles Act 1973, the body corporate's consent to an application for development affecting a single lot was not needed: Jeblon Pty Ltd v North Sydney Municipal Council (1982) 48 LGRA 113. If that position changed, by what legislation was it changed? The only possible candidate was that selected by Cowdroy J, namely the Statute Law Revision (Local Government Act) 1995, which adopted as the definition of "owner" for the Environmental Planning and Assessment Act 1979 that appearing in the Local Government Act 1993. The plaintiff submitted that the Statute Law Revision (Local Government Act) 1995 was designed only to make formal amendments to the Environmental Planning and Assessment Act 1979 and many other Acts by replacing cross-references to the Local Government Act 1919 with cross-references to the Local Government Act 1993.
"There was nothing to suggest that Parliament had a far wider intention [in the 1995 Act] to alter the existing rights of property and ownership between owners within a strata plan such as to give a 51% majority of owners an unfettered power of veto over development being attempted on another lot within the strata plan.
Had there been any such Parliamentary intention, one would have expected that there would have been appropriate amendments to the [Strata Titles (Freehold Development) Act]. Instead, what occurred was in the following year Parliament passed the Strata Schemes Management Act 1996 which consolidated the rules governing the management of both freehold and leasehold strata schemes. ... [That] Act preserved the role of the by-laws as the means by which a 75% majority within the scheme could regulate development confined wholly within a given lot in the scheme. It would be directly inconsistent with that Act if the majority in the general meeting of the owners corporation could restrict development confined to a single Lot in the scheme.
Further ... section 140 of the Strata Schemes Management Act 1996 is the only provision within the Act enabling the owner of a lot to seek an order from the Adjudicator requiring the owners corporation to consent to work proposed by that owner. That section is limited to the situation where the proposed work relates to the common property but directly affects the owner's lot. The implicit assumption of section 140 is that there is no need for there to be any right to approach the Adjudicator for an order where the work is wholly confined within an owner's lot.
The construction contended for by the claimant is not consistent with any of the objects of the EPA Act 1979 set out in section 5."
The meaning of "owner"
130 The second argument of the plaintiff was as follows. The plaintiff argued that it was the owner of lot 1, and hence, qua lot 1, fell within paragraph (b)(i) of the definition of "owner" in the Local Government Act 1993. It argued that the body corporate was, qua the common areas of the building, the "owner" as defined in paragraph (b)(iii). The plaintiff submitted that limb (iii) meant that where an application is made for the development of the whole of the land which is the subject of a strata scheme, including all lots and the common property, the body corporate is the owner, but that the definition did not operate where the application was for the development of a single lot within the strata scheme. If that were not so, and limb (iii) applied to an application relating to the development of a single unit, then the body corporate would be the appropriate applicant.
"The starting point for these submissions is that it is necessary carefully to identify the relevant land in question before ascertaining the owner. The land in question in the present case is Lot 1. It is that land upon which the opponent wishes to carry out the development and in respect to which the opponent requires a consent: EPA section 76A(1). The opponent has the right, subject to the regulations, to apply to the Council for consent to carry out the development on that land being Lot 1: section [78A(1)].
It is common ground that the opponent is the owner of Lot 1, when regard is had to the Torrens Title register ....
The scheme of the EPA Act is that the opponent is the owner, and the only owner of Lot 1, for the purposes of this Development Application. Once the application is lodged, the Council has a duty under section 79(1)(b) to give written notice of the application in accordance with the regulations to:
(i) the persons who own or occupy the adjoining land, and
(ii) to any other persons who own or occupy land the use or enjoyment of which may be detrimentally affected if the development is carried out.
The owners corporation, and the owners of every other lot within the development, fall squarely within the language of section 79(1)(b)(i). Accordingly they have a right to receive notice of the application; a right to make submissions under section 79(5); a right to have those submissions properly considered by the Council under section 79C(1)(d); a right to be notified of the Council's determination under section 81; and a right of appeal under section 98."
131 The plaintiff then drew attention to s 79(2) of the Environmental Planning and Assessment Act 1979:
"If land is:
(a) a lot within the meaning of the Strata Schemes (Freehold Development) Act 1973, a written notice to the owners corporation is taken to be a written notice under subsection (1)(b) to the owner or occupier of each lot within the strata scheme, or
(b) a lot within the meaning of the Strata Schemes (Leasehold Development) Act 1986, a written notice to the lessor under the leasehold strata scheme concerned and to the owners corporation is taken to be a written notice under subsection (1)(b) to the owner or occupier of each lot within the scheme."
132 The plaintiff continued:
"Section 79(2) is a section which facilitates or simplifies the process of giving notice. If a development is proposed for Lot 1 and that development may impact upon one or more of the other lots in the strata plan, or upon the common property, it is sufficient to give a single written notice to the owners corporation of the proposed development. That is deemed to be notice to each owner or occupier of the lot within the strata scheme. Although that section facilitates or simplifies the giving of notice, it does not create, and indeed points against, the owners corporation having a veto over the lodging of the application in the first place. It also confirms that it is appropriate to regard each lot within the strata scheme as being a separate parcel of land.
We may now come to the true purpose of paragraph (b)(iii) of the incorporated definition [of] `owner' in the Local Government Act 1993. If any issue arises under the EPA Act which concerns the whole of the land the subject of a strata scheme - the common property and all of the lots - it will be appropriate to regard the owners corporation as the owner. Two examples may be given. First, if there is a proposal to redevelop the entirety of the land the subject of a strata scheme, the appropriate owner to lodge the Development Application will be the owners corporation. As a second example, if a development is proposed on one parcel of land and neighbouring land which contains a strata scheme building might be `detrimentally affected' if the development was carried out, the owner of that affected land is taken to be the owners corporation: cf section 79(1)(b)(ii).
A regulation must be construed so as not to exceed the power conferred by the Act under which it is made: Interpretation Act NSW 1987 section 32. The power to make EPA Regulation 49 is found in section 105(1)(b) of the Act: the regulations may make provision for the persons who may make development applications. The statutory power does not evince any intent that the regulation would serve to create far reaching veto powers for adjoining owners under a strata scheme."
