Court of Appeal
Supreme Court
New South Wales
- Summary available
- Amendment notes
Medium Neutral Citation: Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250 Hearing dates: 23 September 2020 Decision date: 12 October 2020 Before: Basten JA at [1];
Macfarlan JA at [75];
Fagan J at [83]Decision: (1) Grant the applicants leave to appeal from the decision of the Appeal Panel of NCAT given on 27 May 2020.
(2) Direct that the applicants file, within 7 days of these orders, the draft notice of appeal contained in the white folder.
(3) Subject to compliance with order (2), allow the appeal and set aside orders (1)-(6) made by the Appeal Panel.
(4) Order that the respondent pay the applicants’ costs in this Court.
Catchwords: LAND LAW – strata schemes – by-laws – scope of subject-matter – purposive limits to the power to make by-laws – Strata Schemes Management Act 2015 (NSW), s 136(1)
LAND LAW – strata schemes – by-laws – restrictions on by-laws – requirement that by-law not be harsh, unconscionable or oppressive – whether by-law imposing blanket prohibition on keeping animals contravenes provision – Strata Schemes Management Act 2015 (NSW), s 139(1)
STATUTORY INTERPRETATION – use of dictionaries – whether three words comprise a composite statutory criterion
WORDS AND PHRASES – “harsh, unconscionable or oppressive” – Strata Schemes Management Act 2015 (NSW), s 139(1)
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 80, 83
Contracts Review Act 1980 (NSW), ss 4, 7, 9
Industrial Relations Act 1996 (NSW), s 84
Police Act 1990 (NSW), s 181E
Retirement Villages Act 1999 (NSW), ss 54, 134
Strata Schemes Development Act 2015 (NSW), s 4
Strata Schemes Management Act 2015 (NSW), ss 4, 5, 6, 8, 9, 12, 135, 136, 137, 137A, 139, 141, 142, 148, 150, 153, 157, 158, 246, 253; Pt 8
Strata Schemes Management Regulation 2016 (NSW), Sch 3
Cases Cited: ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; [2014] HCA 18
Ainsworth v Albrecht (2016) 261 CLR 167; [2016] HCA 40
Australian Securities and Investments Commission v Kobelt (2019) 93 ALJR 743; [2019] HCA 18
Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24
Byrne v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24
Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47
Casuarina Rec Club Pty Ltd v The Owners – Strata Plan 77971 (2011) 80 NSWLR 711; [2011] NSWCA 159
Eclairs Group Ltd v JKX Oil and Gas plc [2016] 3 All ER 641
Hope v Bathurst City Council (1980) 144 CLR 1; [1980] HCA 16
Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46
In the matter of Jimmy’s Recipe Pty Ltd (No 2) [2020] NSWSC 632
Owners – Strata Plan No 58068 v/ats Cooper [2019] NSWCATCD 62
Paciocco v ANZ Banking Group Ltd (2015) 236 FCR 199; [2015] FCAFC 50
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- Case
- [2020] NSWCA 250
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether the by-law was invalid on two grounds. Firstly, it considered whether the by-law fell within the scope of subject-matter permitted by section 136(1) of the *Strata Schemes Management Act 2015* (NSW), which governs the power to make by-laws. Secondly, the Court examined whether the by-law contravened section 139(1) of the Act, which prohibits by-laws that are harsh, unconscionable, or oppressive.
In its reasoning, the Court adopted a purposive approach to statutory interpretation, considering the ordinary meaning of the words in their context. It found that the phrase "harsh, unconscionable or oppressive" should be interpreted as a composite criterion, requiring a high threshold to be met before a by-law would be deemed invalid on this ground. The Court concluded that the by-law, by imposing a blanket prohibition on animals without any consideration for individual circumstances or the nature of the animal, was indeed harsh, unconscionable, and oppressive, and therefore invalid under section 139(1). Furthermore, the Court determined that such a by-law did not fall within the intended scope of section 136(1).
Consequently, the Court of Appeal granted the applicants leave to appeal, allowed the appeal, and set aside the orders made by the Appeal Panel. The respondent was ordered to pay the applicants' costs.
Orders
Orders of the court
(1) Grant the applicants leave to appeal from the decision of the Appeal Panel of NCAT given on 27 May 2020.
(2) Direct that the applicants file, within 7 days of these orders, the draft notice of appeal contained in the white folder.
(3) Subject to compliance with order (2), allow the appeal and set aside orders (1)-(6) made by the Appeal Panel.
(4) Order that the respondent pay the applicants’ costs in this Court.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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