Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Roden v The Owners-Strata Plan No 55773 [2019] NSWCATCD 61 Hearing dates: 20 May 2019 Date of orders: 18 September 2019 Decision date: 18 September 2019 Jurisdiction: Consumer and Commercial Division Before: N Vrabac, Senior Member Decision: Pursuant to s 150(1) of the SSM Act an order is made declaring by-law 14 of Strata Plan 55773 passed at an EGM in 2013 invalid because it is harsh, unconscionable and oppressive in breach of section 139(1).
The applicant’s application to make an interim order pursuant to s 231 of the SSM Act on behalf of a 3d party is dismissed.Catchwords: By-law banning all animals Legislation Cited: Strata Schemes Management Act 1996 (“the former SSM Act”)
Strata Schemes Management Regulation 2010 (“the former SSM Regulation”)
Strata Schemes Management Act 2015 (“SSM Act”)
Strata Schemes Management Regulation 2016 (“SSM Regulation”)Cases Cited: Allen v Townsend (1977) 16 ALR 301
Body Corporate for River City Apartments v McGarvey ((2012) QCATA-057).
Edelston v Wilcox (1998) 83 ALR
McKenzie v Body Corporate Kings Row CentreQCATA-57.
Owners of Strata Plan3397 v Tate (2007) NSWLR 344
Owners SP67631 v Waters and Gardner [2010] NSWCTTT
Qantas Airways Ltd v Cameron (1996) 66 FCR
Rhode Island [2012] QBCC MCmr
Sydney Diagnostic Services Pty Ltd v Hamlena Pty Ltd (1991) 5 BPR 11.
Yardy v Owners Corporation SP 57237 [2018] NSWCATCD 19Category: Principal judgment Parties: Robert Roden (applicant)
The Owners-Strata Plan No 55773 (respondent)Representation: Mr R Roden (applicant in person)
Ms G Ramensky (respondent-chairperson)
File Number(s): SC 18/37522 Publication restriction: Nil
REASONS FOR DECISION
Background
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The strata plan in this matter relates to a building called “The Elan” at Rushcutters Bay.
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The Elan is a 40 storey building with 280 apartments in it. Approximately half the units are tenanted.
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On 6 June 2013, by-law 14.1 was passed at an Extraordinary General Meeting (EGM).
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By-law 14.1 is in the following terms:
By-law 14. Keeping an animal
14.1 You must not keep an animal in your lot or on common property. However, you may keep a guide dog or a hearing dog if you need the dog because you are visually impaired.
14.2 You must not allow your visitors to bring animals into the Residential Scheme unless they are guide dogs or hearing dogs.
14.3 Notwithstanding 14.1, any resident who owned an animal that lived in “The Elan” as at 22 March 2013, may keep that animal provided it was registered with the Concierge staff by 15 April 2013 by the provision of the following details:
type of animal and breed where known
age of animal at date of registration
name of animal
photo of animal
owner’s details
if the animal is an officially trained assistance dog, evidence of this.
The owner of the animal may not, however, replace the registered animal with a different animal for any reason.
14.4 The owner or occupier must do all acts and things necessary to ensure a registered animal…
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- Case
- [2019] NSWCATCD 61
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the by-law was oppressive and harsh, as alleged by the applicant. The court had to consider whether the by-law breached section 139(1) of the Strata Schemes Management Act 1996, which mandates that by-laws must be fair and reasonable and not be oppressive or harsh. Additionally, the court examined the applicant’s request to make an interim order on behalf of a third party, a request which the respondents argued was inappropriate and not within the scope of the applicant’s rights.
The court found that by-law 14 was indeed harsh, unconscionable and oppressive, thereby invalid under section 139(1) of the Strata Schemes Management Act 1996. The by-law’s blanket ban on all animals was considered overly broad and not tailored to address specific concerns or risks. The court noted that there were alternative measures that could be implemented to address the issues without imposing such a severe restriction on all owners. Consequently, the by-law was declared invalid. However, the court dismissed the applicant's application to make an interim order on behalf of a third party, finding that the applicant did not have the standing to make such an application. The court held that the applicant's rights did not extend to making orders on behalf of others without their direct involvement or consent.
The court ordered that by-law 14 of Strata Plan 55773 be declared invalid as it contravened section 139(1) of the Strata Schemes Management Act 1996. The application for an interim order on behalf of a third party was dismissed.
Orders
Orders of the court
Pursuant to s 150(1) of the SSM Act an order is made declaring by-law 14 of Strata Plan 55773 passed at an EGM in 2013 invalid because it is harsh, unconscionable and oppressive in breach of section 139(1).
The applicant’s application to make an interim order pursuant to s 231 of the SSM Act on behalf of a 3d party is dismissed.
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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