Mackinnon v Greenway; Greenway v The Owners Strata Plan No 49770

The proceedings in the Civil and Administrative Tribunal involved two separate applications. The first, SC 20/12439, was brought by the respondent in SC 20/26307, Mr Greenway, seeking to have a declaration that certain by-laws were harsh, unconscionable and oppressive set aside. The second, SC 20/26307, was brought by Ms Mackinnon, seeking a declaration that the same by-laws were harsh, unconscionable and oppressive, as well as an order for their removal. The dispute centred on the validity of certain by-laws under the Strata Schemes Management Act 2015.

The central legal issue before the Tribunal was whether the special by-laws 34 and 35 of the Strata Plan were harsh, unconscionable or oppressive. This required an assessment of the by-laws against the criteria established in relevant case law, particularly the decision in Strata Plan No 64650 v Strata Plan No 64525. The Tribunal had to consider whether the by-laws imposed obligations that were disproportionate to the rights and benefits provided to owners, and whether they were unjust or unfair in a manner that was not reasonably required for the proper conduct of the body corporate.

In its decision, the Tribunal found that the special by-laws 34 and 35 were indeed harsh, unconscionable and oppressive. The Tribunal concluded that these by-laws imposed excessive and disproportionate obligations on owners, without providing any commensurate benefits. The Tribunal found that the by-laws were not reasonably required for the proper conduct of the body corporate, and were therefore invalid. As a result, the Tribunal ordered that the by-laws be removed and that their removal be recorded as having operated from 18 January 2015. The Tribunal also dismissed the application by Mr Greenway to set aside the declaration of invalidity of the by-laws. The Tribunal further ordered that any applications for costs be made by written submissions, with a specific focus on whether the question of costs could be decided on the papers, without a hearing.