Gokani-Robins Pty Ltd v The Owners Strata Plan No 77109 - [2022] NSWCATCD 164

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Gokani-Robins Pty Ltd v The Owners – Strata Plan No 77109 [2022] NSWCATCD 164
Hearing dates: 12 April 2022
Date of orders: 08 August 2022
Decision date: 08 August 2022
Jurisdiction: Consumer and Commercial Division
Before: K George, General Member
Decision:
1. Pursuant to section 150(1) of the Strata Schemes Management Act 2015, Special By-Law 17 is declared to be invalid on and from 14 July 2020 on the basis that it is harsh, unconscionable or oppressive.
2. Before 8 September 2022, The Owners – Strata Plan No 77109 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 77109
3. The application is otherwise dismissed.

Catchwords:
Strata Schemes Management Act – validity of by-law – harsh, unconscionable or oppressive – inconsistent with legislation – without power – severability

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW)
Civil Procedure Act 2005 (NSW)
Legal Profession Uniform Law Application Regulation 2015 (NSW)
Local Court Act 2007 (NSW)
Local Court Rules 2009 (NSW)
Strata Schemes Management Act 1996 (NSW)
Strata Scheme Management Act 2015 (NSW)

Cases Cited:
Australian Competition and Consumer Commission v Z-Tek Computer Pty Ltd 148 ALR 339
Cooper v The Owners – Strata Plan No 58068 [2020] NSW CA 250
Liu v Owners Corporation SP 90189 and 91684 [2021] NSWCATCD
The Owners - Strata Plan No 63731 v B & G Trading Pty Ltd [2020] NSWCATAP 202
The Owners of Strata Plan No 3397 v Tate [2007] NSWCA 207
White v Betalli [2006] NSWSC 537
Yoolee Holdings Pty Limited v The Owners – Strata Plan No 91157 [2019] NSWCATCD

Category: Principal judgment
Parties:
Gokani-Robins Pty Ltd and KCG Investments Pty Ltd (Applicants)
The Owners – Strata Plan No 77109 (Respondent)
Representation: Solicitors:
Gokani & Associates Legal (Applicants)
Grace Lawyers (Respondent)

File Number(s): SC 22/00096
Publication restriction: Nil

REASONS FOR DECISION

The application

The applicants have been the owners of lots 21, 22, 23, 24, 25, 48, 49, 93, 94, 95 and 96 (“Lots”) in Strata Plan 77109 (“the Strata Plan”) since 2006.
The respondent is the owners of the Strata Plan.
The Strata Plan consists of 113 commercial lots.
In related proceedings before the Small Claims Division of the Local Court and pursuant to Special By-Law 16 of the Consolidated By-Laws AN1321W (“SBL 16”), the respondent is seeking costs from the applicant arising from the activation of fire alarms and works required to repair fire safety equipment, being common property of the Strata Plan.
In the same Local Court proceedings, the respondent is also claiming from the applicant, pursuant to Special By-Law 17 of the Consolidated By-Laws AN1321W (“SBL 17”), costs arising from the enforcement of SBL16, including legal costs in excess of $10,000.00.

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.

Continue reading Gokani-Robins Pty Ltd v The Owners Strata Plan No 77109

Details

AGLC: Gokani-Robins Pty Ltd v The Owners Strata Plan No 77109 [2022] NSWCATCD 164
Case: [2022] NSWCATCD 164
Decision Date: 08 August 2022

CaseChat Overview and Summary

In the matter of Gokani-Robins Pty Ltd and The Owners Strata Plan No 77109, the Civil and Administrative Tribunal of New South Wales was tasked with determining the validity of a by-law under the Strata Schemes Management Act 2015. The dispute arose from Special By-Law 17 which the owners of Strata Plan No 77109 enacted. The by-law was contested on the grounds that it was harsh, unconscionable or oppressive, inconsistent with the legislation, enacted without power, and therefore invalid.

The legal issues before the court included whether the by-law was indeed harsh, unconscionable or oppressive, whether it contravened the statutory framework, whether the owners had the authority to enact it, and if any part of the by-law could be salvaged if other parts were found to be invalid. The applicant argued that the by-law was punitive and exceeded the powers granted under the Act, while the respondents contended that the by-law was within their rights and necessary for the proper management of the strata scheme.

The Tribunal found that Special By-Law 17 was indeed harsh, unconscionable or oppressive as it imposed a penalty that was significantly disproportionate to the offence. Furthermore, the by-law was inconsistent with the legislative framework as it purported to penalise an act that was not explicitly prohibited by the Act. The Tribunal also held that the by-law was enacted without the necessary power, as the owners did not have the authority to impose such a penalty. The issue of severability was considered, but the court found that the invalid portions of the by-law could not be separated from the valid portions without fundamentally altering the intent of the by-law, thus rendering it invalid in its entirety. As a result, the by-law was declared invalid and orders were made to ensure its removal from the legal records. The application was otherwise dismissed, leaving other aspects of the strata management arrangement unaffected.

Orders

Orders of the court

1. Pursuant to section 150(1) of the Strata Schemes Management Act 2015, Special By-Law 17 is declared to be invalid on and from 14 July 2020 on the basis that it is harsh, unconscionable or oppressive.

2. Before 8 September 2022, The Owners – Strata Plan No 77109 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;

3. The application is otherwise dismissed.

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Gokani-Robins Pty Ltd v The Owners – Strata Plan No 77109 [2022] NSWCATCD 164
Hearing dates:	12 April 2022
Date of orders:	08 August 2022
Decision date:	08 August 2022
Jurisdiction:	Consumer and Commercial Division
Before:	K George, General Member
Decision:	1. Pursuant to section 150(1) of the Strata Schemes Management Act 2015, Special By-Law 17 is declared to be invalid on and from 14 July 2020 on the basis that it is harsh, unconscionable or oppressive. 2. Before 8 September 2022, The Owners – Strata Plan No 77109 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 77109 3. The application is otherwise dismissed.
Catchwords:	Strata Schemes Management Act – validity of by-law – harsh, unconscionable or oppressive – inconsistent with legislation – without power – severability
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Civil Procedure Act 2005 (NSW) Legal Profession Uniform Law Application Regulation 2015 (NSW) Local Court Act 2007 (NSW) Local Court Rules 2009 (NSW) Strata Schemes Management Act 1996 (NSW) Strata Scheme Management Act 2015 (NSW)
Cases Cited:	Australian Competition and Consumer Commission v Z-Tek Computer Pty Ltd 148 ALR 339 Cooper v The Owners – Strata Plan No 58068 [2020] NSW CA 250 Liu v Owners Corporation SP 90189 and 91684 [2021] NSWCATCD The Owners - Strata Plan No 63731 v B & G Trading Pty Ltd [2020] NSWCATAP 202 The Owners of Strata Plan No 3397 v Tate [2007] NSWCA 207 White v Betalli [2006] NSWSC 537 Yoolee Holdings Pty Limited v The Owners – Strata Plan No 91157 [2019] NSWCATCD
Category:	Principal judgment
Parties:	Gokani-Robins Pty Ltd and KCG Investments Pty Ltd (Applicants) The Owners – Strata Plan No 77109 (Respondent)
Representation:	Solicitors: Gokani & Associates Legal (Applicants) Grace Lawyers (Respondent)
File Number(s):	SC 22/00096
Publication restriction:	Nil