Keay v SP3132: restoring rights lost by consolidation error
Keay v The Owners - Strata Plan 3132 [2026] NSWSC 1150
In short
Errors in the scheme’s consolidated by-laws omitted part of a parking common property rights by-law and the table allocating storerooms to particular lots.
The Court granted declarations confirming the lot owner’s common property rights, despite the owners corporation not disputing the substance of those rights.
The Court held that s 138 of the Real Property Act 1900 extended, where necessary, to orders resulting in the amendment of a dealing.
A mandatory injunction was unavailable merely because the lot owner had not consented to the consolidation. An injunction is a remedy, not a cause of action.
Background
The lot owner held exclusive use rights over a parking space under by-law 44 and storeroom 61 under by-law 46. Both areas formed part of the scheme’s common property.
When the by-laws were consolidated in 2017, by-law 44 omitted part of its final sentence. More significantly for the lot owner, the table identifying the lots entitled to use storerooms 56 to 61 was omitted from by-law 46. The parties agreed that these were errors.
The lot owner relied on s 143 of the Strata Schemes Management Act 2015 (Act), including the requirement for an affected owner’s consent to the amendment of a common property rights by-law. He had not consented to an amendment.
Decision
Declarations of the lot owner’s rights
The owners corporation did not dispute the lot owner’s underlying rights. It nevertheless argued that the absence of a substantive dispute meant that declarations should not be made.
The Court rejected that argument. At [68], it explained that the owners corporation had an interest in opposing relief concerning rights over common property. That was enough to make it a proper contradictor, whether or not it chose to oppose the substance of the declarations.
The declarations also had practical utility. They determined the lot owner’s rights under the original by-laws and provided the foundation for correcting the Register.
Power to amend a dealing
The owners corporation argued that s 138(3) concerned a folio or a recording in a folio and did not permit the Court to amend a dealing.
The Court held that although the Real Property Act 1900 distinguishes between folios and dealings, the power under s 138(3) could extend to amending a dealing where necessary. Section 138(5), which permits the Court to order the delivery of an instrument to the Registrar-General, supported that construction.
The corrected consolidated by-laws were an instrument capable of falling within s 138(5). The Court considered them necessary to give effect to its determination of the lot owner’s rights.
Injunctions require a cause of action
The lot owner alternatively sought a mandatory injunction requiring the owners corporation to register corrected by-laws.
The Court explained that an injunction is a remedy, not a cause of action. A party seeking an injunction must first identify a cause of action entitling that party to substantive relief.
No such cause of action against the owners corporation was identified. In particular, the lot owner’s failure to consent to the 2017 consolidated by-laws was not itself a cause of action justifying an injunction.
Outcome
The substantive claims were upheld through declarations and ancillary orders under s 138, rather than by mandatory injunction. The proposed orders were to require the owners corporation to prepare corrected consolidated by-laws, provide them to the lot owner for agreement and deliver the agreed instrument to the Registrar-General with Form 15CH. The Registrar-General would then amend the folio recording.
The decision demonstrates that where an erroneous amendment or consolidation omits a lot owner’s existing common property rights, declarations in the Supreme Court may establish those proprietary rights and support ancillary orders restoring them to the registered by-laws. It does not establish that the absence of the owner’s consent, without an identified cause of action, independently supports injunctive relief.