"Owner" in other parts of the legislation
133 The third argument advanced by the plaintiff depended on the use of the word "owner" in other places in the Environmental Planning and Assessment Act in a manner consistent with its construction. The plaintiff drew attention to s 118C, which it summarised thus:
"notice must be given to the owner or occupier of premises before they are entered for the purposes there specified, unless relevantly the owner or occupier has already given a consent to the entry;"
134 The plaintiff then turned to s 121B and submitted:
"Section 121B authorises the giving of orders to various persons, the persons in some cases being defined as the owner. See in particular Orders 1 and 16 which are situations where the relevant order, if it related to activities being carried out on a particular lot, would naturally be given to the owner of the lot rather than to the owners corporation.
Thus, under Order 16, on the [claimant's] argument, if a development application is granted in respect to development on a particular lot, but the owner of that lot is slow in completing the development, the order to complete within a specified time is to be given to the owners corporation, not to the individual owner. That seems extremely odd because sections 121H-121L create a process designed to give the intended recipient of the order natural justice before the order is made; section 124 empowers the Court to make orders remedying or restraining the breach of an order given under section 121B; section 121W permits one of several owners of the land to comply with any order and section 125 creates offences for failing to comply with such orders. If Halpin's case is correct, in the present situation assuming the owners corporation consents or is required to consent to the lodging of the DA, a failure by the opponent properly to carry out the development could give rise to the making of orders which the owners corporation is obliged to comply with under pain of Court order or prosecution for an [offence.]
[A] far more sensible interpretation would be that the owners corporation is the owner in circumstances where in truth and in fact it is doing or proposing to do the carrying out of the development. In that situation, appropriate orders can be made against it under section 121B and it can be appropriately enforced against it under sections 124 and 125."
Consent under the Local Government Act
135 The fourth argument turned on s 78A(3) of the Environmental Planning and Assessment Act.
"Under section 78A(3), a person may include in the development application an application for consent or approval under various provisions of section 68 of the Local Government Act. The Council may then act as the relevant consent authority under that other Act. This suggests that owner should have the same meaning for the purpose of who can lodge the application under the EPA and who can lodge the application under the LGA. In fact, section 78 of the Local Government Act 1993 is in similar terms to EPA Regulation 49:
`Section 78(2) LGA: if the application relates to particular land, the applicant must be the owner of the land or a person who has the consent of the owner'.
Section 78(2) LGA thus picks up the same definition of `owner' in that Act as is picked up in Regulation 49 EPA. The meaning is the same. If the activity is to be carried out solely on one lot in a strata plan, the relevant owner is the owner of that lot.
Put otherwise, the logical conclusion of the claimant's argument is that if an application is made under section 68 of the Local Government Act for approval to carry out any of the activities specified therein, the owners corporation must be the applicant even if the work is confined to a single lot. That result must be said to have come about because of the definition of `owner' as introduced by the Local Government Act in 1993 is wider than the earlier definition in the Local Government Act 1919. The logic of the argument must be that the 1993 Act intended to effect a radical change in local government law and strata titles law such that an activity which needed consent on an individual lot within a strata plan could be vetoed by the owners corporation. There is no basis for thinking that the 1993 Local Government Act was intended to effect such a radical change in the rights of property and ownership relating to strata plans. Reference may be made to the purposes of the Local Government Act set under section 7 which do not extend in this manner."
136 The plaintiff concluded by pointing out the inherent improbability of the 1995 amending Act creating a new right exercisable by a 51% majority in the owners corporation, irrespective of the by-laws and without any ready appeal mechanism, pursuant to which that majority could prevent a lot owner even commencing the process of having a proposed development on the land considered by the consent authority. The plaintiff pointed out that the express language of the Environmental Planning and Assessment Act appeared to limit the rights of adjoining owners (including the body corporate) to the right to be notified and the right to make submissions. It would not have been necessary to have those rights in this context if the body corporate could prevent the development application even being filed. The plaintiff relied on the joint judgment in North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470 at 480, the last passage from that case quoted above.
The claimants' arguments on the correctness of Halpin's case
137 The claimants answered these arguments as follows in written submissions.
138 They said:
"There is no reason for presuming otherwise than that this was intended to slant both control and responsibility for a development within a strata building towards the collegiate meeting of the unit holders, and away from individual owners. This is an entirely logical and reasonable statutory purpose.
In any event, the meaning of both Clause 49 of the EP&A Regulation 2000 and the definition of owner in the Local Government Act 1993 are clear, and do not need any reference to the legislative scheme to be understood, irrespective of when and how the definition was amended."
139 Then they said that the requirement for a lot owner to get the body corporate's consent for the filing of a development application was rational.
"The requirement for a prospective applicant to obtain the consent of the Owners Corporation, if the development proposed is within a building the subject of a strata scheme, is both a logical and reasonable statutory purpose. It has the effect of ensuring an owner of a lot resolves with the owners corporation whether it can carry out its development proposal before it commences the statutory planning processes of having its DA assessed by Council. This saves time and resources for the Council, the owners corporation and even the lot owner.
The requirement for owners corporation consent is accordingly consistent with the objective of the EP&A Act set out at Section 5(a)(ii) of the EP&A Act, namely the `promotion and co-ordination of the orderly and economic use and development of land'.
It is also consistent with the scheme of integrated development introduced by the 1997 amendments to the EP&A Act. Under Section 91A of the EP&A Act 1979, a Council must (since the 1997 amendments) obtain from the approval bodies under each of a prescribed list of environmental and planning Acts, the general terms of any approval required from those bodies. Under subsection (4) of Section 91A of the EP&A Act:
`if the [approval] body informs the consent authority it will not grant an approval that is required in order for the development to be carried out, the consent authority must refuse consent to the application'."
140 They said that the definition of "strata scheme" in the Strata Schemes (Freehold Development) Act 1973 showed that "a strata scheme ... inherently operates to regulate rights of an owner of a lot vis-à-vis the Owners Corporation".
141 They submitted:
"The policy objective of integrated development is to institute one development consent process in which all necessary approvals are obtained before development consent issues. The requirement to obtain the consent of an owners corporation before a DA is made for land the subject of its strata scheme is consistent with that policy objective."
