Kaye v The Owners – SP 4350 [2022] NSWCATAP 173

Kaye v The Owners – SP 4350 [2022] NSWCATAP 173

While an error of law was identified in the original Tribunal decision regarding consideration of the First By-Law Version, the Appeal Panel found that the refusal of the Owners Corporation to pass the First By-Law Version at the EGMs was, on balance, not unreasonable given the interests and objections of other lot owners outweighed the appellants’ expectations. Compensation offered was not adequate for exclusive use, and no order was made to prescribe a by-law.

Jurisdiction
Australia
Judgment Date
25 May 2022
Procedural Posture
Appeal / Appeal Panel Decision
Outcome
Appeal dismissed; original orders confirmed
Legal Topics
['strata Schemes' 'common Property Rights by Law' 'exclusive Use' 'reasonableness of Refusal']
['land Law'] ['strata Schemes' 'common Property Rights by Law' 'exclusive Use' 'reasonableness of Refusal']

Case Brief

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Procedural Posture

Appeal / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether the refusal of the respondent to pass the First By-Law Version at extraordinary general meetings was unreasonable within ss 126(1) and 149(1)(a) of the Strata Schemes Management Act 2015 (NSW)' 'Whether compensation offered constituted reasonable consideration for exclusive use' 'Whether Tribunal correctly applied s 149(3) of the Strata Schemes Management Act 2015 (NSW)']

Ratio Decidendi

While an error of law was identified in the original Tribunal decision regarding consideration of the First By-Law Version, the Appeal Panel found that the refusal of the Owners Corporation to pass the First By-Law Version at the EGMs was, on balance, not unreasonable given the interests and objections of other lot owners outweighed the appellants’ expectations. Compensation offered was not adequate for exclusive use, and no order was made to prescribe a by-law.

Court Disposition

Appeal dismissed; original orders confirmed

Orders

  • ['The orders of the Tribunal made on 29 November 2021 in matter SC 20/47052 are confirmed.' 'The parties are directed to file and serve submissions as to costs within 14 days, setting out the relevant costs rule and the reasons why they say they are entitled to costs.' "The parties may respond to the other's...