Shonroo Pty Ltd v Community Association DP 270482; Casuscelli v Community Association DP 270482 and Shonroo Pty Ltd [2019] NSWCATAP 168

Shonroo Pty Ltd v Community Association DP 270482; Casuscelli v Community Association DP 270482 and Shonroo Pty Ltd [2019] NSWCATAP 168

The amendments to Part 4 of the by-laws and Part 5 of the Management Statement were invalid. Part 5, as it stood at the time of the Annual General Meeting, required approval of Cessnock City Council and/or Singleton Council before Part 4 could be varied, modified or revoked, and no such approval was obtained. Further, the Association had no general power under the Community Land Management Act 1989 to create by-laws authorising entry onto a proprietor's lot and removal of structures outside the confined statutory circumstances. Section 110(c) did not support the amendments because there was no evidence that the container or other contemplated structures caused a nuisance or hazard. The...

Jurisdiction
Australia
Judgment Date
08 July 2019
Procedural Posture
Internal Appeal From NSW Civil and Administrative Tribunal Consumer and Commercial Division Decision Concerning Validity of Amendments to a Community Association Management Statement and by Laws / Appeal Allowed by Appeal Panel
Outcome
Appeal allowed; decision under appeal set aside; invalid amendments revoked; costs reserved.
Legal Topics
['community Association Management Statement' 'amendment of by Laws' 'council Approval Requirement' 'powers of Entry' 'invalid Amendments' 'internal Appeal' 'new Grounds on Appeal']
['community Title' 'administrative Law' 'civil Procedure'] ['community Association Management Statement' 'amendment of by Laws' 'council Approval Requirement' 'powers of Entry' 'invalid Amendments' 'internal Appeal' 'new Grounds on Appeal']

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Procedural Posture

Internal Appeal From NSW Civil and Administrative Tribunal Consumer and Commercial Division Decision Concerning Validity of Amendments to a Community Association Management Statement and by Laws / Appeal Allowed by Appeal Panel

Legal Issues

  1. 1 ['Whether the Appeal Panel should determine new grounds raised for the first time on appeal instead of requiring fresh proceedings.' 'Whether amendments made at the Annual General Meeting to Part 4 of the by-laws and Part 5 of the Management Statement were invalid because approval of the relevant Council had not been obtained as required by Part 5 of the Management Statement.' 'Whether the Community Association had power under the Community Land Management Act 1989 to amend the by-laws to permit removal of unauthorised structures from lots and entry onto lots to do so.' 'Whether section 110(c) of the Community Land Management Act 1989 justified the amendments on the basis that a container on a lot constituted a nuisance.' 'Whether alleged 2013 removal of former By-Laws 47 and 48 should be determined in the appeal.']

Ratio Decidendi

The amendments to Part 4 of the by-laws and Part 5 of the Management Statement were invalid. Part 5, as it stood at the time of the Annual General Meeting, required approval of Cessnock City Council and/or Singleton Council before Part 4 could be varied, modified or revoked, and no such approval was obtained. Further, the Association had no general power under the Community Land Management Act 1989 to create by-laws authorising entry onto a proprietor's lot and removal of structures outside the confined statutory circumstances. Section 110(c) did not support the amendments because there was no evidence that the container or other contemplated structures caused a nuisance or hazard. The...

Court Disposition

Appeal allowed; decision under appeal set aside; invalid amendments revoked; costs reserved.

Orders

  • ['Appeal allowed.' 'The decision of the Member in SCS 18/09453 is set aside.' 'So much of the amendments made at the Annual General Meeting of Community Association DP 270482 held on 7 October, 2017 which purport to amend any provision of Part 4 of the By-Laws of the Association and which purport to amend Part 5 of...