EKG Pastries Pty Ltd v The Owners – Strata Plan No. 87145 [2022] NSWCATCD 65

EKG Pastries Pty Ltd v The Owners – Strata Plan No. 87145 [2022] NSWCATCD 65

By-law 29 is invalid from the date it was purportedly made because it is inconsistent with s 83(2) of the Strata Schemes Management Act 2015, in levying a contribution for water usage not proportionate to unit entitlement, and is therefore ultra vires regardless of wording.

Source-derived case information.

Jurisdiction
Australia
Judgment Date
01 June 2022
Procedural Posture
Strata Title Application / Principal Judgment
Outcome
By-law declared invalid; procedural orders issued; costs reserved for application by parties.
Legal Topics
['by Laws' 'contributions' 'ultra Vires' 'declaration of Invalidity' 'water Charges' 'unit Entitlement']
['land Law' 'strata Title'] ['by Laws' 'contributions' 'ultra Vires' 'declaration of Invalidity' 'water Charges' 'unit Entitlement']

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Procedural Posture

Strata Title Application / Principal Judgment

Legal Issues

  1. 1 ['Whether By-law 29 is inconsistent with s 83(2) of the Strata Schemes Management Act 2015 and therefore invalid' 'Whether By-law 29 is harsh, unconscionable or oppressive' 'Whether the Owners Corporation had power to make By-law 29']

Ratio Decidendi

By-law 29 is invalid from the date it was purportedly made because it is inconsistent with s 83(2) of the Strata Schemes Management Act 2015, in levying a contribution for water usage not proportionate to unit entitlement, and is therefore ultra vires regardless of wording.

Court Disposition

By-law declared invalid; procedural orders issued; costs reserved for application by parties.

Orders

  • ['By-Law 29 of Strata Plan 87145 is declared invalid on and from 16 May 2018 pursuant to ss 136(2) and 150(1) of the Strata Schemes Management Act 2015.' 'Before 1 July 2022, The Owners – Strata Plan 87145 must obtain a certified copy of order 1 from the NCAT Registrar, lodge it with the Registrar General NSW Land...