Fong v The Owners – Strata Plan No. 82783 [2022] NSWCATCD 56

Fong v The Owners – Strata Plan No. 82783 [2022] NSWCATCD 56

There was no rational or sound basis for the refusal of the applicant's proposed by-law. The owners corporation's refusal was unreasonable, being unsupported by probative evidence or persuasive reasoning. The Tribunal ordered the by-law as proposed by the applicant to be prescribed.

Source-derived case information.

Jurisdiction
Australia
Judgment Date
27 April 2022
Procedural Posture
Strata Dispute / Decision on Merits After Hearing
Outcome
Applicant succeeds in principal claim under s. 149; by-law ordered; alternative claim under s. 126 refused.
Legal Topics
['strata Schemes' 'common Property Rights by Law' 'unreasonable Refusal' 'strata Schemes Management Act 2015 (nsw) S. 149']
['property Law'] ['strata Schemes' 'common Property Rights by Law' 'unreasonable Refusal' 'strata Schemes Management Act 2015 (nsw) S. 149']

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Procedural Posture

Strata Dispute / Decision on Merits After Hearing

Legal Issues

  1. 1 ['Whether the owners corporation unreasonably refused to make a common property rights by-law permitting the applicant’s works under s. 149 Strata Schemes Management Act 2015 (NSW).']

Ratio Decidendi

There was no rational or sound basis for the refusal of the applicant's proposed by-law. The owners corporation's refusal was unreasonable, being unsupported by probative evidence or persuasive reasoning. The Tribunal ordered the by-law as proposed by the applicant to be prescribed.

Court Disposition

Applicant succeeds in principal claim under s. 149; by-law ordered; alternative claim under s. 126 refused.

Orders

  • ['Order pursuant to section 149 of the Strata Schemes Management Act 2015 (NSW) prescribing special by-law 29 as a change to the by-laws for Strata Plan 82783, operating from 20 January 2022.' 'Order the Owners Corporation SP 82783 promptly to do all acts necessary to record the by-law described in order 1, pursuant...