Kentwell v The Owners Strata Plan No 2056

Kentwell brought proceedings against the Owners Strata Plan No 2056 in the Supreme Court of Queensland, challenging the validity of Special By-Law 31 of the Strata Plan. The By-law required owners of a unit within the strata plan to pay the costs of any repairs to the roof of the unit and the common property if the repairs were necessary due to damage caused by a leaking roof. The By-law also required the owner of the unit to pay for any damage caused to adjoining units and the common property. The dispute arose because Kentwell was required to pay for repairs to the roof of his unit and for damage caused to an adjoining unit. Kentwell argued that the By-law was harsh, unconscionable and oppressive, and therefore invalid under section 139(1) of the Strata Schemes Management Act 2015. The Owners Strata Plan No 2056 argued that the By-law was valid and enforceable. The court was required to determine whether the By-law was harsh, unconscionable or oppressive and therefore invalid under section 139(1) of the Act. The court was also required to determine whether the Tribunal had the power to declare the By-law invalid under section 150 of the Act.

The court held that the By-law was invalid because it was harsh, unconscionable and oppressive. The court found that the By-law placed an undue burden on owners of units within the strata plan, as it required them to pay for repairs to the roof of their unit and for damage caused to adjoining units and the common property. The court held that the By-law was therefore invalid under section 139(1) of the Act. The court also held that the Tribunal had the power to declare the By-law invalid under section 150 of the Act. The court declared the By-law to be invalid and ordered that the Owners Strata Plan No 2056 pay Kentwell’s costs of the proceeding. The court also made orders in respect of costs, requiring any application for costs to be filed and served within 14 days of the date of the orders, and any submissions or evidence in support of the application for costs to be filed and served within a further 14 days.