EKG Pastries Pty Ltd v The Owners - Strata Plan No. 87145

[2022] NSWCATCD 65

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EKG Pastries Pty Ltd v The Owners – Strata Plan No. 87145 [2022] NSWCATCD 65

Hearing dates:

25 February 2022

Date of orders:

01 June 2022

Decision date:

01 June 2022

Jurisdiction:

Consumer and Commercial Division

Before:

P French, Senior Member

Decision:

(1) Pursuant to ss 136(2) and 150(1) of the Strata Schemes Management Act 2015 By-Law 29 of Strata Plan 87145 is declared invalid on and from 16 May 2018 being the date it was purportedly made.

(2) Before 1 July 2022, The Owners – Strata Plan 87145 must:

(a) obtain a certified copy of order 1 of these orders from the NCAT Registrar;

(b) lodge that certified copy of order 1 with the Registrar General NSW Land Registry Services;

(c) do all other things necessary to ensure that order 1 is recorded on the common property title of Strata Plan 87145.

(3) Any application for costs is to be made by 10 June 2022. Any such application is to be supported by submissions limited to not more than 5A pages in not less than 11 point font.

(4) Any reply to any application for costs is to be made by 24 June 2022. Any such reply is to be supported by submissions limited to not more than 5A pages in not less than 11 point font.

Catchwords:

LAND LAW — Strata title — By-laws —​​​​​​​ By-law levying on contributions contrary to s 83(2) —​​​​​​​ Ultra vires —​​​​​​​ Declaration of invalidity

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Strata Schemes Management Act 2015 (NSW)

Cases Cited:

The Owners Strata Plan No. 60919 v Consumer Trader and Tenancy Tribunal & Ors [2009] NSWSC 1158

The Owners – Strata Plan No 76830 v Byron Moon Pty Limited [2020] NSWCATAP 186

Texts Cited:

Nil

Category:

Principal judgment

Parties:

EKG Pastries Pty Ltd (Applicant)
The Owners – Strata Plan No. 87145 (Respondent)

Representation:

Bannermans Lawyers (Applicant)
Strata Specialist Lawyers (Respondent)

File Number(s):

SC 21/42016

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. This is an application by EKG Pastries Pty Ltd (the Lot Owner) for an order pursuant to ss 136(2) and 150(1) of the Strata Schemes Management Act 2015 (SSM Act) declaring by-law 29 of Strata Plan No 87145 to be invalid on the basis that The Owners – Strata Plan 87145 (the Owners Corporation) did not have the power to make that by-law. In the alternative, the Lot Owner applies for an order pursuant to ss 139(1) and 150(1), or in the further alternative s 232(1)(a), declaring that by-law 29 is invalid because it is harsh, unconscionable or oppressive. This application was made to the Tribunal on 7 October 2021 (the application).

2. For the reasons set out following, the Tribunal has concluded that by-law 29 is invalid on the basis that the Owners Corporation did not have power to make it, it being a purported exercise of power pursuant to s 136(1) that is contrary to the mandatory terms of…