Knight v The Owners Strata Plan 208 - [2022] NSWCATCD 170

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Knight v The Owners - Strata Plan 208 [2022] NSWCATCD 170
Hearing dates: 7 June 2022
Date of orders: 20 July 2022
Decision date: 20 July 2022
Jurisdiction: Consumer and Commercial Division
Before: G Ellis SC, Senior Member
Decision:
1. Pursuant to s 149(1) of the Strata Schemes Management Act 2015, the Tribunal makes the common property rights by-law tabled by the applicants at the meeting of the first respondent held on 4 November 2021.
2. Pursuant to s 246 Strata Schemes Management Act 2015, within 28 days (ie on or before 17 August 2022) the first respondent is to do all things necessary to register that by-law.
3. Any submissions in support of an application for costs (not exceeding five pages), together with any supporting evidence, are to be filed and served by 3 August 2022.
4. Any submissions in response to any such application (not exceeding five pages), together with any supporting evidence, are to be filed and served by 17 August 2022.
5. Any submissions in reply (not exceeding two pages) are to be filed and served by 24 August 2022.
6. Any such submissions should indicate whether the party accepts that costs should be determined on the papers, ie without the need for a further hearing.

Catchwords:
LAND LAW - Strata title - Whether proposed by-law
unreasonably refused

Legislation Cited:
Strata Schemes Management Act 2015

Cases Cited:
Beckett v The Owners – Strata Plan No 74637 [2020] NSWCATCD
Bruce v Knight [2021] NSWCATAP 225
Capcelea v The Owners Strata Plan No 48887 [2019] NSWCATCD 27
Endre v The Owners – Strata Plan No 17771 [2019] NSWCATAP 93
Gelder v The Owners – Strata Plan No. 38308 [2020] NSWCATAP 227
Macey’s Group Pty Ltd v The Owners – Strata Plan No 33591 [2021] NSWCATAP 7
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
Mitchell v Cullingral Pty Ltd [2012] NSWCA 389
The Owners – Strata Plan No 12289 v Donaldson [2019] NSWCATAP 213
The Owners – Strata Plan No 69140 v Drewe [2017] NSWSC 845

Category: Principal judgment
Parties: Alexander Knight, Cleo Knight (Applicants)
The Owners – Strata Plan 208 (First Respondent)
Anthony Bruce (Second Respondent)
Liza Rybak (Third Respondent)
Stephen Nash (Fourth Respondent)
Representation:
Strata Title Lawyers (Applicants)

First Respondent – no appearance
Sachs Gerace Lawyers (Second, Third and Fourth Respondents)

File Number(s): SC 21/51950
Publication restriction: Nil

REASONS FOR DECISION

Outline

The applicants sought an order under s 149 of the Strata Schemes Management Act 2015 (SSMA) for the Tribunal to make a common property rights by-law which was alleged to have been unreasonably refused, and an order under s 246 for the registration of that by-law. As the owners corporation did not participate in the proceedings, it is convenient to refer to the second, third and fourth respondents as the respondents.
After considering the evidence and submissions of the parties, the Tribunal determined that:

It was not necessary to consider whether…

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.

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Details

Case: [2022] NSWCATCD 170
Decision Date: 20 July 2022

CaseChat Overview and Summary

The applicants, Mr Knight and Mrs Knight, sought orders to compel the Owners Corporation of Strata Plan 208 to register a proposed common property rights by-law. This decision arose in the Tribunal, under the Strata Schemes Management Act 2015, and involved disputes about the management and governance of the strata scheme.

The central legal issue before the Tribunal was whether the refusal by the Owners Corporation to register the proposed by-law was unreasonable. The applicants argued that the Owners Corporation's refusal was arbitrary and not in line with the requirements of the Act. They contended that the by-law was reasonable, necessary, and in the best interest of the strata scheme. The Owners Corporation, on the other hand, argued that the proposed by-law was not in the best interest of the strata scheme and that its refusal was reasonable and justified.

