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[2026] NSWCA 61
procedural. The application for leave to appeal was dismissed with costs ([25]).
The Court of Appeal did not decide an appeal about the ultimate validity of the meetings or the Agency Agreement. It decided that the Owners had not shown sufficient grounds for permission to appeal the refusal of a stay. The Court considered that the dispute was, in substance, about the extent of Bright & Duggan’s authority under its Agency Agreement. It also considered that expert determination between the Owners and Ausbao would not bind Bright & Duggan and could split related issues between different forums. Leave was refused, with costs.
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The Owners – Strata Plan No 100777 and Ausbao (286 Sussex St) Pty Ltd each held a stratum lot in a mixed-use building. A strata scheme was established within one of those lots, with a strata management statement (SMS). The Owners and Ausbao together made up the Building Management Committee (BMC). They had appointed Bright & Duggan Pty Ltd as strata manager under an Agency Agreement dated 23 October 2023 ([2], [5]).
The SMS contained a dispute resolution procedure. Clause 5.3 required the parties to “deal with disputes about this management statement according to this clause”. The process included a dispute notice, negotiation and, if the dispute remained unresolved, referral to an independent expert ([3]). The Owners sought to use that process in relation to a dispute about meetings convened by Bright & Duggan.
The judgment describes an ongoing disagreement about whether Bright & Duggan was required to follow directions from Mr Spicer, the Owners’ representative and BMC Secretary, when arranging meetings. Mr Spicer asserted that the Agency Agreement did not displace the Secretary’s authority under the SMS and that Bright & Duggan had acted beyond its powers by convening the AGM ([6]). The AGM scheduled for 11 September 2025 was adjourned for want of a quorum. The Owners attended the reconvened meeting on 25 September under protest. The validity of the meetings and resolutions was said to depend, in substance, on the scope of Bright & Duggan’s authority under the Agency Agreement ([7]).
The Owners issued a Dispute Notice. There is a date inconsistency in the judgment materials: Bell CJ refers to a notice dated 19 September at [4], while the relief reproduced from the Amended Statement of Claim describes it as issued on 18 September at [9]. The Court did not resolve that discrepancy in deciding the leave application.
Ausbao sought a stay of its Supreme Court proceedings in favour of expert determination. Pike J refused the stay on 18 December 2025, characterising the central dispute as being about Bright & Duggan’s authority under the Agency Agreement, rather than about the SMS ([1], [5], [8]). After that decision, Bright & Duggan was joined as a Second Defendant. The amended claim sought declarations about the validity of the dispute notices, the Agency Agreement, and the meetings and resolutions ([9]).
The Court of Appeal dismissed the Owners’ application for leave to appeal with costs. Bell CJ gave the principal reasons; Adamson JA and Ball JA agreed ([25]–[27]). The decision therefore concerned permission to appeal and the appropriateness of a stay, not a final determination of whether the meetings or resolutions were legally valid.
The Court began with the leave criteria. Bell CJ stated that an applicant generally must show an issue of principle, a question of public importance, or “a reasonably clear injustice going beyond something that is merely arguable” ([15]). The application did not raise an issue of principle, because the Owners did not contend that the primary judge had misidentified the relevant principles governing stays based on contractual dispute resolution clauses ([16]). Bell CJ also concluded that the matter did not raise a question of public importance ([17]).
The principal question was therefore whether the refusal of a stay gave rise to reasonably clear injustice. Bell CJ emphasised that this was a high threshold. The reasons refer to the need to avoid appellate interference that could cause delay and added costs in interlocutory matters ([18]–[20]). Bell CJ noted that dispute resolution clauses may involve contractual rights, but the decision whether to stay proceedings does not determine substantive rights in the sense discussed in Gilbert ([19]–[20]).
On the clause’s construction, Bell CJ did not need to make a final appellate ruling. The Owners argued that cl 5.3’s reference to disputes “about” the SMS should be read in light of cl 5.2, which referred to disputes “about matters arising from” the SMS ([11]). The primary judge had treated the different phrases as having different meanings and had read cl 5.3 more narrowly ([12]). Bell CJ considered the Owners’ competing construction had “considerable force”, but said that accepting it would not change the result on the character of the dispute ([21]).
The reasons locate the source of the dispute in the disagreement between Mr Spicer and Bright & Duggan about the agent’s delegated powers under the Agency Agreement ([21]). In Bell CJ’s view, even if the relevant clause extended to disputes arising from the SMS, this particular disagreement remained about the scope of the agency. That meant the Owners had not shown reasonably clear injustice from the primary judge’s characterisation.
