Kentwell v The Owners Strata Plan No 2056

[2025] NSWCATCD 96

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Kentwell v The Owners Strata Plan No 2056 [2025] NSWCATCD 96

Hearing dates:

26 March 2025

Date of orders:

14 July 2025

Decision date:

14 July 2025

Jurisdiction:

Consumer and Commercial Division

Before:

H Woods, Senior Member

Decision:

(1) Pursuant to section 150(1) of the Strata Schemes Management Act 2015, Special By Law 31 of Strata Plan No 2056 is declared to be invalid.

(2)   In respect of costs:

(a)   Any application for costs including submissions and any evidence in support of the application for costs are to be filed and served within 14 days of the date of these orders.

(b)   Any submissions or evidence in response are to be filed and served within a further 14 days.

(c)   Any submissions in respect of costs are to state whether the party consents to the question of costs being determined on the papers, and if not why.

(d)   If there is no application for costs, then there will be no order as to costs, which the intent that each party pay its own costs.

Catchwords:

LAND LAW — Strata title — By-laws

STRATA LAW – validity of by-law – s 139(1) Strata Schemes Management Act 2015 (SSMA), by-law must not be harsh, unconscionable or oppressive – S 150 (power of Tribunal to declare by-law invalid) –

Legislation Cited:

Strata Schemes Management Act 2015 (NSW)

Cases Cited:

Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250

The Owners Strata Plan No. 77109 v Gokani Robins Pty Ltd [2023] NSWCATAP 82 (24 March 2023)

The Owners of Strata Plan No 3397 v Tate [2007] NSWCA 207

The Owners Strata Plan No 2245 v Veney [2020] NSWSC 134

Hunt v The Owners - Strata Plan No 1158/84199 [2024] NSWCATAP 65

Gokani-Robins Pty Ltd v The Owners – Strata Plan No 77109 [2025] NSWCATAP 107

Category:

Principal judgment

Parties:

Philip Kentwell and Dorathy Kentwell (Applicants)
The Owners – Strata Plan No. 2056 (Respondent)

Representation:

Counsel:
B. Haines (Applicant)

Solicitors:
Kerin Benson Lawyers (Applicant)
Self-represented – M. Rennie (Respondent)

File Number(s):

2024/00467414

Publication restriction:

Nil

REASONS FOR DECISION

INTRODUCTION

1. The proceedings concern a dispute as to whether a by - law, being Special By Law 31 (SBL 31) which concerns communications between, amongst others, lot owners, the strata committee and the strata manager of Strata Plan No 2956 (the Strata Scheme) should be declared invalid pursuant to s 150 (1) of the Strata Schemes Management Act 2015 (NSW) (SSMA) because it is harsh, unconscionable or oppressive.

2. The applicant alternatively:

1. relies on s 148 of the SSMA to seek an order that SBL 31 be repealed, or

2. s 136 of the SSMA, to contend that SBL 31 was beyond power because it was not made in relation to the management, administration, control, use or enjoyment of the lots or the common property of the Strata Scheme and should be declared invalid pursuant to s 150 of the SSMA.

3. The alternative claim that the respondent did not have the power to make SBL 31 was made in the Amended Annexure to the Application (Amended Application) filed on 18 March 2026 and which I granted leave to the Applicant’s to rely on.

4. The dispute arises in the context of the respondent having put in place SBL 31 to deal with what it refers to as “excessive” and “nuisance” communications, primarily emails, sent by the applicants to members of the strata committee and the strata manager of the Strata Scheme.

5. For the reasons set out below, I am satisfied that SBL 31 is harsh, unconscionable or oppressive and will make a declaration to that effect.