The Tribunal found that the Owners Corporation's refusal to register the proposed by-law was unreasonable. The Tribunal considered the evidence and submissions from both parties and concluded that the proposed by-law was reasonable, necessary, and in the best interest of the strata scheme. The Tribunal also found that the Owners Corporation's refusal was not based on any valid or reasonable grounds and was therefore unreasonable. The Tribunal ordered that the proposed by-law be registered and that the Owners Corporation take all necessary steps to do so within 28 days.

The Tribunal also made orders regarding the costs of the application, including the filing and serving of submissions and evidence. The applicants were required to file and serve their submissions in support of an application for costs by 3 August 2022, while the Owners Corporation had until 17 August 2022 to file and serve any submissions in response. Any submissions in reply were to be filed and served by 24 August 2022. The Tribunal also noted that any party could indicate whether they accepted that the costs should be determined on the papers, without the need for a further hearing.

Orders

Orders of the court

1. Pursuant to s 149(1) of the Strata Schemes Management Act 2015, the Tribunal makes the common property rights by-law tabled by the applicants at the meeting of the first respondent held on 4 November 2021.

2. Pursuant to s 246 Strata Schemes Management Act 2015, within 28 days (ie on or before 17 August 2022) the first respondent is to do all things necessary to register that by-law.

3. Any submissions in support of an application for costs (not exceeding five pages), together with any supporting evidence, are to be filed and served by 3 August 2022.

4. Any submissions in response to any such application (not exceeding five pages), together with any supporting evidence, are to be filed and served by 17 August 2022.

5. Any submissions in reply (not exceeding two pages) are to be filed and served by 24 August 2022.

6. Any such submissions should indicate whether the party accepts that costs should be determined on the papers, ie without the need for a further hearing.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Knight v The Owners - Strata Plan 208 [2022] NSWCATCD 170
Hearing dates:	7 June 2022
Date of orders:	20 July 2022
Decision date:	20 July 2022
Jurisdiction:	Consumer and Commercial Division
Before:	G Ellis SC, Senior Member
Decision:	1. Pursuant to s 149(1) of the Strata Schemes Management Act 2015, the Tribunal makes the common property rights by-law tabled by the applicants at the meeting of the first respondent held on 4 November 2021. 2. Pursuant to s 246 Strata Schemes Management Act 2015, within 28 days (ie on or before 17 August 2022) the first respondent is to do all things necessary to register that by-law. 3. Any submissions in support of an application for costs (not exceeding five pages), together with any supporting evidence, are to be filed and served by 3 August 2022. 4. Any submissions in response to any such application (not exceeding five pages), together with any supporting evidence, are to be filed and served by 17 August 2022. 5. Any submissions in reply (not exceeding two pages) are to be filed and served by 24 August 2022. 6. Any such submissions should indicate whether the party accepts that costs should be determined on the papers, ie without the need for a further hearing.
Catchwords:	LAND LAW - Strata title - Whether proposed by-law unreasonably refused
Legislation Cited:	Strata Schemes Management Act 2015
Cases Cited:	Beckett v The Owners – Strata Plan No 74637 [2020] NSWCATCD Bruce v Knight [2021] NSWCATAP 225 Capcelea v The Owners Strata Plan No 48887 [2019] NSWCATCD 27 Endre v The Owners – Strata Plan No 17771 [2019] NSWCATAP 93 Gelder v The Owners – Strata Plan No. 38308 [2020] NSWCATAP 227 Macey’s Group Pty Ltd v The Owners – Strata Plan No 33591 [2021] NSWCATAP 7 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 The Owners – Strata Plan No 12289 v Donaldson [2019] NSWCATAP 213 The Owners – Strata Plan No 69140 v Drewe [2017] NSWSC 845
Category:	Principal judgment
Parties:	Alexander Knight, Cleo Knight (Applicants) The Owners – Strata Plan 208 (First Respondent) Anthony Bruce (Second Respondent) Liza Rybak (Third Respondent) Stephen Nash (Fourth Respondent)
Representation:	Strata Title Lawyers (Applicants) First Respondent – no appearance Sachs Gerace Lawyers (Second, Third and Fourth Respondents)
File Number(s):	SC 21/51950
Publication restriction:	Nil