The procedural circumstances also mattered. Bright & Duggan had been joined to the Supreme Court proceedings, and a decision there could bind it. An expert determination between only the Owners and Ausbao would not necessarily bind Bright & Duggan, although the agent’s authority was central to the dispute ([21]). Bell CJ also noted that the resolutions passed at the 25 September meeting were supported by both Ausbao and the Owners. No resolution contrary to the Owners’ wishes had been passed at that meeting ([21]).
Finally, the Court considered the practical consequences of granting a stay. The validity of the Dispute and Determination Notices would still need to be considered by the Court, and a stay limited to some claims could divide the dispute between the Court and the expert ([22]–[23]). There would also be no proper basis to stay the claims against Bright & Duggan, which was not a party to the SMS. Bell CJ considered that resolving all aspects of the dispute in one forum could justify not giving effect to a party’s contractual dispute resolution rights in the circumstances described ([24]).
The judgment does not announce a new test for leave to appeal or a new general rule about dispute resolution clauses. Bell CJ applied the established leave criteria set out in earlier decisions, including Jaycar, Be Financial, The Age Company, Secretary, Department of Family and Community Services v Smith, and PPK Willoughby ([15]). The Court’s conclusion was that this application did not satisfy those criteria on its facts ([16]–[21]).
On the meaning of the SMS, the judgment records two competing expressions: cl 5.2 referred to disputes “about matters arising from” the SMS, while cl 5.3 referred to disputes “about” the SMS ([11]–[12]). The primary judge treated the different wording as material. Bell CJ did not conclusively resolve the proper construction because the Owners’ proposed broader construction would not, in his view, change the characterisation of this dispute ([21]). It would therefore overstate the decision to describe it as settling the meaning of “about” or “arising from” in dispute resolution clauses generally.
The judgment also confirms, for this case, that a contractual dispute resolution clause does not automatically require a stay. Bell CJ stated that the decision remains discretionary and that such clauses may not oust the Court’s jurisdiction ([4], [19]). The discretionary analysis weighed the potential contractual process against the consequences of splitting claims and parties across different forums ([22]–[24]).
Before the decision, the primary judge had refused the stay. After the Court of Appeal’s decision, that refusal remained in place because leave to appeal was dismissed ([25]). The appellate Court’s alternative analysis gives an additional explanation: even on the Owners’ preferred construction, Bell CJ would have declined a stay on the procedural circumstances before him ([22]–[24]). The judgment does not determine the underlying claims about Bright & Duggan’s authority or the validity of the meetings.
At [15], Bell CJ set out the general leave threshold: “an issue of principle, a question of public importance, or a reasonably clear injustice going beyond something that is merely arguable.” In plain English, an arguable disagreement with an interlocutory ruling is not, by itself, enough. The applicant must meet one of the stated grounds.
At [16], Bell CJ said the application did not involve an issue of principle. The Owners were not challenging the primary judge’s identification of the general principles for deciding stay applications based on contractual dispute resolution provisions. In practical terms, the case turned on applying the existing principles to the particular facts and wording.
At [21], Bell CJ accepted that the Owners’ competing construction of cl 5.3 had “considerable force”, but held that it would not alter the characterisation of the dispute. The same paragraph states: “The expression ‘arising from’ looks to the source of the dispute.” The source identified was the dispute between Mr Spicer and Bright & Duggan about the extent of the agent’s delegated powers. The passage is important because it explains why the proposed broader reading of the clause did not establish an injustice warranting leave.
At [21], Bell CJ also contrasted the possible effect of expert determination with the Supreme Court proceeding after Bright & Duggan’s joinder. The Court proceeding could resolve issues in a manner binding on the joined agent; an expert determination between the Owners and Ausbao alone would not necessarily do that. This was a case-specific reason why the refusal of a stay did not produce the injustice asserted.
At [24], Bell CJ stated that, amid a multiplicity of proceedings, there can be strong reasons to resolve all aspects of a dispute in one forum, “even if that policy consideration is at the expense of a party’s contractual, dispute resolution rights.” This does not say that contractual dispute resolution rights are generally unimportant. It explains why, in the circumstances of this case, fragmentation and non-binding determination were relevant to the discretion.
The decision is most directly relevant to an application for leave to appeal an interlocutory refusal of a stay based on a contractual expert-determination clause. It illustrates that an applicant may need to address not only the construction of the clause, but also the separate leave threshold and the practical effect of the proposed stay.