DOCUMENTS RELIED ON BY THE PARTIES AT THE HEARING

6. Most of the documents relied on by the parties were included in a Court Book filed by the Applicant on 6 March 2025.

7. The applicants relied on the following documents:

1. Application filed 16 December 2024.

2. Annexures A ‘Points of Claim’, and B ‘SBL 31’ to the Application.

3. Affidavit of Phillip Kentwell filed 3 March 2025.

4. Amended Application filed 18 March 2025.

5. A bundle of document filed 25 March 2025 comprising:

1. a Title Search showing the applicants as the owners of lot 6 in the Strata Scheme; and

2. the Consolidated By Laws of the Strata Scheme as of 12 July 2024.

6. Written Submissions dated 25 March 2025.

8. The respondent relied on the following documents which had been filed as part of an indexed bundle on 10 February 2025:

1. Owners Corporation summary.

2. Copies of two authorities of the Queensland Body Corporate and Community Management Commissioner.

3. An email from Mary Anne Rennie of the Strata Committee to Phillip Kentwell taking issue with what Ms Rennie refers to as 75 emails having been received from Mr Kentwell since 27 July 2023 and 12 so far in February 2024.

4. Minutes of an extraordinary general meeting held on 24 June 2024.

5. An application filed by the Applicants in September 2024.

6. An email from the strata manager for the Strata Scheme dated 8 May 2024.

7. Minutes of an extraordinary general meeting held on 22 October 2024.

8. Copies po Fair Trading and Tribunal records in respect of these proceedings.

BACKGROUND TO AND SUMMARY OF THE APPLICANTS’ CLAIM

9. The Strata Scheme is a six lot strata scheme.

10. The applicants own lot 6 in the Strata Scheme.

11. SBL 31, headed “Communication Protocol (passed 24 June 2024)” was made following a special resolution unanimously passed at an extraordinary general meeting on 24 June 2024 (the 24 June 2024 EGM)

12. The minutes of the 24 June 2024 EGM record:

1. that the owners of all 6 lots in the Strata Scheme, including the applicants, attended the 24 June 2024 EGM; and

2. relevant to SBL 31:

7 Special By Law – Excessive and nuisance communication

SPECIALLY RESOLVED THAT the owners corporation SPECIALLY RESOLVES pursuant to Section 141 of the Strata Schemes Management Act 2015 to make an additional by law in the following terms and have it registered. Please refer to [the] attached for terms

VOTES BASED ON UNIT OF ENTITLEMENTS- YES - 824 NO - 00 ABSTAIN - 00

13. SBL 31 is set out at pages 21 to 24 of the Consolidated By Laws and includes the following subparagraphs and headings:

1. 31.1 contains definitions, which include:

(c) “Communication” means all written or verbal communications including but not limited to: (i) emails; (ii) telephone calls; (iii) letters; (iv) text or audio messages; (v) facsimiles; (vi) face to face communications including in meetings and via video link.

(d) “Enforcement Costs” means the costs associated with the enforcement of this by-law, including but not limited to the cost to the Owners Corporation of engaging professional services, including legal and strata management service.

(i) “Recipient” means: (i) an Owner [of a lot in the Strata Scheme]; (ii) an Occupier [of a lot in the Strata Scheme]; (iii) a member of the [strata committee elected by the Owners Corporation]; (iv) the strata manager [ engaged by the Owners Corporation]; or (v) a third party engaged by, employed by, under the instruction of or otherwise representing the Owners Corporation who receives a “Communication” from a Sender.

(j) “Sender” means: (i) an Owner [of a lot in the Strata Scheme]; (ii) an Occupier [of a lot in the Strata Scheme]; (iii) a member of the [strata committee elected by the Owners Corporation]; (iv) the strata manager [ engaged by the Owners Corporation]; or (v) a third party engaged by, employed by, under the instruction of or otherwise representing the Owners Corporation who sends a “Communication” to a Recipient.

2. 31.2 - “Purpose of this by-law” states:

The purpose of this by law is to establish a procedure and standard for Senders and recipients to follow when sending or receiving communications. This is to ensure that all Communications are handled efficiently and to minimise the impact on the Owners Corporation’s and Strata management Resources.

