Mackinnon v Greenway; Greenway v The Owners – Strata Plan No 49770 [2020] NSWCATCD 28

Mackinnon v Greenway; Greenway v The Owners – Strata Plan No 49770 [2020] NSWCATCD 28

Special by-laws 34 and 35 are harsh, unconscionable and oppressive due to an overly stringent acoustic standard, unfettered discretion, lack of consideration for individual circumstances, burdensome procedures, retrospective effect, and requirements which go beyond statutory rights and obligations. Consequently, the Tribunal declared the by-laws invalid and dismissed the application to enforce them.

Jurisdiction
Australia
Judgment Date
10 November 2020
Procedural Posture
Strata Dispute / Final Determination
Outcome
Special by-laws 34 and 35 declared invalid; enforcement application dismissed; orders for removal of by-laws; directions for costs submissions.
Legal Topics
['validity of by Laws' 'flooring' 'harsh, Unconscionable or Oppressive by Laws' 'retrospective Operation of by Laws' 'noise Guidelines']
['strata Law'] ['validity of by Laws' 'flooring' 'harsh, Unconscionable or Oppressive by Laws' 'retrospective Operation of by Laws' 'noise Guidelines']

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Procedural Posture

Strata Dispute / Final Determination

Legal Issues

  1. 1 ['Whether special by-laws 34 and 35 are harsh, unconscionable or oppressive' "Whether the respondent's flooring achieves marginal compliance" 'Whether orders to enforce the by-laws should be made']

Ratio Decidendi

Special by-laws 34 and 35 are harsh, unconscionable and oppressive due to an overly stringent acoustic standard, unfettered discretion, lack of consideration for individual circumstances, burdensome procedures, retrospective effect, and requirements which go beyond statutory rights and obligations. Consequently, the Tribunal declared the by-laws invalid and dismissed the application to enforce them.

Court Disposition

Special by-laws 34 and 35 declared invalid; enforcement application dismissed; orders for removal of by-laws; directions for costs submissions.

Orders

  • ['The application in SC 20/12439 is dismissed.' 'Order under section 150 of the Strata Schemes Management Act 2015 that special by-laws 34 and 35 are declared to be (and since the date of registration have been) harsh, unconscionable and oppressive.' 'Order the Owners Corporation SP 49770 to promptly take all...