Background
Warwick Keay owned a lot in a North Bondi strata scheme. Historic common-property rights by-laws gave his lot exclusive use of parking spaces and a storeroom. When the owners corporation registered consolidated by-laws in 2017, it inadvertently omitted words from one by-law and the table allocating storerooms from another.
The parties agreed those were errors and did not dispute Mr Keay’s underlying rights. After unsuccessful attempts to obtain a correction, Mr Keay commenced proceedings seeking declarations of his rights and orders under s 138 of the Real Property Act 1900 (NSW) to correct the register. His original caveat had lapsed, and the parties agreed there was no need for the Court to determine the caveat relief.
The Court’s Holding
Pike J held that declarations should be made confirming Mr Keay’s exclusive-use rights. The owners corporation was a proper contradictor because it had an interest in the common property, even though it did not contest the substance of the proposed declarations. The declarations had practical utility by conclusively establishing the parties’ rights, including for any future Registrar-General process.
The Court rejected the owners corporation’s narrow construction of s 138. Although the provision refers to amending a folio or a recording in a folio, s 138(5) permits orders requiring delivery of an instrument needed to give effect to the determination. That extended to corrected consolidated by-laws. The Court indicated that orders should require the owners corporation to prepare corrected consolidated by-laws, obtain Mr Keay’s agreement, lodge them with Form 15CH, and require the Registrar-General to record them. The Court did not grant a standalone mandatory injunction, as no independent cause of action for it was identified.
Key Takeaways
- An interested party can be a proper contradictor for declaratory relief even if it does not substantively oppose the declaration.
- Section 138 of the Real Property Act can support orders involving an instrument needed to implement a determination about an interest in land.
- Correcting an admitted error in consolidated strata by-laws may require both a corrected instrument and an updated folio recording.
Why It Matters
The decision confirms that the Supreme Court can use s 138 to give practical effect to confirmed strata common-property rights, rather than leaving parties to an unresolved administrative correction process. It also distinguishes that ancillary statutory power from a mandatory injunction, which still requires an independent substantive cause of action.