White v Betalli

The case of *White v Betalli* concerned a dispute between two lot proprietors within a strata scheme. The appellant, Mr White, sought to challenge the validity of a special by-law that granted the respondent, Mr Betalli, the right to use and occupy a portion of Mr White's lot for the storage of small watercraft. The matter came before the Court of Appeal of New South Wales.

The central legal issues before the court were whether the special by-law was validly created under section 43 of the *Strata Schemes Management Act 1996* (NSW). Specifically, the court had to determine if the by-law was "appropriate to the type of strata scheme concerned" and if it was inconsistent with the *Strata Schemes Management Act* or any other Act or law. A further issue arose regarding whether the *expressum facit cessare tacitum* principle applied, suggesting that the only source of power to create such a right was section 88B of the *Conveyancing Act 1919* (NSW).

The Court of Appeal held that the special by-law was valid. It reasoned that section 43 of the *Strata Schemes Management Act* conferred broad power to make by-laws, provided they were appropriate to the scheme and not inconsistent with other legislation. The court found that the by-law in question did not create an easement or a proprietary interest in land that would require registration under the *Conveyancing Act*. Instead, it was a personal right granted by the strata scheme itself, enforceable between lot owners. The principle of *expressum facit cessare tacitum* was not applicable as the *Strata Schemes Management Act* provided a distinct mechanism for creating such rights within strata schemes.

Leave to appeal was granted, but the appeal was ultimately dismissed. The appellant, Mr White, was ordered to pay the respondent's costs.