142 They submitted, in relation to paragraph (b)(iii) of the definition of "owner":
"The opponent's `interpretation' of that definition by which an owners corporation is the owner only of `common property' under that definition is simply wrong. Indeed it is not an `interpretation' at all, but instead a statement of what the opponent submits the statute should say."
143 The claimants endeavoured to deal with the plaintiff's reliance on the right of objection to a development application as pointing against the right of veto before lodging a development application as follows:
"The statutory right of an owners corporation to be notified of, and to object to, a DA has a different function to the statutory requirement for the Owners Corporation's consent.
Firstly, it ensures that an owners corporation knows when a DA has been lodged. In the facts of the present case, for instance, an earlier DA for a restaurant in Lot 1 had been lodged and was being processed by the owners corporation, presumably with the opponent itself having signed the form as owner. Notification of the DA allowed the owners corporation to inform the Council that its consent as owner had not been obtained and the DA was rejected.
An owners corporation which approves a DA being made may still wish to make submissions as to appropriate conditions to be appended to any consent.
An owners corporation may consent to the making of a DA regarding which it is undecided to obtain the benefit of the expert council staff who will process the DA.
The assessment of a DA by a consent authority is limited to the considerations under Section 79C of the EP&A Act. That assessment is different to the consideration of an owners corporation when determining whether to consent to the making of a DA. For instance the development the subject of these proceedings may have satisfied the relevant planning standards and yet still have adversely [affected] the other owners of the building. Accordingly, the development now proposed by the Applicant may have been acceptable when the opponent owned the whole building and would have borne the adverse effects itself. However, since choosing to sell the above ground lots to the claimants, the new owners have obtained an interest in the future development of the building which it is reasonable for them to protect."
144 The claimants responded to the plaintiff's reliance on s 118C and s 121B of the Environmental Planning and Assessment Act thus:
"Section 118C EP&A Act ... relating to a Notice of Entry uses the expression `owner of premises' rather than `owner of land' and the LGA definition does not apply - the use of the words `premises' is presumably to avoid the problem identified by the opponent.
Section 121B Order 1 ... is similarly limited to `owner of premises', again presumably to avoid the problem referred to by the opponent if the order could be issued to an Owners Corporation.
Section 121B Order 16 ... does apply to an `owner of land' and would include an Owners Corporation. Order 16 may be issued to require completion of development the subject of a development consent. It may well be appropriate to issue such an order to an owners corporation to complete work within a particular lot if that work is relevant to the development as a whole."
145 Finally, the claimants submitted:
"The Opponent submits on the one hand that the `Strata Titles legislation' could not possibly empower an owners corporation to veto development proposed by a unit holder (as this would be an inconceivable infringement on fee simple rights), but on the other hand concedes that an owners corporation can restrict the development of a lot by adopting by-laws through special resolution (see Opponent's Continued Submissions at Paragraph 7).
The claimants agree that an owners corporation can restrict the development of a lot through by-laws, but says this is surely further evidence why the opponent's argument that a unit holder's interest is `unfettered' by the strata titles legislation (which underlies the opponent's whole case) must be wrong.
While the claimants in this case could by special resolution have passed a by-law preventing the development proposed in the subject DA, it is unreasonable and undesirable to require an owners corporation to pre-empt all possible undesirable development proposals that might be made by passing by-laws in advance to prohibit that development. The requirement for owners corporation's consent is a more ordered way of achieving the same end."
The plaintiff's answer on the correctness of Halpin's case
146 The plaintiff found it necessary to answer only two of these submissions. As to the last submission it said:
"reference is made to the central issue between the parties, that is, whether the Statute Law Revision (Local Government) Act 1995 for development applications, and the Local Government Act 1993 for building approvals, intended to effect a change whereby an ordinary resolution of the owners corporation can act as an absolute veto over development confined within an individual's lot. if it does, it is inconsistent with the requirement for a special resolution to amend the by-laws, and creates a situation where there is no power in the adjudicator, pursuant to the Strata Schemes Management Act, to order the owners corporation to give its consent, and would leave the owner of the lot with the inadequate protections conferred by the doctrines of fraud on a power, and fraud on a minority."
147 So far as the claimants' submission referred to integrated development, it pointed out that the development application was not an application for integrated development.
Was Halpin's case correct?
148 There is a preliminary point. The word "owner" in clause 49 of the Environmental Planning and Assessment Regulation has the same meaning as it has in s 4 of the Environmental Planning and Assessment Act 1979: Interpretation Act 1987, s 11. The definitions in s 4 of the 1979 Act, including the definition of "owner", operate "except in so far as the context or subject matter otherwise indicates or requires". The definitions referred to in s 3 of, and found in the Dictionary to, the Local Government Act 1993 are not subject to that exception. A question arises: is the relevant definition that found in s 4 of the 1979 Act, which is subject to the exception, or that found in the 1993 Act, which is not? Even though the definition in s 4 of the 1979 Act adopts the definition in the 1993 Act, the definition of "owner" actually appears in the 1979 Act; it merely adopts the 1993 Act definition by reference. That is, the possibility of a contrary context or subject matter being relevant applies to the present problem because it is the 1979 Act which defines "owner" even though it does so by reference to the definition of that word in the 1993 Act.
149 In Halpin's case Cowdroy J made no criticism of Jeblon Pty Ltd v North Sydney Municipal Council (1982) 48 LGRA 113. He criticised Blue Water District Services Pty Ltd v Sutherland Shire Council (1997) 97 LGERA 389 at 396 and Crawley v Sydney City Council (1998) 98 LGERA 21 at 27 on the ground that those cases failed to attach significance to the change in the definition of "owner" after 1995. However, that change cannot have been intended to have the radical effect which the claimants' submissions require. It would be an extreme step to hold that a lot owner can never develop the lot unless the body corporate consents to the lodging of the development application. It would be a radical derogation from the enjoyment of land in which the lot owner has a fee absolute in possession. The fact that the veto could be exercised by a bare majority of a meeting of the body corporate would not sit well with the need for special resolutions in relation to restrictive by-laws. Why should the legislation, which expressly stipulated one route to the control of individual lot owners by the majority but made it subject to the requirements of special resolution, be construed as stipulating for another route to that destination which can be travelled if only a bare majority can be found? While each of those outcomes is possible, it would be unlikely that legislation could bring them about without containing clear words to that effect.