The reasoning is especially pertinent where the underlying dispute concerns the authority of an agent appointed under a separate agreement, while the party seeking a stay relies on a management document containing a dispute resolution clause. Here, the Court regarded the dispute’s source as the disagreement about Bright & Duggan’s powers under the Agency Agreement ([6]–[8], [21]).
The decision also highlights the relevance of parties who are not bound by the contractual expert-determination process. If a material third party is joined to the court proceeding but is not a party to the dispute resolution agreement, the Court may consider whether an expert determination between the contracting parties would resolve the whole dispute ([10], [21], [24]).
A further potentially relevant situation is one where granting a stay would divide claims or parties between the Court and an expert. The Court considered the unresolved questions about the notices, the claims concerning Bright & Duggan, and the requested declarations about the meetings as reasons against fragmented proceedings ([22]–[24]). These are features of this judgment, not a comprehensive checklist for every stay application.
The supplied judgment contains no information about decisions made after 16 April 2026 that considered or applied this case. Its “Cases Cited” list and reasons identify authorities that pre-date this judgment, including decisions about leave criteria, stays, and the exercise of discretion. Those authorities cannot establish how later courts have treated this decision.
The judgment itself records that Bell CJ relied on earlier leave authorities for the applicable threshold ([15]), discussed earlier authorities about the character of a stay decision and restraint on appellate intervention ([18]–[20]), and cited authority concerning fragmentation and the resolution of disputes in one forum ([24]). This describes the reasoning and authorities used in this judgment. It does not provide a basis for stating whether later courts have followed, distinguished, or otherwise treated it.
The Court did not finally decide whether cl 5.3 should be construed narrowly as applying to disputes “about” the SMS, or more broadly by reference to cl 5.2’s wording about disputes “about matters arising from” it. Bell CJ said the Owners’ proposed construction had considerable force, but that accepting it would not change the outcome because of his characterisation of the dispute’s source ([11]–[12], [21]).
The judgment also did not determine whether Bright & Duggan had authority to convene the meetings, whether the meetings were validly convened, or whether their resolutions were valid. Those matters were among the claims before the Supreme Court and were not decided in the leave application ([7], [9], [21]).
Nor did the Court decide the validity or effect of the Dispute and Determination Notices. It treated those questions as matters that would still need to be resolved in the proceedings, and noted that doing so there could avoid an additional dispute about the notices’ efficacy ([21]–[23]).
Finally, the reasons do not resolve the inconsistency between the Dispute Notice date stated at [4] and the date appearing in the reproduced amended pleading at [9]. The judgment’s disposition did not depend on resolving that difference.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: The Owners – Strata Plan No 100777 v Ausbao (286 Sussex St) Pty Ltd [2026] NSWCA 61
Hearing dates: 10 April 2026
Date of orders: 16 April 2026
Decision date: 16 April 2026
Before: Bell CJ at [1];
Adamson JA at [26];
Ball JA at [27].
Decision: Application for leave to appeal dismissed with costs
Catchwords: PRACTICE AND PROCEDURE — application for leave to appeal from decision refusing to grant a permanent stay of proceedings in favour of expert determination — construction of expert determination clause — characterisation of parties’ dispute — relevance of third party as a proper party to proceedings — criteria for leave to appeal not met
Legislation Cited: Civil Procedure Act 2006 (NSW) s 56
Conveyancing Act 1919 (NSW) Part 23 Div 3B
Strata Schemes Development Act 2015 (NSW) s 9(1)
Supreme Court Act 1970 (NSW) ss 101(2)(e), 101(2)(r)(i)
Cases Cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
CBRE (V) Pty Ltd v Trilogy Funds Management Ltd (2021) 107 NSWLR 202; [2021] NSWCA 316
Compagnie Des Messageries Maritimes v Wilson (1954) 94 CLR 577; [1954] HCA 62
CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345; [1997] HCA 33
Four Colour Graphics Australia Pty Ltd v Gravitas Communications Pty Ltd [2017] FCA 224
In the matter of the Will of F B Gilbert (dec) [1946] NSWStRp 24; (1946) 46 SR (NSW) 318
Incitec Ltd v Alkimos Shipping Corporation (2004) 138 FCR 496; [2004] FCA 698
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Lepcanfin Pty Ltd v Lepfin Pty Ltd (2020) 102 NSWLR 627; [2020] NSWCA 155
Lipman Pty Ltd v Empire Facades Pty Ltd (formerly known as Empire Glass and Aluminium Pty Ltd) [2017] NSWCA 217
Marroun v State Transit Authority (2017) 96 NSWLR 295; [2017] NSWCA 273
PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206
The Age Company Ltd & Ors v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26
The Illawarra Community Housing Trust Limited v MP Park Lane Pty Ltd [2020] NSWSC 751
Wigmans v AMP Ltd (2019) 103 NSWLR 543; [2019] NSWCA 243
Category: Principal judgment
Parties: The Owners - Strata Plan No 100777 (Applicant)
Ausbao (286 Sussex St) Pty Ltd (Respondent)
Representation: Counsel:
N H Beaumont SC with T L Hollo (Applicant)
C N Bova SC with A Mohseni (Respondent)
Solicitors:
Kerin Benson Lawyers Pty Ltd (Applicant)
Dentons Australia Ltd (Respondent)
File Number(s): 2026/00009930
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
This case involved an application to challenge an interlocutory decision of Pike J (the primary judge) declining to stay proceedings pending in the Equity Division in favour of expert determination.
