Roden v The Owners Strata Plan No. 55773

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Roden v The Owners – Strata Plan No. 55773 [2021] NSWCATCD 61
Hearing dates:	30 August 2021
Date of orders:	30 August 2021
Decision date:	30 August 2021
Jurisdiction:	Consumer and Commercial Division
Before:	D Charles, Senior Member
Decision:	The application is dismissed because having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established.
Catchwords:	STRATA – keeping of animals by-law – challenge to its validity - whether parts of by-law enhance or preserve other lot owners' enjoyment or amenity in the scheme – relevant parts found not beyond power and not harsh unconscionable or oppressive
Legislation Cited:	Strata Schemes Management Act 2015 (NSW)
Cases Cited:	Cooper v The Owners - Strata Plan No 58058 [2020] NSWCA 250
Texts Cited:	None
Category:	Principal judgment
Parties:	Robert Roden (Applicant) The Owners – Strata Plan No. 55773 (Respondent)
File Number(s):	SC21/18086
Publication restriction:	Unrestricted

REASONS FOR DECISION

1. The applicant is a lot owner in a multi-level strata building at Darlinghurst NSW.

2. There are 280 residential lots in the strata scheme the subject of the application from floor 6 to floor 38 of the strata building. The respondent is the Owners Corporation of the strata scheme (OC).

3. By application lodged with the Tribunal on 26 April 2021, the applicant sought an order under s 150 of the Strata Schemes Management Act 2015 NSW (SSMA) invalidating parts of By-Law 14 - Keeping an Animal. There are two limbs to the applicant's argument as to invalidation: that parts of the By-Law are beyond power (first limb) and that parts of the By-Law are, in contravention of s 139 of the SSMA, harsh unconscionable or oppressive (second limb). To support his arguments, the applicant relied upon statements of Basten JA and Macfarlan JA in the Court of Appeal judgment of Cooper v The Owners - Strata Plan No 58058 [2020] NSWCA 250 (Cooper).

4. At the commencement of today's hearing, the applicant withdrew his objection to By-law 14.1 requiring written approval to the keeping of an animal on a lot, but he pressed his objections to the following other parts of the By-Law:

1. By-Law 14.2(c) - that the form of application must be accompanied by a non-refundable administration fee of $300 (Administration Fee);

2. By-Law 14.2(d) - that applications must be limited to two animals per apartment except for goldfish or small birds in cages;

3. By-Law 14.2(e) - that if an applicant wishes to change or replace the initial animal, he/she must sign a new application form;

4. By-Law 14.6(f) - that it is the responsibility of the animal owner to ensure when entering and exiting the building with an animal, he/she traverses common property without delay;

5. By-Law 14.6 (n) - that it is the responsibility of the animal owner to ensure that the animal is not left on any balcony of the lot while the owner or occupant…