150 Further, the capacity of the body corporate to object to the development which is the subject of that application after it has been lodged points against the existence of a statutory power to veto the lodging of the application: North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470 at 480. In that case the joint judgment was speaking of s 84(1)(a) of the Environmental Planning and Assessment Act as it then stood. The present equivalent to that provision is s 79(1)(b). There is no material difference between the provisions, and hence the following words of the joint judgment are precisely in point:
"The requirement of notice to adjoining owners and owners whose land may be detrimentally affected by a development suggests that that is the means by which such owners are given the opportunity to take a part in the consent authority's consideration of the development application. It is unlikely that the Act would require notice to be given to owners of the land mentioned in s 84 if those owners possessed a power to veto a development by refusing consent to the making of a development application."
The same applies to owners of lots operating through their voting powers within the body corporate.
151 There is nothing in the statutory language - the new definition of "owner" - to justify the conclusion that it effected changes of the magnitude, incongruity and disharmony which are entailed in the claimants' argument. Even if there were, it would be difficult to construe the language as leading to that conclusion in view of the fact that the new definition of "owner" was introduced into the Environmental Planning and Assessment Act as part of the Statute Law Revision (Local Government) Act 1995, which had the function of effectuating numerous formal amendments, particularly those necessitated by the substitution of the Local Government Act 1993 for the Local Government Act 1919. The structure of the Strata Schemes (Freehold Development) Act 1973 before the change to the definition of "owner" in 1995, which did not give the body corporate any relevant veto, has not altered materially after the enactment of the Strata Schemes Management Act 1996.
152 Further, if the body corporate had a right to veto applications by individual lot owners for development of their lots, there would be other incongruities.
(a) The Strata Titles Management Act 1973, s 140, by providing for the overriding of a body corporate's refusal to consent to work on the common areas, assumes it is necessary, but also assumes that no consent is necessary in relation to work on individual lots. It was understandable that there should be that qualified right in the body corporate to refuse to spend money which in practice might benefit one lot owner more than others. But it was also understandable that a lot owner who wished to spend his or her own money on his or her own lot should be at liberty to do so irrespective of whether or not the body corporate consented.
(b) While s 61 of the Strata Schemes Management Act 1996 expressly gave the body corporate numerous responsibilities in relation to the control, management and administration of the common property of the strata scheme, no section expressly gave it any responsibilities in relation to the control, management and administration of the individual property of lot owners in their respective lots.
(c) While s 116(2) of the Strata Schemes Management Act 1996 required the owner of a lot to give fourteen days written notice of any alteration in the structure of the lot (whether or not it involved development for which a development application and consent were needed), no provision in terms gave the body corporate the power to prevent any alteration.
(d) If a body corporate had a power to veto a development application made by the owner of an individual lot, there would be no need for s 79(2)(a) of the Environmental Planning and Assessment Act which provides:
"If land is:
(a) a lot within the meaning of the Strata Schemes (Freehold Development) Act 1973, a written notice to the owners corporation is taken to be a written notice under subsection (1)(b) to the owner or occupier of each lot within the strata scheme ...."
The notice which the body corporate had already gained while deciding against a veto would suffice, and there would be no need for any further s 79(2)(a) notice. Hence the existence of s 79(2)(a) points against the idea that the body corporate will necessarily already have received notice. And, indeed, the lack of any veto power in the body corporate is supported by the absence of any provision requiring that the body corporate be given notice before the development application is lodged.
153 There is admittedly a difficulty in the construction of paragraph (b)(i) and (iii) of the definition of "owner" propounded by the plaintiff. The difficulty is that to read the words in paragraph (b)(iii) "land that is the subject of a strata scheme" as meaning "the common property" is to read them too narrowly; and to read those words as applying to the whole of the land when the development which the subject of the development application affects the whole of the land is to adopt a construction which depends on reading additional words into the statute.
154 However, it is not necessary to adopt the construction advanced by the plaintiff, for two reasons. The first is that as a matter of ordinary language clause 49(1), even when read with paragraph (b)(i) and (iii) of the definition of "owner", does not mean what the claimants want it to mean. Secondly, even if it did, difficulties arise which suggest that the context or subject matter indicate that the statutory definition of "owner" should not apply.
155 As a matter of ordinary legal language, the owner of a lot - the owner of lot 1, for example, - is fairly to be described as an "owner". The owner has title to property, namely the lot. An entry is inserted in the Register recording the lot owner as entitled to an estate in fee simple in that lot. The lot owner has a corresponding certificate of title. As a matter of ordinary legal language, the body corporate, too, is fairly to be described as an "owner", but of the common property as distinct from any particular lot. Its ownership is recorded in a separate folio of the Register: Strata Schemes (Freehold Development) Act 1973 ss 18, 20 and 23. Clause 49(1) is entirely workable by recourse to those meanings of "owner". An individual lot owner can make a development application in relation to his or her or its lot, or can consent to a development application made by any other person in relation to that lot. A body corporate can make a development application in relation to the common property, or consent to a development application made by any other person in relation to the common property.
156 The claimants formulated the conclusion for which they contended thus:
"The relevant statutory provisions are Section 78A of the EP&A Act, which bestows upon an applicant a right to lodge a development application subject to the regulations, and clause 49 of the EP&A Regulation, which conditions that right with a requirement to first obtain the consent of the `owner' of the land (within the meaning of the Act)."