3. 31.3 to 31.5 - “Communication Protocol”, state:

31.3 Communication from a Sender to a Recipient must at all times be: (a) polite; (b) respectful; (c)reasonable; (d) appropriate; (e) constructive; and (f) succinct

31.4 Communication from a Sender to a Recipient must not: (a) be abusive, offensive or threatening; (b) unnecessarily voluminous or lengthy; (c) contain false statements or allegations unsupported by evidence or specific detail; (d) be defamatory; (e) be aggressive; (f) be unnecessarily repetitive; (g) be rude or insulting; (h) be a nuisance; or (i) contain personal insults or invective

31.5 Communications should comply with a standard business protocol and / or accord with what an ordinary person would view as a reasonable level and content of business communication.

4. 31.6 to 31.7 - “Disregarding non – compliant Communication”, provides that in the event a Recipient reasonably considers that a Communication does not comply with the terms of SBL 31, the Recipient, may, in their discretion, disregard or not respond to the Communication or issue to the Sender a response notifying the Sender of their concern.

5. 31.8 - “Owners Corporation’s statutory responsibility” states:

The Owners Corporation will at all times recognise its overriding obligation to comply with its statutory responsibilities and duty to address any genuine or potentially genuine issues or concerns that are raised in a Communication.

6. 31.9 - “No Obligation to acknowledge receipt” states:

Recipients are not required to acknowledge receipt of a communication, regardless of content.

7. 31.10 and 31.11 - “Sender’s options” states:

31.10 If a sender is not satisfied that their Communication has been properly responded to by a recipient, rather than re-sending their Communication, they are required to submit a motion for inclusion of the agenda of the next general meeting of the Owners Corporation, proposing action on the issue the subject of the Communication. The general meeting motion should state the specific action the Sender wants the Recipient to take to address the issue.

31.11 Where that action involves costs being incurred (for example, to engage a qualified expert to obtain a report or to engage a contractor to undertake rectification work), the Sender should obtain and provide appropriate quotes and specify a motion to accept those quotes.

8. 31.12 - “Recovery of Enforcement Costs” states:

An Owner in breach of this by-law is responsible for and will bear all Enforcement Costs. An Owner is also responsible for Enforcement Costs incurred as a result of their occupier’s breach of this by-law. Enforcement Costs may be charged to the Owner’s lot account as if they were a contribution under the Act, with all associated rights of recovery under the Act.

9. 31.13 – “Access to strata committee members” states:

Access to members of the strata committee on body corporate matters can only be made by email to the strata committee group email distribution list or via the strata manager.

14. At an extraordinary general meeting of the Strata Scheme held on 22 October 2024 (22 October 2024 EGM), a motion moved by the applicants for the repeal of SBL 31 was defeated.

15. The minutes of the 22 October 2024 EGM record:

21 Repeal of [SBL31] (SPECIAL RESOLUTION) - Moved by lot 6

THE MOTION, that The Owners - Strata Plan No. 2056 repeal [DBL 31], Moved by lot 6, Philip and Dorathy Kentwell, “WAS DEFEATED”.

Unit Entitlement – FOR: 524

Unit Entitlement – AGAINST: 150.

16. The applicant’s now seek an order that SBL 31 be declared invalid.

THE STRATA SCHEMES MANAGEMENT ACT 2015 (NSW), JURISDICTION & ISSUES

17. By-laws, their making and their operation is regulated by Part 7 of the SSMA.

18. Subsection 136(1) of the SSMA provides an owners corporation with a wide power to make by-laws “in relation to the management, administration, control, use or enjoyment of the lots or the common property and lots of a strata scheme”. It states:

(1) By-laws may be made in relation to the management, administration, control, use or enjoyment of the lots or the common property and lots of a strata scheme.

(2) A by-law has no force or effect to the extent that it is inconsistent with this or any other Act or law.

