The Owners Strata Plan No. 56587 v White - [2021] NSWCATCD 67

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: The Owners - Strata Plan No. 56587 v White [2021] NSWCATCD 67
Hearing dates: 28 January 2021
Date of orders: 29 January 2021
Decision date: 29 January 2021
Jurisdiction: Consumer and Commercial Division
Before: G Blake AM SC, Senior Member
Decision:
(1) The respondent is to cause her two dogs to be removed, and to be kept away, from the land comprising the lots and common property in SP56587 by 29 February 2021.

Catchwords:
LAND LAW — Strata title — by-laws - application for order for removal of two dogs not permitted under by-laws

Legislation Cited:
Civil and Administrative Tribunal Rules 2014 (NSW)
Strata Schemes Management Act 2015 (NSW)

Cases Cited:
Chehelnabi v Gourmet and Leisure Holdings Pty Ltd [2020] NSWCATAP 102
The Owners Strata Plan No 2245 v Veney [2020] NSWSC 134
Van Son v Forestry Commission of New South Wales (1995) 6 BPR 13,945

Texts Cited:
None cited

Category: Principal judgment
Parties: The Owners - Strata Plan No. 56587 (Applicant)
Tanya Jane White (Respondent)
File Number(s): SC 20/20146
Publication restriction: Nil

REASONS FOR DECISION

Introduction

In these proceedings the applicant The Owners - Strata Plan No 56587, which is the owners corporation responsible for the management of the strata scheme related to strata plan no 80877 (SP56587) seeks an order under the Strata Schemes Management Act 2015 (NSW) (SSM Act) against the respondent Tanya Jane White for the removal of her two dogs.
I have decided to make an order under s 156(1) of the SSM Act that the respondent is to cause her two dogs to be removed, and to be kept away, from the land comprising the lots and common property in SP56587 by 29 February 2021.

The background

SP56587 was registered on 24 February 1998 and is a complex at Mascot containing 201 residential lots in seven multi storey buildings with the ground floor lots having a backyard.
The by-laws lodged with SP56587 included by-law 16 (the 1998 by-law 16):

“16. Keeping of animals
(1) Subject to section 49(4), an owner or occupier of a lot must not, without the prior written approval of the owners corporation, keep any animal (except fish kept in a secure aquarium on the lot) on the lot or the common property.
(2) The owners corporation must not unreasonably withhold its approval of the keeping of an animal on a lot or the common property.

On 11 December 2003 the applicant resolved to amend the by-laws and subsequently in 2004 registered the amended by-laws which relevantly repealed the 1998 by-law 16 and included a substituted by-law 16 (the 2004 by-law 16):

“BY-LAW NO. 16   ANIMALS
A.   SCOPE OF BY-LAW
i)   Subject to section 49 (4) of the Act, an owner or occupier must not keep an animal on the lot or the common property except in accordance with this by-law.

B. OBLIGATIONS OF OWNERS
ii) Subject to clause B(irl), an owner or occupier of a lot who is…

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.

Keep reading for free

Create a free CaseChat account to read The Owners Strata Plan No. 56587 v White and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NSWCATCD 67
Decision Date: 29 January 2021

CaseChat Overview and Summary

In the case of The Owners Strata Plan No. 56587 v White, the applicants, owners of a strata title in a residential development, sought an order for the removal of two dogs owned by the respondent, Ms White. The dispute arose from the respondent’s alleged non-compliance with the by-laws of the development, which prohibit the keeping of dogs on the common property and within the lots.

The primary legal issue before the court was whether the by-laws of the development were valid and enforceable, and if so, whether the respondent had breached them by keeping two dogs on the premises. The court had to determine the validity of the by-laws, ascertain whether the respondent had indeed contravened the provisions, and assess the appropriate remedy in the event of a breach.

The court found that the by-laws were indeed valid and binding on all lot owners, as they were properly enacted and registered in accordance with the relevant legislation. The evidence presented demonstrated that the respondent had failed to adhere to the by-laws by keeping two dogs on the common property and within the lots, in contravention of the provisions. Given the clear breach of the by-laws and the potential disturbance to other residents, the court granted the relief sought by the applicants.

The court ordered that the respondent must remove her two dogs from the land comprising the lots and common property in Strata Plan No. 56587 and ensure they are kept away from the premises by 29 February 2021. This order was intended to uphold the enforceability of the by-laws and maintain the intended standards and peace within the residential development.

Orders

Orders of the court

(1) The respondent is to cause her two dogs to be removed, and to be kept away, from the land comprising the lots and common property in SP56587 by 29 February 2021.

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:	The Owners - Strata Plan No. 56587 v White [2021] NSWCATCD 67
Hearing dates:	28 January 2021
Date of orders:	29 January 2021
Decision date:	29 January 2021
Jurisdiction:	Consumer and Commercial Division
Before:	G Blake AM SC, Senior Member
Decision:	(1) The respondent is to cause her two dogs to be removed, and to be kept away, from the land comprising the lots and common property in SP56587 by 29 February 2021.
Catchwords:	LAND LAW — Strata title — by-laws - application for order for removal of two dogs not permitted under by-laws
Legislation Cited:	Civil and Administrative Tribunal Rules 2014 (NSW) Strata Schemes Management Act 2015 (NSW)
Cases Cited:	Chehelnabi v Gourmet and Leisure Holdings Pty Ltd [2020] NSWCATAP 102 The Owners Strata Plan No 2245 v Veney [2020] NSWSC 134 Van Son v Forestry Commission of New South Wales (1995) 6 BPR 13,945
Texts Cited:	None cited
Category:	Principal judgment
Parties:	The Owners - Strata Plan No. 56587 (Applicant) Tanya Jane White (Respondent)
File Number(s):	SC 20/20146
Publication restriction:	Nil