157 But the claimants did not demonstrate precisely how that requirement first to obtain the owner's consent arose from the words of the text. On analysis it is difficult to see any textual support for that requirement. If, in relation to a proposal by a lot owner to carry out development on that lot, subparagraphs (i) and (iii) of paragraph (b) apply to clause 49(1), clause 49(1)(a) permits the lot owner to apply, and by itself gives the body corporate no veto. Clause 49(1)(b) does not give the body corporate a veto either. A body corporate which desires to exercise a veto does not fall within the words: "A development application may be made ... by any other person" because that body corporate does not desire to make a development application for itself, but rather to veto a development application made by the lot owner. And the body corporate does not fall within the words "the owner of that land" in clause 49(1)(b), partly because the development application does not relate to the common property, only to the lot; and partly because the lot owner is not "any other person", but is rather the "owner" in clause 49(1)(a). Application of paragraph (b)(iii) of the definition of "owner" gives the body corporate the right to lodge a development application under clause 49(1)(a), but not a right to veto a development application lodged by a lot owner. There could only be a veto if in clause 49(1)(a) the words "the owner of the land to which the development application relates" are construed as encompassing only the body corporate, for if that were so, the owner of the lot would be "any other person", and the body corporate would have a veto under clause 49(1)(b). That construction would, however, be highly artificial: it would give paragraph (b)(iii) in its application to clause 49(1) complete primacy over paragraph (b)(i). Though that construction supports the view which the claimants advance, if it were sound, it would suggest that the present context and subject matter indicate that the definition of "owner" is not to apply. Even if paragraph (b)(iii) is not given primacy over paragraph (b)(i), there is a problem in applying the definition of "owner" in the present context and in relation to the present subject matter. It is that while paragraph (b)(i) ensures that a lot owner is an "owner", paragraph (b)(iii) renders the body corporate owner of the lot as well as the lot owner, which is absurd. The difficulties which paragraph (b)(iii) causes, and the ease with which the ordinary usages can apply in that context and in relation to that subject matter, suggest that the context and subject matter indicate that the definition of "owner" in relation to s 4(1) does not apply. This was an opinion which the trial judge supported. It was an opinion the validity of which was supported in the initial written argument of the plaintiff in this Court. It was not advanced thereafter, but it is sound.
158 To summarise, the construction of clause 49(1) which the claimants desire does not arise out of a natural reading of the language, even if the statutory definition of "owner" is applied. It only arises if the language is read in a strained way. But if it is read in that way, the context and subject matter indicate that the statutory definition of "owner" is inapplicable. If it is left out of account and the ordinary language meanings of "owner" and "land to which the development application relates" are applied, clause 49(1) operates sensibly in the overall context of the body of law dealing with development applications in relation to strata lots and common property, but without conferring any veto on the body corporate in relation to development within a single lot.
159 That construction accommodates the case where a development application affecting the whole of the land is made: either all the lot owners and the body corporate can apply under clause 49(1)(a), or a lesser number can apply under clause 49(1)(b) with the consent of the others, on the basis that an application for development which has a physical impact on a particular lot or on the common property cannot be made without the consent of the relevant owners of the particular land.
160 It has not been necessary to examine the merits of certain of the plaintiff's arguments, and it is therefore not necessary to examine the merits of those parts of the claimants' contentions advanced in rebuttal of them. As to the other arguments of the claimants, in some respects they did not answer what the plaintiff put, in other respects they purported to answer them but did not come to grips with them, and even in those instances where an answer did come to grips with what the plaintiff said, the answer was not convincing. The reasons why the claimants' answers are not convincing have already been set out. To what has been said, the following can be added.
161 So far as the arguments of the claimants contended that the outcome of their construction was "logical and reasonable", they face difficulties. It is not "logical" or "reasonable" that the owner of a fee simple interest in land, namely a lot in a strata scheme, should not be able to carry out development entirely within it without first obtaining the consent of the body corporate to the lodging of the development application. And even if this were "logical and reasonable" the construction of the statutory language which is called for to achieve that outcome creates the incongruities and difficulties described above. Further, the outcome could not be achieved without clear statutory language which does not exist. Whatever the merits of the claimants' construction in relation to integrated developments, it has no merit in relation to developments which, like the present one, are not integrated. The claimants' attempts to overcome the fact that s 79(1)(b) of the Environmental Planning and Assessment Act would do no useful work in the context of strata titles if their construction was correct are not convincing. The same is true of their attempts to reconcile the need for a special resolution to change the by-laws with the need for only an ordinary resolution to veto a development application.
162 Hence Halpin's case is wrongly decided. Bluewater District Services Pty Ltd v Sutherland Shire Council (1997) 97 LGERA 389 at 396 and Crawley v Sydney City Council (1998) 98 LGERA 21 at 27 are rightly decided.
163 On the true construction of the Environmental Planning and Assessment Act 1979 s 78A and the Environmental Planning Assessment Regulation 2000 clause 49, the owner of a lot in a registered strata plan who applies to a consent authority for consent to carry out development wholly within the boundaries of that lot is not obliged to obtain and evidence the consent of the body corporate to the lodging of that application.
The application for leave to appeal
164 In view of the fact that Halpin's case was wrongly decided and the trial judge's reasoning proceeded on the assumption that it was rightly decided, it is not necessary to consider the correctness of the trial judge's reasoning. Hence there is no point in granting leave to appeal with a view to examining it. The Notice of Contention, which contends that the trial judge's order is right on the grounds other than those he advanced, need not be considered either.
The application for leave to cross-appeal
165 The conclusion that Halpin's case was wrong would lead to a different order from those which the trial judge made. If a new order is to be made, it would be along the lines of that sought in the Notice of Cross Appeal. There is no point, however, in granting leave to cross appeal and making a declaration as sought by the plaintiff in the Notice of Cross Appeal. The reasoning set out above sufficiently establishes the legal position of the parties.
Orders
166 Further, though the orders of the trial judge are not appropriate in view of the fact that they rest on an assumption urged on him by the parties which is not correct, there is no point in setting them aside. They have been acted on and they have no further work to do. The body corporate had adopted a position which was not justified in law; while some other order would have been more apt as a means of correcting that position than those made by the trial judge, the harm caused by the adoption of that position by the body corporate has been cured by the orders which were made and which the body corporate has complied with.
167 The plaintiff has had a substantial measure of success in these proceedings and it is appropriate that its costs in this Court should be paid by the claimants.
168 However, it would be unjust if the first claimant were entitled to seek a contribution for those costs from the plaintiff. Section 229 of the Strata Schemes Management Act 1996 provides:
"(1) This section applies to proceedings brought by one or more owners of lots against an owners corporation or by an owners corporation against one or more owners of lots (including one or more owners joined in third party proceedings).