19. In Cooper v The Owners – Strata Plan No 58068 (2020)103 NSWLR 160; [2020] NSWCA 250 (Cooper), Basten JA considered the extent of the power granted to make by-laws. At [61] His Honour said:

“To adopt the language of senior counsel for the applicants, a by-law which restricts the lawful use of each lot, but on a basis which lacks a rational connection with the enjoyment of other lots and the common property, is beyond the power to make by-laws conferred by s 136.”

20. Subsection 139(1) of the SSMA provides that a bylaw must not be harsh, unconscionable or oppressive and “Notes” that any such by-law may be invalidated by the Tribunal (see section 150).

21. Section 150 of the SSMA states:

(1) The Tribunal may, on the application of a person entitled to vote on the motion to make a by-law or the lessor of a leasehold strata scheme, make an order declaring a by-law to be invalid if the Tribunal considers that an owners corporation did not have the power to make the by-law or that the by-law is harsh, unconscionable or oppressive.

….

(3) An order under this section operates on and from the date on which it is so recorded or from an earlier date specified in the order.

22. By their amended application, the applicants:

1. Contend that SBL 31 is harsh, unconscionable or oppressive and seek:

1. an order pursuant to s 150 of the SSMA that SBL 31 is invalid, or

2. alternatively, for that SBL 31 to be repealed pursuant to s 148 of the SSMA.

2. Alternatively, seek a declaration that SBL is invalid because the making of SBL 31 was beyond the power under s 136 of the SSMA for the respondent to make by-laws in respect of the management, administration, control, use or enjoyment of the lots or the common property.

23. The respondent, in summary contends that SBL 31 became necessary because of what it refers to an excessive number of emails sent by the applicants to members of the respondent’s strata committee and strata manager and that it requires a by law to the effect of SBL 31 to be able stop the type of communications complained of.

24. Having regard to s 150 (1), the applicants, as persons entitled to vote on the motion to make SBL 31, have standing to make this application, and there is no dispute that the Tribunal has jurisdiction to determine the Application.

25. I am therefore satisfied that the applicants have standing to make, and the Tribunal has jurisdiction to hear and determine the Application.

26. The matters for consideration include:

1. Whether SBL 31 is harsh, unconscionable or oppressive and ought to be declared invalid pursuant to s150 of the SSMA or repealed pursuant to s 148.

2. Otherwise, whether SBL 31 is beyond the power of the respondent to make by-laws because it is not in relation to the management, administration, control, use or enjoyment of the lots of the common property.

RELEVANT PRINCIPLES

27. As noted above, the applicants seek that SBL 31 be declared invalid because it is harsh, unconscionable or oppressive and in the alternative, because it is beyond power.

28. The words “harsh, unconscionable or oppressive” were considered by the Court of Appeal in Cooper and the Appeal Panel in The Owners Strata Plan No. 77109 v Gokani Robins Pty Ltd [2023] NSWCATAP 82 (24 March 2023) (Gokani).

29. Having regard to those decisions:

1. The test of compliance with s 139(1) should be approached objectively: Basten JA in Cooper at [23].

2. The phrase “harsh, unconscionable or oppressive,” is better understood as a triune, three words conveying a single criterion which is at the other end of the scale of “just and equitable” and invokes the application of values, the content of which derives no elucidation from reference to synonyms, nor from a supposed differentiation from other similar words such as “unjust”: (Basten JA in Cooper at [26]).

3. Section 139 (1) focuses on the character of the by-law: Basten JA in Cooper at [45].

4. A by-law may be harsh, unconscionable or oppressive where it imposes a restriction that “could not on any rational view enhance or be needed to preserve the other lot owners’ enjoyment of their lots and the scheme common property”: McFarlan JA in Cooper at [78].

5. The words “harsh, unconscionable or oppressive” are grouped disjunctively in s 139(1) and the sub-section is breached if any one of them is applicable to the by-law in question, and as the words appear in a composite expression, each of them is to be considered for any contribution that it may make to the interpretation of the others: Fagan JA in Cooper at [90].

