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Cooper v The Owners - Strata Plan No 58068

Cooper v The Owners - Strata Plan No 58068

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Case Copied 12 October 2020 55 min read

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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
Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41
Project…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWCA 250
Decision Date: 12 October 2020

CaseChat Overview and Summary

The applicants, Mr and Mrs Cooper, sought to appeal a decision of the Appeal Panel of the NSW Civil and Administrative Tribunal (NCAT) concerning a by-law of their strata scheme, Owners - Strata Plan No 58068. The dispute centred on the validity of a by-law that imposed a blanket prohibition on the keeping of animals within the strata scheme.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41 Project…