(2) The court may order in proceedings that any money (including costs) payable by an owners corporation under an order made in the proceedings must be paid from contributions levied only in relation to such lots and in such proportions as are specified in the order.
(3) If a court makes such an order the owners corporation must, for the purpose of paying the money ordered to be paid by it, levy contributions in accordance with the terms of the order and must pay the money out of the contributions paid in accordance with that levy."
Bearing in mind also that the fifth claimant discontinued, it is appropriate to order that any money payable under the costs order against the first claimant is to be paid from contributions levied only in relation to the lots owned by the second-fourth claimants proportionately to the unit entitlements of those claimants.
169 Counsel for the claimants appeared to indicate that the active claimant was the first claimant, but the second-fourth claimants did join in filing the Summons and prosecuting it in this Court. Hence they are liable for the costs consequences of those steps. According to Mr Scurr's affidavit of 27 July 2002, the "total unit entitlement" of the sixteen lots is 1,000. The second claimant, Roderick Holdings Pty Ltd, owns lots 3, 4, 10, 11, 12, 14 and 15 with a total unit entitlement of 297. The third claimant, Windermere Holdings Pty Ltd, owns lot 16 with a total unit entitlement of 80. The fourth claimant, Elem Investments Pty Ltd, owns lots 2, 8, 9 and 13 with a total unit entitlement of 316. The sum of those unit entitlements is 793. It is appropriate to order that any costs payable by the first claimant be paid from contributions levied only in relation to the above three groups of lots, proportionately to the respective unit entitlements of the second-fourth claimants.
170 Apart from the question of how the liability of the body corporate for the plaintiff's costs of the application for leave to appeal in other proceedings in this Court is to be met, there is also a question as to the responsibility of the body corporate for its own costs in relation to proceedings in this Court. Section 230 of the Strata Schemes Management Act 1996 provides:
"(1) An owners corporation cannot, in respect of its costs and expenses in proceedings brought by or against it under Chapter 5, levy a contribution on another party who is successful in the proceedings.
(2) An owners corporation that is unsuccessful in proceedings brought by or against it under Chapter 5 cannot pay any part of its costs and expenses in the proceedings from its administrative fund or sinking fund, but may make a levy for the purpose.
(3) In this section, a reference to proceedings under Chapter 5 includes a reference to proceedings on appeal."
It is far from clear that the proceedings before the trial judge were proceedings under Chapter 5. But in any event the court has, under s 76(1)(b) of the Supreme Court Act 1970, "full power to determine by whom and to what extent costs are to be paid". It would be quite unjust if the successful plaintiff had to assist in the payment of the costs of the first claimant through levies based on unit entitlement, or had to suffer indirectly as a result of existing assets of the first claimant being diminished for that purpose. The same is true of Service Corporation International Australia Pty Limited, the remaining lot holder. Accordingly it is appropriate to order that, in respect of the costs incurred by the first claimant in this Court, the first claimant is not to levy a contribution on the opponent or on Service Corporation International Australia Pty Ltd, nor to use any administrative fund, sinking fund or other existing assets for the purpose of meeting those costs.
171 These questions of costs were not debated in either written or oral submissions. It is thus appropriate that the costs orders not come into force until 28 days from the publication of these reasons for judgment; if within that period written submissions are filed pursuant to order 6 below seeking different orders as to costs, the costs orders are to be stayed pending the court's decision of the issues raised by those submissions.
172 The following orders are proposed.
1. The Summons is dismissed.
2. Leave to cross-appeal is refused.
3. The first-fourth claimants are to pay the opponent's costs of proceedings in this Court.
4. In the event that the costs order against the claimants is enforced against the first claimant, the costs are to be paid from contributions levied as follows:
(a) as to the second claimant in relation to lots 3, 4, 10, 11, 12, 14 and 15 in the proportion 297/793;
(b) as to the third claimant in relation to lot 16 in the proportion 80/793;
(c) as to the fourth claimant in relation to lots 2, 8, 9 and 13 in the proportion 316/793.
5. In respect of the costs of the first claimant incurred in this Court, the first claimant is not to levy a contribution on the opponent or Service Corporation International Australia Pty Ltd, nor to use any administrative fund, sinking fund or other existing assets for the purpose of meeting those costs.
6. Orders 4 and 5 are stayed until the later of the following two dates:
(a) the expiry of 28 days from the date of publication of these reasons for judgment;
(b) the determination by this Court of any application by any party to vary order 4 or order 5 made by filing and serving written submissions within 7 days; in the event that any such application is made, all other parties are to file and serve written submissions in answer within 7 days, and the party applying is to file and serve written submissions in response within 7 days.
173 SANTOW JA: I agree with Heydon JA that the claimants' application for leave to appeal against orders of Young CJ in Eq should not be granted and with the orders he proposes. While in large measure in agreement with the reasons of Heydon JA, there are some different emphases that I would wish to make, that will be apparent from my concurring reasons below. The relevant facts are sufficiently set out in the judgments of Heydon JA and Giles JA and I need not repeat them.
174 It is clear for the reasons stated by Heydon JA and Giles JA that leave to appeal is needed, given that the trial judge's decision was and remains interlocutory.
175 The more difficult question is whether the correctness of the decision of Cowdroy J in Halpin v Sydney County Council (2000) NSWLEC 218 should be permitted to be considered, in determining whether leave to appeal should be granted.
176 The question of whether Halpin's case may be considered invokes two principles. First, where a point is not taken in the court below and evidence could have been given there which, by any possibility, could have prevented the point from succeeding, it cannot be taken afterwards; Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418 at 438 and see also Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 7-8 and Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 at 497. Similarly the point cannot afterwards be taken where, if the point had been raised, the other party might have conducted the case differently at trial (Multicon Engineering Pty Ltd v Federal Airports Corporation (2000) 41 NSWLR 631 per Mason P at 645. These are essentially absolute bars. However, I agree for the reasons stated by Heydon JA, and briefly referred to below, that in the present circumstances it could not be said that evidence could have been given which, by any possibility, could have prevented the point from succeeding. Nor do I consider there has been shown that had the point been raised (the correctness of Halpin) the other party might have conducted the case differently at trial, on what was a pure point of law.
