The Owners Corporation - Strata Scheme 32195 v Dronstyle Pty Ltd Matter No 3876/98 [1998] NSWSC 702 (14 December 1998)

Last Updated: 18 January 1999

THE OWNERS CORPORATION - STRATA SCHEME 32195 v DRONSTYLE PTY LTD

3876/98

14 December 1998

Young J

The Supreme Court of New South Wales Equity Division

JUDGMENT

HIS HONOUR: This is an application for a mandatory interlocutory injunction brought by the developer of a cluster, being cluster 4 in a nine cluster strata plan development.

The cross-claimant claims that by estoppel, because the cross-defendant has sat by whilst sales were being made and buildings built, the cross-defendant is now bound to transfer lot 130 and its half interest in lot 131 in the development to the cross-claimant. The cross-claimant has already on-sold those lots to purchasers, who are very concerned about getting their property.

The court is very reluctant to grant interlocutory relief which has the result of determining virtually the whole proceedings or a substantial part of the proceedings. It requires a high degree of assurance that it is an appropriate case to do so. Mr Maston, who appeared with Mrs Stuckey-Clarke for the cross-claimant, says that this is such a case. However, I must confess that at this stage I would agree with Mr Newlinds and Mr Newton, who appeared for the cross-defendant, that the evidence is not yet there, if it be available at all, to develop the case to such an extent.

I am not satisfied on the evidence to date that this is an appropriate case for a mandatory interlocutory injunction. I would agree with the comments of both sets of counsel that this may well be a case where an early final hearing is needed in the interests of justice. It is in the expedition list next Friday, 18 December. Having been Expedition List Judge for some periods of time I realise that it is a matter of balancing the relative claims of expeditable cases, but I hope that this case might be able to be given an early final hearing.

However, I am not prepared to give interlocutory relief and the notice of motion of 30 October 1998 is accordingly dismissed with costs. The exhibits may be returned.