Owners – Strata Plan No 58068 v/ats Cooper [2019] NSWCATCD 62

Owners – Strata Plan No 58068 v/ats Cooper [2019] NSWCATCD 62

On the evidence, by-law 14 (blanket 'no pets') was found, in the circumstances of the scheme and in relation to pets like Angus, to be harsh, unconscionable, and oppressive under SSMA s 139(1). The Tribunal ordered its removal under s 150 and s 246, with orders backdated to registration date. The Owners Corporation's evidence did not discharge the evidentiary burden to justify the blanket prohibition in the scheme's context; mere majority preference and unsupported 'floodgates' arguments were insufficient. No monetary penalty was imposed as notices relied on invalid or removed by-laws.

Parties
Applicant in Sc19/18982, Respondent in SC 19/27422: The Owners – Strata Plan No 58068; Respondents in SC 19/18982, Applicants in SC 19/27422: Johanna Anwar Cooper and Leo Bernard Cooper
Jurisdiction
Australia
Judgment Date
21 November 2019
Procedural Posture
Tribunal Application (consumer and Commercial Division) Strata Scheme Dispute / Principal Judgment
Outcome
By-law 14 declared invalid and ordered removed; Owners Corporation's penalty application dismissed; costs orders reserved subject to written submissions.
Legal Topics
Strata Schemes, By Laws, Pet Ownership, Invalidity of by Laws, Harsh, Unconscionable or Oppressive by Laws, Remedies Under Strata Schemes Management Act
Strata Law Property Law Administrative Law Strata Schemes By Laws Pet Ownership Invalidity of by Laws Harsh, Unconscionable or Oppressive by Laws +1 more

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Parties

The Owners – Strata Plan No 58068

Applicant in Sc19/18982, Respondent in SC 19/27422

Johanna Anwar Cooper and Leo Bernard Cooper

Respondents in SC 19/18982, Applicants in SC 19/27422

Procedural Posture

Tribunal Application (consumer and Commercial Division) Strata Scheme Dispute / Principal Judgment

Legal Issues

  1. 1 Whether by-law 14 excluding pets is harsh, unconscionable or oppressive under Strata Schemes Management Act 2015 (NSW) s 139(1)
  2. 2 Whether owners corporation's refusal to amend or replace the by-law was unreasonable
  3. 3 Remedies available under SSMA ss 150, 246

Ratio Decidendi

On the evidence, by-law 14 (blanket 'no pets') was found, in the circumstances of the scheme and in relation to pets like Angus, to be harsh, unconscionable, and oppressive under SSMA s 139(1). The Tribunal ordered its removal under s 150 and s 246, with orders backdated to registration date. The Owners Corporation's evidence did not discharge the evidentiary burden to justify the blanket prohibition in the scheme's context; mere majority preference and unsupported 'floodgates' arguments were insufficient. No monetary penalty was imposed as notices relied on invalid or removed by-laws.

Court Disposition

By-law 14 declared invalid and ordered removed; Owners Corporation's penalty application dismissed; costs orders reserved subject to written submissions.

Orders

  • 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.
  • Order Owners Corporation SP 48887 to promptly do all acts necessary to record the removal of by-law 14 pursuant to s 246, such removal to be recorded as having operated on and from date of registration of the by-law being 21 January 2019.