177 The second principle is that usually parties must be bound by the course they adopted at the trial (Browne v Dunn (1894) 6 R 67 at 75-76; Rowe v Australian United Steam Navigation Co Ltd [1909] HCA 25; (1909) 9 CLR 1 at 24; University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481 at 483; Multicon Engineering Pty Ltd v Federal Airports Corporation). At least in part this principle is founded on public policy considerations favouring the finality of litigation (see Rowe v Australian United Steam Navigation Co Ltd; Banque Commerciale SA (in Liq) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 at 284). However, in emphasising the word "usually", as is explained below, the interests of justice may exceptionally justify such a departure from the usual requirement that parties are bound by the course they adopted at trial. Such an exceptional departure presupposes no breach of the first principle.
178 In University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481 at 483 the High Court said:
"It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had the opportunity to do so."
179 Similarly in Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 7 Gibbs CJ, Wilson, Brennan and Dawson JJ held that:
"It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish."
180 There is no suggestion in these cases that the principles enunciated above have no application to appeals from an interlocutory determination. Indeed Coulton v Holcombe is an example of these principles being applied in an appeal from an interlocutory judgment of the Court of Appeal. Likewise Multicon Engineering Pty Limited v Federal Airports Corporation again involved an interlocutory stage of proceedings in relation to the challenge to a referee's report.
181 However, where it could not be said that evidence was capable of being given which, by any possibility, could have prevented the point not raised from succeeding, then in that circumstance, as Mason P explains in Multicon Engineering Pty Limited, it still "remains a question of whether the appellate court `may find it expedient and in the interests of justice to entertain the point'", citing Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 at 497 and also Jones v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 32 at 47. I would adopt here what is said by Giles JA (Mason P and Priestley JA concurring) in Chilcotin Pty Ltd v Cenelage Pty Ltd (1999) NSWCA 11 at [18],
"the particular circumstances must be considered, with due recognition that mistakes occur, that second thoughts are sometimes good thoughts, and that the appellant is entitled to justice; but extending justice to an appellant who has failed to take a point at the trial may work an unacceptable injustice on the respondent."
182 Here, faced with the urgency of lodging a development application to maintain a put and call option, the then plaintiff, whom I will refer to as Cameron, had no practical alternative but to assume the correctness of Halpin's case in seeking to compel consent from the Owners' Corporation. That said, it might have been a better course to have formally had noted that it reserved its position to challenge Halpin on appeal.
183 The interests of justice, particularly as they bear upon the claimants, are affected by the fact that the interlocutory context renders any consideration by this Court on appeal of Halpin's case incapable of giving rise to either res judicata or issue estoppel. That consideration is of the proper construction of clause 49 of the Environmental Planning and Assessment Regulation 2000; in particular whether "owner" in that clause, in the context of lodgement of a development application in relation to a strata lot not impinging upon common property, is to be construed as "the Owners' Corporation" for the relevant strata scheme or, instead, as the person recorded in the Register as entitled to an estate in fee simple in that lot. If one assumes the correctness of Halpin's case and thus the incorrectness of the two earlier decisions made after the relevant statutory changes, namely Blue Water District Services Pty Limited v Sutherland Shire Council (1997) 97 LGERA 389 at 396 and Crawley v Sydney City Council (1998) 98 LGERA 21 at 27, a person so registered as owner must obtain consent of the Body Corporate to the lodging of the relevant development application.
184 Heydon JA concludes there was no contravention of the first principle, that is to say, the claimants failed to demonstrate how any evidence in relation to the effect of the development application, assuming it to operate within Lot 1, could have assisted them to defeat the plaintiff's contention that Halpin's case was wrong. Moreover, Heydon JA earlier concludes that on the evidence, the issue of whether the work contemplated under the development application relates to areas of common property is to be resolved in favour of the plaintiff. This was because the claimants had entered upon cross-examination of two of the plaintiff's witnesses whose affidavit evidence was to the effect that the development did not extend beyond the boundaries of Lot 1 and no concession was obtained in cross-examination to the contrary of that evidence. Moreover, the claimants had submitted no evidence to the contrary of that proposition.
185 Heydon JA concludes that, "the plaintiff was thus correct in submitting that the contention raised on appeal or point of law, in respect of which `evidence could [not] have been given which by any possibility could have prevented the point from succeeding'", citing Suttor v Gundowda Pty Limited (supra), Coulton v Holcombe (supra), Water Board v Moustakas (supra).
186 Heydon JA dismisses the contention of the claimants that there was additional evidence that they could have called. The claimants relied on the statement of the plaintiff's case in the Particulars given on 1 August 2002 and the Outline of Submissions to the trial judge wherein the plaintiff at trial had agreed that "Halpin is correct". He dismisses that contention because
"they did not demonstrate how they were prejudiced by the attack on Halpin's case being presented now instead of at the trial. In view of their failure to point to any evidence they might have attempted to tender had they been aware of an attack on Halpin's case, contentions about their reliance on the way the plaintiff stated its case would call for affidavit support if they were to be made good. Yet no relevant affidavit was read."
187 But has the onus been placed too heavily upon the claimants, in requiring some specificity as to the additional evidence they could have called? Or in requiring affidavit evidence in support of the contentions about their reliance on the way the plaintiff stated its case? I do not consider so.
188 As to the first, it must be remembered that the hurdle imposed by Suttor v Gundowda Pty Limited is whether evidence could have been given which "by any possibility" could have prevented the point from succeeding. That suggests that once additional evidence is identified, it requires very little to demonstrate that there was at least the bare possibility that it could have prevented the point from succeeding. Nonetheless it must be identified. Here, the only additional conceivable evidence which the claimants might have adduced was evidence from their own witnesses as to whether the work contemplated under the development application related to areas of common property. But ex hypothesi, were such evidence to have been adduced and accepted, that would not have borne at all upon the correctness of Halpin's case but merely upon whether, even if Halpin's case were incorrect, the claimants would nonetheless succeed. It is not unduly onerous to require the claimants to state with some specificity the additional evidence, where otherwise it is not apparent what evidence could conceivably have borne upon the point of law not taken below but sought to be agitated on appeal. Likewise it was not unreasonable for affidavit evidence to be called for, rather than mere assertion as to reliance on the way the plaintiff stated its case and what flowed from that by way of prejudice.