The Applicant, the Owners – Strata Plan No 100777 (the Owners), and the Respondent, Ausbao (286 Sussex St) Pty Ltd (Ausbao), each holds a stratum lot in a mixed-use building (the Building) which was subdivided by the creation of two “Stratum Lots” pursuant to the provisions of Division 3B of Part 23 of the Conveyancing Act 1919 (NSW). One of the Lots was further subdivided to create a “strata scheme” under the Strata Schemes Development Act 2015 (NSW), which was brought into effect by the registration of a “strata plan” and a “strata management statement” (the SMS).
The Owners and Ausbao comprised the Building Management Committee (the BMC) under the SMS and had together entered into an agency agreement with Bright & Duggan Pty Ltd (Bright & Duggan), appointing it as strata manager on 23 October 2023. Bright & Duggan was not originally a party to the Supreme Court proceedings but, subsequent to the primary judge’s decision, it was joined as a Second Defendant with the leave of the Court.
The application for a stay was made on the basis of a dispute resolution clause in the SMS to which the Owners and Ausbao were each a party. The key aspect of the dispute resolution clause was the requirement in cl 5.3 that the parties “must deal with disputes about this management statement [the SMS] according to this clause”. The process as set out in cl 5 of the SMS required the giving of a “dispute notice”, subsequent negotiation, and ultimately, following the issue of a “determination notice” in the event that the dispute was not able to be resolved consensually, the referral of the dispute to an independent expert for determination.
The central question before the primary judge was whether the underlying dispute which had caused the Owners to issue a Dispute Notice and led to Ausbao seeking relief in the Supreme Court proceedings was properly characterised as being “about” the SMS such that the dispute resolution clause in the SMS was engaged. The crux of the Dispute Notice concerned the validity of an AGM called by Bright & Duggan to be held on 11 September 2025, which was later adjourned to 25 September 2025, and the resolutions passed in it.
The primary judge characterised the dispute as being “about” the agency agreement with Bright & Duggan in relation to the management of the Building, and not “about” the SMS. His Honour rejected the argument that the reference in cl 5.3 of the SMS to “disputes about this management statement” should be construed as meaning “disputes about matters arising from this management statement” in light of the language of cl 5.2 which provided that “[t]he parties must endeavour in good faith to resolve disputes about matters arising from this management statement before taking action under this clause.”
In the application for leave to appeal, the Owners challenged the primary judge’s characterisation as to what the dispute was “about” and included in that argument was a challenge to his Honour’s construction of cl 5.3 of the SMS.
The Court (Bell CJ, Adamson JA and Ball JA agreeing) held, refusing leave to appeal:
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164; The Age Company Ltd & Ors v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206; PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48, cited.
Lepcanfin Pty Ltd v Lepfin Pty Ltd (2020) 102 NSWLR 627; [2020] NSWCA 155; The Illawarra Community Housing Trust Limited v MP Park Lane Pty Ltd [2020] NSWSC 751, referred to.
In the matter of the Will of F B Gilbert (dec) [1946] NSWStRp 24; (1946) 46 SR (NSW) 318, considered.
Wigmans v AMP Ltd (2019) 103 NSWLR 543; [2019] NSWCA 243; CBRE (V) Pty Ltd v Trilogy Funds Management Ltd (2021) 107 NSWLR 202; [2021] NSWCA 316; CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345; [1997] HCA 33, cited.
