Macey's Group Pty Ltd v Owners – Strata Plan No 33591 [2021] NSWCATAP 7

Macey's Group Pty Ltd v Owners – Strata Plan No 33591 [2021] NSWCATAP 7

The Appeal Panel held that the appellant had not unreasonably refused consent to the repeal of Special By-Law 8. The mediation agreement and proposed lease were void for uncertainty, any consent in that agreement could not have continuing operation once the consideration for consent failed, and the Tribunal could...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
18 January 2021
Procedural Posture
Appeal Concerning Repeal of a Strata Common Property Rights by Law / Appeal to the NSW Civil and Administrative Tribunal Appeal Panel From Orders Made in the Consumer and Commercial Division on 12 May 2020
Outcome
Appeal allowed; orders 1 and 2 made on 12 May 2020 set aside; application dismissed.
Legal Topics
['common Property Rights by Law' 'repeal of by Law' 'mediation Settlement Agreement' 'unreasonable Refusal to Consent' 'tribunal Power to Impose Conditions' 'lease Uncertainty']
['strata Titles Law' 'administrative Law'] ['common Property Rights by Law' 'repeal of by Law' 'mediation Settlement Agreement' 'unreasonable Refusal to Consent' 'tribunal Power to Impose Conditions' 'lease Uncertainty']

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Procedural Posture

Appeal Concerning Repeal of a Strata Common Property Rights by Law / Appeal to the NSW Civil and Administrative Tribunal Appeal Panel From Orders Made in the Consumer and Commercial Division on 12 May 2020

Legal Issues

  1. 1 ['Whether the Tribunal erred in finding that the appellant had unreasonably refused to consent to the repeal of Special By-Law 8 under s 149 of the Strata Schemes Management Act 2015 (NSW).' 'Whether the Tribunal could make an order repealing Special By-Law 8 on condition that the Owners Corporation offer, and the appellant potentially accept, a lease over the relevant common property.' 'Whether an unenforceable mediation agreement void for uncertainty could operate as implied or conditional consent to repeal the by-law.' 'Whether Special By-Law 8 was for the benefit of the owner of Lot 40 and how that affected the reasonableness assessment.']

Ratio Decidendi

The Appeal Panel held that the appellant had not unreasonably refused consent to the repeal of Special By-Law 8. The mediation agreement and proposed lease were void for uncertainty, any consent in that agreement could not have continuing operation once the consideration for consent failed, and the Tribunal could not use an implied consent to impose a different lease arrangement on the parties. Any refusal contemplated by the Tribunal would only arise after a lease was offered under the Tribunal's condition, so s 149(1)(b) was not engaged. Special By-Law 8 conferred a valuable right attached to Lot 40, and the proposed lease was not an equivalent substitute because its term was uncertain...

Court Disposition

Appeal allowed; orders 1 and 2 made on 12 May 2020 set aside; application dismissed.

Orders

  • ['The appeal is allowed, orders 1 and 2 made 12 May 2020 are set aside and the application is dismissed.' 'Subject to order 3, each party is to pay their own costs of the proceedings at first instance and on appeal.' 'If either party contends a different costs order should be made, directions are made for filing and...