189 As against allowing Halpin's correctness now to be argued, there are issues of public policy also invoked; namely the concern that the substantial issues between the parties are ordinarily settled at the trial. There is the public interest in finality of litigation. Finally, there is preservation of judicial time so other litigants are not delayed with their cases, by the late taking of points. Though each is important, the central issue remains whether the claimants would suffer any injustice by allowing Halpin's case to be considered and if not considered, the injustice to Cameron. There is moreover a public policy consideration to which Heydon JA refers favouring Cameron. It is the undesirability of determining a particular point of law (here in the context of a leave to appeal) on an assumption, quite possibly erroneous, that the law is in a particular state, namely as Halpin's case declared it. This too gives rise to hypothetical determinations involving some artificiality. As to it being possibly erroneous, there was not only Young CJ in Eq's clear doubt as to its correctness, but two earlier decisions of equal status to the contrary. It is true they did not specifically dealing with the 1995 definition of owner but nonetheless no one saw fit to press for the surprising conclusion that it did alter what appeared well settled. This was by what could only be described as a cleaning up amendment effected pursuant to the Statute Law Revision (Local Government) Act 1995 which, totally unheralded, was supposed to have reversed well-settled authority as to the meaning of "owner" in the present context, and which would not comport with that in the Strata Schemes Management Act 1996 passed a year later. This was when its evident purpose was to effectuate numerous formal amendments, particularly those necessitated by the substitution of the Local Government Act 1993 for that of 1919. The two earlier decisions to the contrary of Halpin to which I refer are Bluewater District Services Pty Ltd v Sutherland Shire Council (1997) 97 LGERA 389 at 396 and Crawley v Sydney City Council (1998) 98 LGERA 21 at 27. In terms of potential injustice to the claimants, it is difficult to see how agreeing to a very speedy hearing, preparing evidence, cross-examining witnesses, preparing written and oral argument and electing not to brief counsel involve any significant prejudice to the claimants save perhaps for the last. Were it suggested that prejudice might have resulted at trial from the failure to brief counsel, this presupposes that briefing counsel would have led to a different result. But the effect of briefing counsel is able to be tested by the ultimate outcome of counsel's argument in this Court on appeal where, subject to final determination of whether this was to be permitted, the correctness of Halpin's case was able to be fully argued by counsel on both sides.
190 Moreover, had Halpin's case been argued by counsel at trial in similar fashion, it does not seem likely that an interlocutory determination at trial would have avoided the appeal or shortened it in any way.
191 Finally, and here the consequence of this being an interlocutory proceeding becomes material to the interests of justice, it could not be said that an interlocutory determination giving rise neither to res judicata nor issue estoppel upon the correctness of Halpin's case, has the potential to prejudice the claimants in the way that, in theory at least, a final determination might do. It remains open to the claimants to seek to argue that matter in any subsequent proceedings. Nor are they precluded from agitating an appeal on damages, once a final determination is made upon that issue. Thus while therefore the relief Cameron claims now is contrary to the basis on which Cameron as Plaintiff claimed relief below (in no longer assuming and accepting the correctness of Halpin's case) the result will still be the same, if the plaintiff is successful. That result encompasses the same potential damages, and the same capacity to pursue its development application, than if based solely on consent being unable to be withheld. Both matters can be appealed as of right, once they cease to be interlocutory, given that the quantum of damages sought exceeds $100,000.
192 In reaching the conclusion I do, that Cameron is, exceptionally, not to be held bound by the course adopted at trial, taking into account the matters earlier noted, I consider that in reality what Cameron is thereby permitted to do is uphold the result (putting in a development consent without hindrance from the Owners' Corporation) in a different way. Thus I do not find the distinction decisive between compelling a consent and concluding no consent is required. The result in substance is the same.
193 Finally, I agree with what is said by Heydon JA in relation to the non-joinder of North Sydney Council. In particular I agree with his conclusion that the orders here contemplated do not directly affect the Council's rights against or liabilities to the plaintiff when there is no res judicata or issue estoppel. This is when the relevant development application has been lodged and remains open for consideration or rejection in accordance with the proper approach for Council to take in hearing objections if made by the other lot owners pursuant to s79 of the Environmental Planning and Assessment Act 1979 (and the Owners' Corporation, if it has an interest in the matter). In particular no declaration is contemplated by Heydon JA. Nor would I do other than make the orders proposed by Heydon JA, essentially denying leave to appeal and ordering costs against the claimants in the manner proposed, with a stay of twenty-eight days to permit argument on costs.
194 I agree with the reasons given by Heydon JA for concluding that Halpin's case was not correctly decided. There is nothing I can usefully add to them.
195 Like Heydon JA I see no utility in considering the reasons given by Young CJ in Eq in relation to his conclusion that the Body Corporate's refusal to consent derogated from the fee simply in Lot 1 owned by the plaintiff and thus that he was bound to give the consent, on the assumption that Halpin's case was correctly decided so that consent was required. I should merely make two observations. First, though Young CJ in Eq posed the relevant question as he saw it at the commencement of the trial in terms of whether there was any fiduciary obligation on an Owners' Corporation to an owner of a lot to give consent and, if so, whether that duty had been breached, his ultimate conclusion appears not to have been so based. This may have been because the delineation of the obligations of the Owners' Corporation by statute under the Strata Schemes Management Act 1996 (NSW) may not comport with a fiduciary obligation. However, I need express no view on that and expressly refrain from doing so.
196 Second, his judgment did not deal with whether, in giving or withholding consent, it would be a fraud on the relevant power, to deny that consent (see Houghton v Immer (No. 155) Pty Limited (1997) 44 NSWLR 46), taking into account the purpose of the power and the functions of the Owners' Corporation under the Strata Schemes Management Act 1996 (NSW). Again I need express no view on that. Neither that proposition, nor the related question of fraud on the minority were fully argued.
CONCLUSION
197 In summary, I agree that leave is needed, the correctness of Halpin's case can and should be considered, and that when so considered it is, with respect, incorrect. I would make the orders proposed by Heydon JA.
LAST UPDATED: 06/02/2003
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