Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Owners – Strata Plan No 58068 v/ats Cooper [2019] NSWCATCD 62 Hearing dates: 26 September 2019; further written submissions to 11 October 2019 Date of orders: 21 November 2019 Decision date: 21 November 2019 Jurisdiction: Consumer and Commercial Division Before: G K Burton SC, Senior Member Decision: In SC 19/27422:
1. Order under s 150 of the Strata Schemes Management Act 2015 (NSW) that by-law 14 is declared to be and since its date of registration has been harsh, unconscionable and oppressive.2. Order the Owners Corporation SP 48887 promptly to do all acts necessary to record the removal of by-law 14 pursuant to s 246 of the Strata Schemes Management Act 2015 (NSW), such removal to be recorded as having operated on and from date of registration of the by-law being 21 January 2019.
In SC 19/18982:
3. Dismiss the application.In both SC 19/18982 and SC 19/27422:
4. Note the agreement of the parties that questions of costs can be decided on written submissions without the need for further hearing on costs.
5. Order as follows:
5.1 Any party’s written submissions and any further evidence in chief on costs is to be lodged with the Tribunal and served on each other party on or before 6 December 2019.
5.2 Any party’s written submissions and any further evidence in reply on costs is to be lodged with the Tribunal and served on each other party on or before 20 December 2019.
5.3 If there are no submissions and material lodged and served pursuant to 5.1 and 5.2, then the order will be that: (1) the Owners Corporation is to pay J A and L B Cooper's costs of both proceedings on the ordinary basis as agreed or assessed; and (2) the Owners Corporation is not to recoup its costs under the preceding costs order or its own costs of both proceedings from levy or fund that includes money contributed by J A and L B Cooper.Catchwords: Strata management – by-law excluding pets - refusal to amend or replace with new by-law - SSMA ss 134, 135, 136, 138, 139, 146, 147, 148, 149, 150, 153, 156, 157, 158, 159, 232; 1996 Regulation cll 35, 37, Sch 2, Sch 3. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Interpretation Act 1987 (NSW)
Strata Schemes (Freehold Development) Act 1973 (NSW)
Strata Schemes Management Act 1996 (NSW)
Strata Schemes Management Regulation 1997 (NSW)
Strata Schemes Management Regulation 2005 (NSW)
Strata Schemes Management Regulation 2010 (NSW)
Strata Schemes Management Act 2015 (NSW)
Strata Schemes Management Regulation 2016 (NSW)Cases Cited: Ainsworth v Albrecht [2016] HCA 40; (2016) 261 CLR 167
Bonita v Shen [2016] NSWCATAP 159
Capcelea v Owners SP 48887 [2019] NSWCATCD 27
Carroll v Alldritt [2013] NSWCTTT 525
Castle Constructions PL v Sahab PL and the Registrar-General (2013) 247 CLR 149, [2013] HCA 11
Donnellan v Woodland [2012] NSWCA 433
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- Case
- [2019] NSWCATCD 62
- Decision Date
CaseChat Overview and Summary
The Tribunal found that the by-law was harsh, unconscionable, and oppressive as it was not in the best interests of the owners to have the prohibition on pets. The Tribunal held that the Owners Corporation had acted unreasonably in refusing to amend or replace the by-law, and that the by-law was not consistent with the provisions of the Act. The Tribunal also found that the Owners Corporation had not considered the interests of all owners in making the decision to prohibit pets. The Tribunal ordered that the by-law be declared harsh, unconscionable, and oppressive and that it be removed from the strata scheme. The Tribunal further ordered that the Owners Corporation pay the costs of the proceedings.
In conclusion, the Tribunal ordered that the by-law prohibiting pets in the strata scheme be declared harsh, unconscionable, and oppressive and be removed from the strata scheme. The Owners Corporation was ordered to pay the costs of the proceedings. The parties agreed that questions of costs could be decided on written submissions without the need for a further hearing on costs. The Tribunal ordered that any party's written submissions and any further evidence in chief on costs be lodged with the Tribunal and served on each other party on or before 6 December 2019, and any party's written submissions and any further evidence in reply on costs be lodged with the Tribunal and served on each other party on or before 20 December 2019. If there were no submissions and material lodged and served pursuant to the orders, then the Owners Corporation was to pay Cooper's costs of both proceedings on the ordinary basis as agreed or assessed, and the Owners Corporation was not to recoup its costs under the preceding costs order or its own costs of both proceedings from levy or fund that includes money contributed by Cooper.
Orders
Orders of the court
In SC 19/27422:
1. Order under s 150 of the Strata Schemes Management Act 2015 (NSW) that by-law 14 is declared to be and since its date of registration has been harsh, unconscionable and oppressive.
2. Order the Owners Corporation SP 48887 promptly to do all acts necessary to record the removal of by-law 14 pursuant to s 246 of the Strata Schemes Management Act 2015 (NSW), such removal to be recorded as having operated on and from date of registration of the by-law being 21 January 2019.
In SC 19/18982:
3. Dismiss the application.
In both SC 19/18982 and SC 19/27422:
4. Note the agreement of the parties that questions of costs can be decided on written submissions without the need for further hearing on costs.
5. Order as follows:
5.1 Any party’s written submissions and any further evidence in chief on costs is to be lodged with the Tribunal and served on each other party on or before 6 December 2019.
5.2 Any party’s written submissions and any further evidence in reply on costs is to be lodged with the Tribunal and served on each other party on or before 20 December 2019.
5.3 If there are no submissions and material lodged and served pursuant to 5.1 and 5.2, then the order will be that: (1) the Owners Corporation is to pay J A and L B Cooper's costs of both proceedings on the ordinary basis as agreed or assessed; and (2) the Owners Corporation is not to recoup its costs under the preceding costs order or its own costs of both proceedings from levy or fund that includes money contributed by J A and L B Cooper.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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