6. A by-law may be oppressive because it prohibits an aspect of the use of lots in a strata scheme that is an ordinary incident of ownership of real property, and where the prohibition provides no material benefit to other occupiers of the building in the use of enjoyment of the lots of a common property: (Fagan JA in Cooper at [90] to [94]).

7. Whether a bylaw is harsh, unconscionable or oppressive requires a consideration of its terms in the manner in which it operates: Gokani at [61].

8. In considering whether a by-law is harsh, unconscionable or oppressive, the Tribunal is required to look at its terms, and the Tribunal’s role is not to rewrite the by law and the fact that it may some circumstances operate fairly, cannot save it from invalidity: MacFarlan JA in Cooper at [81] and Gokani at [71].

30. The principles concerning the construction of by-laws were summarised by the Court of Appeal inThe Owners of Strata Plan No 3397 v Tate [2007] NSWCA 207 at [71] as follows:

1. By-laws are the “series of enactments” by which the proprietors in a body corporate administer their affairs; they do not deal with commercial rights, but the governance of the strata scheme….

2. By-laws have a public purpose which goes beyond their function of facilitating the internal administration of a body corporate; …;

3. Exclusive use by-laws may be inspected by third persons interested in acquiring an interest in a strata scheme, whether, for example, by acquiring units, or by lending money to a lot proprietor; such persons would ordinarily have no access to the circumstances surrounding their making; their meaning should be understood from their statutory context and language….

4. By-laws may be characterised as either delegated legislation or statutory contacts…;

5. Whichever be the appropriate characterisation, exclusive use by-laws should be interpreted objectively by what they would convey to a reasonable person…;

6. In interpreting exclusive use by-laws, the Court should take into account their constitutional function in the strata scheme in regulating the rights and liabilities of lot proprietors...

7. Unlike the articles of a company, there does not appear to be a strong argument for saying exclusive use by-laws should be interpreted as a business document, with the intention that they be given business efficacy: cf NRMA (at [75]). That does not mean that an exclusive use by-law may not have a commercial purpose, …, but due regard must be paid to the statutory context in so doing;

8. An exclusive use by-law should be construed so that it is consistent with its statutory context; a court may depart from such a construction if departure from the statutory scheme is authorised by the governing statute and if the intention to do so appears plainly from the terms of the by-law…

9. Caution should be exercised in going beyond the language of the by-law and its statutory context to ascertain its meaning; a tight rein should be kept on having recourse to surrounding circumstances ….

31. In The Owners Strata Plan No 2245 v Veney [2020] NSWSC 134 (Viney), Darke J after referring to the above extract from the Court of Appeal’s decision in Tate, said:

[32]   … it appears that in ascertaining the meaning of Special By-Law 4, it is necessary to consider the language of the by-law, viewed in the statutory context in which it was made; and whilst recourse to surrounding circumstances may be permissible as an aid to construction it is necessary, particularly bearing in mind the public purpose of strata scheme by-laws, to exercise caution in going beyond the language of the by-law itself and its statutory context.

32. In Hunt v The Owners - Strata Plan No 1158/84199 [2024] NSWCATAP 65, the Appeal Panel, after referring to the decisions of Tate and Viney, further observed:

35. It can be seen from these decisions that the extent of any enquiry into surrounding circumstances for the purpose of construing the by-law would, ordinarily, be limited to the particular resolution and material (including any explanatory memorandum in support of the resolution) by which the by-law in question was adopted. In this regard, principle 3 in Tate, which recognises by-laws may be inspected by those acquiring an interest in the property, would make it inappropriate in any interpretive exercise for a broader enquiry into matters which would not be evident from the records concerning the making of a by-law.

36. Of course, these principles of interpretation are not a means by which a by-law, which is clear in its meaning having regard to the words used and the objective meaning, can effectively be rewritten. Rather, they are an aid to interpretation where the meaning is unclear.

37. Having regard to the above, in our view there was no basis for the Tribunal to have regard to historical circumstances leading up to the making of SBL 5. Rather, as was the approach of the Tribunal, it is necessary to consider the words of the by-law and determine their objective meaning.