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40*; Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd* (2019) 99 NSWLR 419; [2019] NSWCA 61; Incitec Ltd v Alkimos Shipping Corporation (2004) 138 FCR 496; [2004] FCA 698, cited*.*
BELL CJ: These reasons relate to an application for leave to appeal from an interlocutory decision made on 18 December 2025 of Pike J (the primary judge) declining to stay proceedings pending in the Equity Division: Ausbao (286 Sussex St) Pty Ltd v The Owners – Strata Plan No. 100777 [2025] NSWSC 1565 (PJ or primary judgment).
The Applicant, the Owners – Strata Plan No 100777 (the Owners), and the Respondent, Ausbao (286 Sussex St) Pty Ltd (Ausbao), each holds a stratum lot in a mixed-use building (the Building) which was subdivided by the creation of two “Stratum Lots” pursuant to the provisions of Division 3B of Part 23 of the Conveyancing Act 1919 (NSW). As the primary judge explained, subdivision of this land can include one of the stratum lots being further subdivided to create a strata scheme under the Strata Schemes Development Act 2015 (NSW). This is brought into effect by registration of a “strata plan”: s 9(1). If this occurs, a strata management statement must also be registered at the same time as a strata plan.
The application for a stay was made on the basis of a dispute resolution clause in the Strata Management Statement (the SMS) to which the Owners and Ausbao were each a party. The key aspect of the clause in question was the requirement that the parties “must deal with disputes about this management statement [the SMS] according to this clause”: cl 5.3. The process as set out in cl 5 of the SMS required the giving of a “dispute notice”, subsequent negotiation, and ultimately, following the issue of a “determination notice” in the event that the dispute was not able to be resolved consensually, the referral of the dispute to an independent expert for determination.
The central question before the primary judge was whether the underlying dispute which had caused the Owners to issue a Dispute Notice by letter dated 19 September 2025 (the Dispute Notice) and led to Ausbao seeking relief in the Supreme Court proceedings was properly characterised as being “about” the SMS such that the dispute resolution/expert determination clause in the SMS was engaged. If it was not, the basis for any stay of proceedings fell away because it was only if cl 5 was engaged that there could be any contractual basis for a stay of the Supreme Court proceedings. Even then, the decision whether to grant a stay was discretionary, given that dispute resolution clauses may not oust the jurisdiction of the court: Compagnie d**es Messageries Maritimes v Wilson (1954) 94 CLR 577; [1954] HCA 62.
The primary judge, in a carefully reasoned judgment, characterised the dispute between the parties as in fact being “about” an Agency Agreement in relation to the management of the Building and not “about” the SMS. In that context, the Owners and Ausbao comprised the Building Management Committee ( ) under the SMS and had together entered into an Agency Agreement with Bright & Duggan Pty Ltd (), appointing it as strata manager on 23 October 2023 (). Under the SMS, Mr Spicer, as representative of the Owners, acted as Secretary of the BMC. At [61]-[64] of his reasons, the primary judge said the following:
“The issue that then arises is whether the current dispute can be said to be ‘about’ the SMS – being its interpretation or application, or as senior counsel for the Owners put it, the true meaning and effect of the SMS. In my view it is not.
The essence of the dispute is whether Bright & Duggan was empowered to call the AGM. The Owners contend that Bright & Duggan was not because Bright & Duggan was required to follow the instructions of Mr Spicer as Secretary of the BMC.
Such a dispute is not ‘about’ the SMS. There is no issue that Mr Spicer is the Secretary of the BMC. The fact that he was so appointed and has powers under clause 2.17 of [the] SMS does not make the dispute ‘about’ the SMS. Bright & Duggan is not a party to the SMS. It is a party to the Agreement.
The dispute is really one between principal (the BMC through the Secretary) and the Agent (Bright & Duggan) as to the scope of the agency conferred on Bright & Duggan.”
“Firstly, Bright & Duggan has been delegated authority to perform certain tasks which are normally performed by the Secretary. It is important to note that the power delegated to Bright & Duggan does not usurp the power vested in the Secretary by the SMS.
Secondly, nothing in the Agency Agreement disturbs the principle detailed at the first point.
In the light of the above, authority resides with the Secretary to inter alia:
- prepare the Agenda; and
- determine when meetings are held.
It is not within the authority of Bright & Duggan to:
- dictate when a meeting takes place;
- determine whether an instruction by the Secretary is reasonable or otherwise; or
- generally override the authority of the Secretary as clearly set out in the SMS.
Whilst your availability for a meeting is a factor in determining when a BMC meeting occurs, it is not the sole factor.
