2 PHILLIP STREET SYDNEY

PROCEDURE – costs – whether to order owners corporation to indemnify plaintiffs for their costs – plaintiffs members of executive committee – NCAT orders vesting all functions of owners corporation in strata manager – apparent inability of owners corporation to appeal – rule in Foss v Harbottle applies to owners corporations – whether interests of justice exception to the proper plaintiff rule satisfied – owners corporation ordered to indemnify plaintiffs but not for costs incurred in pursuit of plaintiffs’ own interests PROCEDURE – costs – whether plaintiffs should pay the third defendant’s costs – not appropriate to order plaintiffs to pay third defendant’s costs – third defendant effectively appointed as the contradictor by the court – provisionally, the third defendant entitled to an indemnity from the owners corporation - owners corporation given leave to make submissions on whether it should be ordered to indemnify third defendant

PROCEDURE – civil – judgments and orders – application to set aside consent orders that owners corporation indemnify plaintiff lot owners in proceedings and pay costs of defendants in those proceedings – where second defendant appointed as strata managing agent under Strata Schemes Management Act 1996 (NSW), s 162 with all powers of executive committee of owners corporation – where executive committee resolutions appointing legal representative and instructing it to sign consent orders on behalf of owners corporation invalid because only second defendant as strata managing agent had authority to exercise functions of executive committee – rule in Harvey v Phillips – UCPR, r 36.16(2)(b) – where appearance of owners corporation ineffective at hearing during which consent orders were made because legal representatives for owners corporation had no valid retainer

REAL PROPERTY - strata schemes - whether orders of NSW Civil and Administrative Tribunal appointing strata managing agents displaced power of executive committee to appoint solicitor to act for Owners Corporation; PRACTICE AND PROCEDURE - setting aside of orders - whether serious question to be tried that orders obtained against good faith or in absence of party