33. In Gokani-Robins Pty Ltd v The Owners – Strata Plan No 77109 [2025] NSWCATAP 107, the Appeal Panel, at [140] accepted that the principals applicable to the interpretation of by-laws of a strata scheme are those set out by McColl JA in Tate.

CONSIDERATION

34. Once the proper construction of the by-law is considered, it is then necessary to decide whether it is “harsh, unconscionable or oppressive” within s 150(1) of the SSMA.

35. Having regard to its heading and subclause 2 headed “Purpose of this by-law”, SBL 31:

1. is concerned with establishing a “protocol” or “procedure and standard” to be followed by an owner or an occupier of a lot in the Strata Scheme, a member of the strata committee, the strata manager or a third party engaged by the respondent, when communicating with each other, and

2. is intended to ensure that all communications are handled efficiently and to minimise the impact on the respondent’s resources.

36. Having regard to the authorities, the respondent’s subjective intention to put in place a process to deal with what it viewed as excessive and unnecessary emails from the applicants to the strata committee is not relevant to a consideration of the proper construction of SBL 31.

37. Nor is the applicants’ subjective reasoning as to why they voted in favour of the by-law or their concerns as to how it may operate in the future.

38. Further, although I have some sympathy for the respondent, having regard to the authorities, the fact that SBL 31 was approved at the 24 June 2024 by all lot owners including the applicants, is not relevant to a consideration of whether the by-law is harsh, oppressive or unconscionable. Although, it might be relevant to a question of discretion.

39. Having regard to the words of SBL 31 and their objective meaning, SBL 31 operates in the following way:

1. A Recipient of a “Communication” (for instance a strata manager or strata committee), may, in its discretion, disregard or not respond to the communication or issue a response to the effect that the communication does not comply with SBL 31, if it reasonably considers that the communication:

1. is not polite, respectful, reasonable, appropriate, constructive or succinct; or

2. is abusive, offensive or threatening, unnecessarily voluminous or lengthy, or contains false statements or allegations unsupported by evidence or specific detail, or is defamatory, aggressive, unnecessarily repetitive, rude or insulting, a nuisance or contains personal insults or invective; or

3. does not comply with a standard business protocol and/or what ordinary person would view as a reasonable level and content of business communication.

2. If a sender is not satisfied that a communication has been properly responded to by a recipient, rather than resending the communication, they are required to submit a motion for inclusion in the agenda of the next general meeting of the owners corporation proposing action on the issue the subject of the communication.

3. Where that action involves work to be performed and costs being incurred, the sender is to obtain and provide quotes and specify a motion to accept those quotes.

4. Without determining how a breach of the bylaw is to be determined, an Owner (but presumably not a strata manager or strata committee member) that is in breach of the bylaw is responsible for and will bear all enforcement costs incurred as a result of the breach.

40. The applicants contend that the SBL 31 is harsh, uncomfortable or oppressive for the eight reasons set out at paragraph 38 to 49 of their submission.

41. I have considered those submissions mindful also that relevant to the definition of Sender and Recipient including a member of the strata committee and the strata manager, that s 43 of the SSMA provides that that the functions of a secretary of an owners corporation include answering communications addressed to the owners corporation and SBL 31.8 provides that the Owners Corporation will at all times recognise its overriding obligation to comply with its statutory responsibilities and duty to address any genuine or potentially genuine issues or concerns that are raised in a Communication.

42. In respect of the two authorities relied on by the respondent, although possibly informative:

1. They are not binding on the Tribunal, and in any event;

2. They are not relevant to what I have to decide in circumstances where:

1. Tank Tower [2015] QBCCMCmr 322 is concerned with whether a lot owner breached a by-law that simply provided “Owners and occupiers must communicate with the Committee in a reasonable manner and not in a way which may become an annoyance or a nuisance to any Committee member;”; and

2. Deagon Village [2018] QBCCMCmr 20 involved an application for a lot owner to comply with a by-law with respect to noise and whether an order ought to be made regulating communications from the lot owner to the relevant body corporate without reference to a by-law.