Further, it is not acceptable for you to simply disregard an instruction given to you by the Secretary and act unilaterally. Indeed, as an employee of the agent which owes the BMC a fiduciary duty to act in the best interests of the BMC, to do so demonstrates an egregious disregard for the fiduciary duty owed to the BMC as the strata managing agent’s authority originates from the Secretary’s authority.
Whether or not such conduct merits a complaint to the Office of Fair Trading is a matter for future consideration.”
The representatives of the Owners did not attend the AGM on 11 September 2025, and so, having not reached a quorum, it was adjourned until 25 September 2025 (which the Owners did attend and participate in, albeit under protest and with rights reserved). The basis for the asserted invalidity of each meeting and the resolutions passed in them related in substance to the actions of Bright & Duggan in convening and proceeding with them, and the question of validity will ultimately turn on the extent of Bright & Duggan’s authority under the Agency Agreement. On the evidence before the Court, Ausbao had not participated in the debate between Mr Spicer and Bright & Duggan as to the extent of or limits to Bright & Duggan’s authority prior to the issuing of the Dispute Notice. At most, it had been copied into correspondence between Mr Spicer and Bright & Duggan.
At [65] of his reasons, the primary judge observed:
“The fact that there is presently a dispute between Ausbao and the Owners about whether the meetings were validly convened – and that Ausbao and the Owners are each Members under the SMS – does not make the dispute ‘about’ the SMS. The dispute remains the same – it is ‘about’ the scope of the authority of the agent (Bright & Duggan) under its Agreement. Bright & Duggan is likely a proper party to the determination of the dispute.”
“1 Declaration that the Dispute Notice issued by the First Defendant on 18 September 2025 is invalid and of no effect.
2 Declaration that the Determination Notice issued by the First Defendant on 25 September 2025 is invalid and of no effect.
3 The First Defendant, by itself, officers, and agents, be enjoined from taking steps under the purported Dispute Notice and Determination Notice to appoint an expert for determination under clause 5 of the Strata Management Statement.
3A Declaration that on the proper construction of the Agency Agreement, the Second Defendant is the agent of the Plaintiff and the First Defendant as members of the Building Management Committee.
3B Declaration that on the proper construction of the Agency Agreement, the Plaintiff and the First Defendant have delegated to the Second Defendant full authority to convene meetings of the Building Management Committee and to prepare notices, agendas and minutes for those meetings.
4 Declaration that the general meetings of the Building Management Committee on 11 September and 25 September 2025 were validly convened and that the resolutions passed in those meetings are valid.”
“Of more significance is the fact that Bright & Duggan – a proper party in my view – is not a party to this SMS and thus the expert determination provisions. It could not be compelled to participate in any expert determination and would not be bound by any such determination.”
Indeed, discretionary arguments based upon the proper constitution of the proceedings weighing against any stay, formed the basis of a draft Notice of Contention filed by Ausbao.
“The parties must endeavour in good faith to resolve disputes about matters arising from this management statement before taking action under this clause.”
“Clause 5.3 and the provisions that follow it, apply to a narrower range of disputes – namely disputes ‘about’ the SMS. The language of clause 5.2 (arising from) and clause 5.3 (about) is different. I do not accept the submission advanced by the Owners that this was, in effect, a drafting slip and no difference was intended between clause 5.2 and 5.3 – they were intended to apply to the same range of disputes.
In The Owners – Strata Plan No 2661 v Selkirk [2024] NSWSC 760 at [14], Leeming JA, sitting at first instance, recently remarked that ‘ordinarily a shift in the language … implies a shift in legal meaning’, although context is of course important.
The present context does not suggest that it was intended that the different terms would have the same meaning.
I do not accept that the concluding words of clause 5.2 ‘before taking action under this clause’ bring about the construction contended by the Owners. Those words still have work to do where the subsequent clauses apply only to a narrower set of disputes.
The ordinary meaning of clause 5.2 is simply to impose an obligation on the parties to endeavour to resolve a broad range of disputes in good faith.
Clause 5.3 is substantively different. The first sentence imposes a mandatory obligation on the parties to follow the dispute resolution procedure in the remaining provisions where the dispute is ‘about’ the SMS. In relation to such disputes there is a more prescribed negotiation process in clause 5.5 and 5.6.”
His Honour, after referring to Four Colour Graphics Australia Pty Ltd v Gravitas Communications Pty Ltd [2017] FCA 224, also observed at [58] that:
“The fact that dispute resolution provisions are to be read liberally does not permit a court to depart from the meaning of the words chosen: see Illawarra Community at [45]. The words should be given their ordinary meaning.”
