Strata greenlight

The executive members of a corporation at a housing complex in St Andrew have been given the green light by the Court of Appeal to pursue their lawsuit in the Supreme Court against the occupants of an adjoining property and apply for a restraining order against breaches of the restrictive covenant.

On November 28 last year, a Supreme Court judge ruled that the corporation had no legal standing to bring the substantive claim or to pursue a further amended application.

The corporation appealed and, earlier this month, the Court of Appeal set aside the judge’s order.

A claim was filed by Monica Monique Walker and the corporation known as Proprietors Strata Plan No. 42 for the complex at 11 Haining Road, Kingston 5 against Heather Nasralla McKay, Wayne Nasralla, Edith Reardon, and Grace Donaldson Shaw in relation to an adjoining property at 9 Haining Road, Kingston 5.

Walker is the owner-occupier of a strata lot in Strata Lot 42 at 11 Haining Road, and the corporation is described in court documents as a “legal body corporate established to represent the collective interests of the proprietors of the (complex) and to manage the common areas of the (complex).

The first and second respondents, Heather Nasralla McKay and Wayne Nasralla, are the lessees of the adjoining property at 9 Haining Road while the third and fourth respondents are the lessors and registered proprietors of the property at 9 Haining Road.

The appellants applied for an injunction to prevent the respondents from dealing with their property, which intervenes restrictive covenant number one endorsed on the certificate of title for the respondents’ property. The restrictive covenant states that the property shall be used for residential purposes only.

Used as business

The appellants complain that the property is being used as business premises and in a manner that contravenes the restrictive covenant. The appellants list several acts which they say contravene the restrictive covenant and affect their quiet enjoyment of the property at 11 Haining Road. They complained that the actions of the respondents have resulted in property damage and breaches of their constitutional right to respect for and protection of private and family life.

In support of their application for injunctive relief, the appellants contend that several acts were being done on the adjoining property, including the playing of loud music, hosting large gatherings, and carrying out construction, which caused loud noise in contravention of the Noise Abatement Act, and failing to maintain trees, which caused damage to the boundary wall and common areas of the complex.

The law firm Hart Muirhead Fatta, which represented the first and second respondents, contended that there was no evidence that the corporation, being a body corporate, had the requisite authority to bring the claim or the application for injunctive relief. The other respondents did not participate in the proceedings in the Supreme Court and were not parties to the appeal.

Naylor & Mullings, the law firm representing the appellants, argued that the corporation was tasked with protecting and managing the complex and, therefore, if there was an interference with the property or the rights of the proprietors-occupiers, it has the authority to bring the claim.

After hearing the objection and the response, the judge ruled that no evidence was given of any express provision in the by-laws which gives the corporation the right to bring such a claim, therefore, it had no legal standing to bring the claim or to seek injunctive relief.

The corporation and Walker appealed on the grounds that the judge erred in her decision and it should be set aside.

In interpreting Sections 4(2) and 5 of the First Schedule of the Registration (Strata Titles) Act, the Court of Appeal said that having considered the New South Wales statute regarding the legal capacity of a corporation within a similar statutory framework, and as a matter of common sense, it appeared that the learned judge, in restricting the corporation’s right to sue only to proprietors of the complex, would have given an unduly restrictive and, indeed, crippling, meaning to Sections 4(2) and 5 of the act. Indeed, if the right to sue is restricted to only proprietors, then the right to be sued would also be similarly restricted. The court said it “refused to accept that that was the intention of Parliament because it must have been within its contemplation and expectation that third parties would, at least, be required to provide goods and services to the corporation and, therefore, could be affected by any acts or omissions of the corporation regarding the areas and matters under its control”. The court found that the judge misconstrued the sections of the Act as it related to the capability of the corporation to sue non-owners.

“In all the circumstances, it seems fair to conclude that the corporation’s complaint that the learned judge was wrong to focus only on the claim for nuisance is not without merit,” the court ruled. “Therefore, the crucial question that the learned judge ought to have resolved on the notice of application did not concern the corporation’s legal capacity to bring the claim or to seek injunctive relief but rather on the evidence presented and the law governing the grant of interim injunctions it was entitled to the relief sought. The application, so far as it was brought, by the corporation, should not have been terminated at that preliminary stage for the reasons advanced by the learned judge,” the court ruled.

The court, comprising Justice Marva McDonald-Bishop, Justice Nicole Foster-Pusey and Justice David Fraser, set aside the Supreme Court order and restored the corporation as a party to the claim which will be heard in the Supreme Court.

Legal costs were awarded against the first and second respondents.

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