Hunt v The Owners - Strata Plan No 1158/84199 [2024] NSWCATAP 65

Hunt v The Owners - Strata Plan No 1158/84199 [2024] NSWCATAP 65

The correct construction of Special By-law 5 is conjunctive: condenser units must be both out of sight from other apartments and housed in a specified cover. The by-law is a regulatory, not prohibitive, measure and is not unjust, harsh, unconscionable, or oppressive under s 139(1) of the Strata Schemes Management Act 2015. The owners corporation’s refusal to approve condenser placements that did not comply with the by-law was not unreasonable. No error of law or grounds for leave to appeal were established; the proposed works could be approved if compliant with the by-law.

Jurisdiction
Australia
Judgment Date
22 April 2024
Procedural Posture
Appeal / Application for Leave to Appeal and Appeal Determination
Outcome
Leave to appeal is refused and the appeal is dismissed.
Legal Topics
['strata Schemes' 'by Law Interpretation' 'amenity Protection' 'unreasonable Refusal of Owner Applications' 'harshness or Oppressiveness of by Laws' 'principles of Statutory and by Law Construction']
['land Law' 'administrative Law'] ['strata Schemes' 'by Law Interpretation' 'amenity Protection' 'unreasonable Refusal of Owner Applications' 'harshness or Oppressiveness of by Laws' 'principles of Statutory and by Law Construction']

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Procedural Posture

Appeal / Application for Leave to Appeal and Appeal Determination

Legal Issues

  1. 1 ['Whether the Tribunal erred in its construction of Special By-law 5 regulating air conditioning installations' 'Whether Special By-law 5 is harsh, unconscionable or oppressive under s 139(1) of the Strata Schemes Management Act 2015' 'Whether the refusal to approve installation under Special By-law 5 was unreasonable within the meaning of s 126(1) of the Strata Schemes Management Act 2015 and/or whether an order should be made under s 232' 'Whether leave to appeal should be granted']

Ratio Decidendi

The correct construction of Special By-law 5 is conjunctive: condenser units must be both out of sight from other apartments and housed in a specified cover. The by-law is a regulatory, not prohibitive, measure and is not unjust, harsh, unconscionable, or oppressive under s 139(1) of the Strata Schemes Management Act 2015. The owners corporation’s refusal to approve condenser placements that did not comply with the by-law was not unreasonable. No error of law or grounds for leave to appeal were established; the proposed works could be approved if compliant with the by-law.

Court Disposition

Leave to appeal is refused and the appeal is dismissed.

Orders

  • ['Leave to appeal is refused.' 'The appeal is dismissed.']