“Insofar as the dispute is said to be or at least include, whether to renew Bright & Duggan’s Agreement, such dispute is not ‘about’ the SMS. Such a ‘dispute’ is really nothing more than a deadlock that is the result of the application of the provisions of the SMS. The nature of the arrangements as set out above, is that each of Ausbao and the Owners must agree to a resolution otherwise there is a deadlock. A deadlock is not a dispute ‘about’ the SMS.
The nature of the dispute may be tested by asking what relief the expert would be able to give in relation to the ‘dispute’? There is nothing for the expert to resolve. The position in this regard is similar to that dealt with by Sackar J in The Owners Corporation – Strata Plan 70672 v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2011] NSWSC 973; (2011) 1 STR (NSW) 457 at [121]-[122].”
Leave to appeal is required because a judgment or order dismissing an application for (or indeed granting) a permanent stay of proceedings is “interlocutory” for the purposes of s 101(2)(e) of the Supreme Court Act 1970 (NSW) (Supreme Court Act) (Lipman Pty Ltd v Empire Facades Pty Ltd (formerly known as Empire Glass and Aluminium Pty Ltd) [2017] NSWCA 217 at [3]) and also because the proposed appeal is from a final judgment or order in proceedings of the Court that involves a matter at issue which has not been shown to amount to, or be of value exceeding $100,000 (Supreme Court Act s 101(2)(r)(i)). That is so in a case such as this which does not have a “readily ascertainable monetary value”: Marroun v State Transit Authority (2017) 96 NSWLR 295; [2017] NSWCA 273 at [12].
Leave applications in this Court attract a general obligation on the applicant for leave to establish that there is an issue of principle, a question of public importance, or a reasonably clear injustice going beyond something that is merely arguable: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[39]; The Age Co**mpany Ltd & Ors v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]; PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [6] (PPK Willoughby).
The current application does not involve an issue of principle. It was not suggested that the primary judge erred in his Honour’s identification of the relevant principles associated with stay applications based upon dispute resolution clauses in commercial contracts. His Honour identified the relevant principles including by reference to the decision of this Court in Lepcanfin Pty Ltd v Lepfin Pty Ltd (2020) 102 NSWLR 627; [2020] NSWCA 155 and the decision of Hammerschlag J in The Illawarra Community Housing Trust Limite**d v MP Park Lane Pty Ltd [2020] NSWSC 751 at [41] to [46] which itself collected many of the leading authorities.
Nor was it suggested (nor could it have been) that the matter raised a question of public importance.
As to the third established criterion for the grant of leave, namely whether the decision in respect of which leave is sought gave rise to “a reasonably clear injustice going beyond something that is merely arguable”, this formulation sets a reasonably high bar for good reason, as Simpson AJA and I pointed out in PPK Willoughby by reference to the sage observations of Sir Frederick Jordan in ) [1946] NSWStRp 24; (1946) 46 SR (NSW) 318 at 323 (). Sir Frederick Jordan had expressed the opinion in that:
“there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. If a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.” (Emphasis added).
I have previously observed that “it may be that the decision to grant a permanent stay of proceedings does not sit comfortably within the dichotomy Sir Frederick Jordan drew in In Re Will of F B Gilbert (dec) …, namely between ‘an exercise of discretion on a point of practice or procedure’, on the one hand, and ‘an exercise of discretion which determines substantive rights’, on the other hand”: Wigmans v AMP Ltd (2019) 103 NSWLR 543; [2019] NSWCA 243 at [34]; see also CBRE (V) Pty Ltd v Trilogy Funds Management Ltd (2021) 107 NSWLR 202; [2021] NSWCA 316 at [4]-[10]. A dispute resolution provision may be seen as a source of contractual rights albeit of somewhat attenuated kind insofar as a court retains a discretion not to grant a stay (or an anti-suit injunction) even if the commencement of local (or foreign) proceedings amounts to a breach of such a provision: see CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 391-394; [1997] HCA 33. Further, as already noted, such a clause may not oust the jurisdiction of the court: see [4] above.
While a decision to grant or refuse a stay of proceedings will involve questions of contractual rights where a dispute resolution clause is involved, no determination of substantive rights in the sense referred to in Gilbert is involved. The decision made by the primary judge, while perhaps not aptly characterised as one falling into Sir Frederick Jordan’s first category in Gilbert, is closer to it on the spectrum than the second category and Chief Justice Jordan’s observations as to the need for “a tight rein” to be kept on interference with orders of the kind made by the primary judge are apposite in the present case. Indeed, it may well be that the entirety of the substantive dispute between the parties could have been resolved even in the very short period between the primary judge’s decision and the hearing and determination of this application.