43. Having regard to the applicants’ submissions and having considered the documents relied on by the respondent (including the two authorities of the Queensland body Corporate and Community Commissioner) and the further oral submissions made on behalf of the respondent, for the reasons set out below I am satisfied that the bylaw is harsh, uncomfortable or oppressive for the following reasons.

44. SBL 31 operates in a way that:

1. allows, for example, the strata manager or the strata committee, at its discretion, to disregard or not respond to a communication (for instance an email) from an owner, or respond to the effect that it believes that the communication does not comply with the communications protocol, (with no delineation between for instance, whether a communication is in respect of an urgent matter) where the strata manager or the strata committee (as the recipient) reasonably considers that the communication:

1. is not polite, respectful, reasonable, appropriate, constructive or succinct or is unnecessarily voluminous or lengthy or is unnecessarily repetitive, or

2. does not comply with standard business protocol or what an ordinary person would view as a reasonable level and content of business communication; but

2. provides that owner cannot resubmit the email but must submit a motion for inclusion of the agenda at the next general meeting of the owners corporation proposing action on the issue, the subject of the communication.

45. That means that the sender of a communication could be left not knowing if a view was held that the communication did not comply with the protocol, and if so why, but is prohibited from re submitting the communication and requires them to prepare a motion for the next meeting of the owners corporation, whenever that may be.

46. The difficulty then arises because the issue may be an urgent matter, but the communication cannot be re sent ( even if the reasonable belief of a breach was a minor matter that could be remedied by a further communication) because that would be in breach of 31.10 and make the sender liable for enforcement costs pursuant to 31.12.

47. The effect of such an operation is that an owner with no intention not to be polite, reasonable or respectful, appropriate, constructive or succinct, communicates with the strata manager or owners corporation in respect of a matter that may be of some urgency, but having not received a reply, is left with no option but to prepare a motion for the next meeting, whenever that may be, not even knowing why their communication has not been responded to.

48. In my view it also operates in a way that is harsh and oppressive because it then forces the owner in such a situation to prepare motion and if relevant, obtain quotes in the absence of any understanding as to whether there is any issue with the substance of what is sought in the communication that may not have been responded to or whether the lack of response is for example, because the recipient reasonably believed that the communication was not polite or succinct or did not comply with standard business protocol.

49. In short, my finding that SBL 31 is harsh, oppressive or unconscionable is not because it seeks to regulate how, for example owners, the strata manager and the strata committee are to communicate with each other in respect of matters relevant to the Strata Scheme, but because of how it operates in the event that a recipient takes a reasonable (but possibly arbitrary) view (without informing the sender of that view) that a communication was, for instance, not polite, succinct or in accordance standard business protocol.

50. It follows that there is likely to be circumstances where the by-law may operate fairly, and subject to amendments, it may operate in a way that is not harsh, unconscionable or oppressive, but as noted above, it is not the Tribunal’s role to rewrite the by-law and the fact that the by-law may in some circumstances operate fairly, cannot save it from invalidity: MacFarlan JA in Cooper at [81] and Gokani at [71].

51. For the above reasons I will declare that the by-law is invalid.

52. Neither party made submissions as to when that declaration should take effect. Mindful of a 150 (3) of the SSMA, the order declaring the by-law to be invalid will operate on and from the date on which it is recorded.

53. In respect of the applicant’s alternative claim, being to the effect that SBL 31 was beyond power, although it seems to me on a provisional view, that the making of a bylaw to govern communications, for instance between owners, the strata committee and strata manager, would be in relation to the management, administration, control, use or enjoyment of lots or the common property and the lots of the strata scheme, mindful that I am satisfied that the bylaw is harsh, unconscionable or oppressive for the reasons set out above, I do not propose to determine whether on the applicants alternative claim, the by- law is otherwise beyond power.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 10 October 2025