Council Represents Lot Owners in Urgent Dispute

July, 2014

The recent case of Burwood Council v Ralan Burwood Pty Ltd [2014] NSWCA 179 provided an interesting set of circumstances where a Council acted to notify (and represent) all lot owners on an urgent basis.

The Council sought a declaration that the Construction Certificate issued by a certifier was invalid because the design and construction of a 330 unit strata scheme was not consistent with the development consent. The NSW Land & Environment Court (LEC) dismissed the application, and the Council appealed to the NSW Court of Appeal (NSWCA).

The developer of the strata scheme filed a Notice of Motion seeking orders that the Council was required to serve notice of the proceedings on all the owners and occupiers of the lots in the strata scheme and inviting interested parties to apply to be joined to the proceedings as a party to the appeal, as their rights would be affected if the LEC decision was set aside.

After hearing the Motion, the NSWCA directed the Council to formulate a proposed mechanism to join the owners of the lot property. The Council filed a Notice of Motion seeking orders that it be appointed to represent the owners and occupiers of the lots in the strata scheme, and annexed a letter which it proposed to send to each lot owner informing them of the proceedings.

The NSWCA held it was appropriate to make representative orders because the following requirements were satisfied:

1. The class of necessary parties is large, and it would be extremely difficult for the Council to join over 300 parties and serve them in accordance with the Court rules.
2. Each of the owners and occupiers had a common interest in the proceedings.
3. There was a common question of fact or law, being whether the Developer breached the terms of the development consent.
4. It was in the interests of justice that the representative orders be made. The proposed letter was adequate to inform the lot owners and occupiers of the nature of the appeal and their right to be joined as parties or to make submissions to the Court.

 

While in many ways this was a particular remedy for a particular set of circumstances, it does provide an interesting way in which the interests of lot owners were able to be protected on a group and urgent basis without needing to take formal instructions from all, and may provide some guidance for other circumstances where a similar group approach for stratas or community associations might need to be taken on an urgent basis.

For more information, please contact our Sydney Strata team:

paul-jurdeczka

Paul Jurdeczka | Partner
(02) 8289 5819
pjurdeczka@millsoakley.com.au

 

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