Cooper v The Owners - Strata Plan No 58068

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.