To return to the question of whether the decision in respect of which leave is sought gave rise to a “reasonably clear injustice going beyond something that is merely arguable”, in my view it did not for at least the following reasons:
While the competing construction of cl 5.3 of the SMS for which the Owners contended (as noted in short form at [11] above) had, with respect to the primary judge, considerable force, even if it were to be accepted, the primary judge’s characterisation as to what the dispute was “about”, even in the extended sense of cl 5.3 contended for by the Owners, would still, in my opinion, have been correct. The expression “arising from” looks to the source of the dispute. Here, that was the dispute between Mr Spicer and Bright & Duggan as to the extent of the latter’s delegated powers under the Agency Agreement.
There is no reasonably clear injustice or indeed any injustice at all generated as a result of the challenged decision: the parties will not only no doubt have the questions raised by the Amended Statement of Claim resolved expeditiously by Pike J but, in light of the joinder of Bright & Duggan, they will be resolved in a manner that binds Bright & Duggan and thus will be determinative in a way that an expert determination between the Owners and Ausbao alone would not necessarily be. In this context, it is relevant to note that, in correspondence with Bright & Duggan, the Owners had reserved their rights to sue Bright & Duggan for breach of the Agency Agreement.
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The Owners �e" Strata Plan No 100777
Ausbao
(2000) 203 CLR 172
(2019) 99 NSWLR 419
(2021) 107 NSWLR 202
(1954) 94 CLR 577
(1997) 189 CLR 345
(2004) 138 FCR 496
(2020) 102 NSWLR 627
(2017) 96 NSWLR 295
(2017) 95 NSWLR 597
(2013) 82 NSWLR 268
(2019) 103 NSWLR 543
The application for leave to appeal was dismissed with costs ([25]).
Because of the structure of voting under the SMS and the absence of a deadlock provision, the only resolutions passed at the impugned AGM held on 25 September 2025 were those supported both by Ausbao and the Owners. In other words, no resolution contrary to the wishes of the Owners was passed at the meeting the validity of which they seek to impugn.
Fourthly, resolution of the dispute in this Court will obviate the time and related expense involved in a debate as to the efficacy of the Dispute and Determination Notices that were issued by the Owners (see prayers 1 and 2 of the Amended Statement of Claim) and which raised the issues referred to by Pike J at [66]-[67] of his reasons which have been extracted at [13] above. Mr Beaumont SC, who appeared for the Owners, accepted with commendable candour that the inclusion of questions relating to the reappointment of Bright & Duggan in the Dispute Notice that was issued was somewhat tendentious, given that it had not been the subject of an earlier dispute or good faith negotiations between the parties as required by cl 5.2 of the SMS. Parenthetically, the inclusion of that issue in the Dispute Notice issued by the Owners was confirmatory of the primary judge’s characterisation of the essence of the dispute.
Also affecting my decision to refuse leave to appeal is the fact that, even if leave were granted and the Owners’ arguments as to the construction of cl 5.3 and the characterisation of the dispute were accepted, on the re-exercise of discretion (which may have regard to matters arising subsequent to the original decision: see Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 at [24], [30]-[32]), I would have declined to stay the proceedings for two related reasons.
First, the question of the validity of the Dispute and Determination Notices raised by prayers 1 and 2 of the Amended Statement of Claim would still, prima facie at least, have had to be resolved by the Court and so there would be a bifurcation of proceedings if the stay were only granted in relation to prayer 4 of the Amended Statement of Claim.
Secondly, there would have been no proper basis to stay the proceedings against Bright & Duggan in respect of whom the relief sought in prayers 3A and 3B of the Amended Statement of Claim was particularly germane. A decision to stay Ausbao’s proceedings only as against the Owners would thus have bifurcated the proceedings in an additional way and would have been in tension with the requirements of s 56 of the Civil Procedure Act 2006 (NSW). In the face of a multiplicity of proceedings, there are strong reasons for resolving all aspects of a dispute in one forum even if that policy consideration is at the expense of a party’s contractual, dispute resolution rights: Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61 at [81]-[85]; Incitec Ltd v Alkimos Shipping Corp**oration (2004) 138 FCR 496; [2004] FCA 698.
For the foregoing reasons, the application for leave to appeal should be dismissed with costs.
ADAMSON JA: I agree with the Chief Justice.
BALL JA: I agree with the Chief Justice.