Fayle & Minell Cleggett, v The Owners Corporation Strata Plan No 35541 [2015] NSWCATCD 6

Fayle & Minell Cleggett, v The Owners Corporation Strata Plan No 35541 [2015] NSWCATCD 6

The applicants lacked standing to seek orders under s 157 because, at the date of the meeting, unpaid levies meant they were not entitled to vote on the motion repealing Special By-Law 8; the later levy variation order was not retrospective. As the motion revoking the by-law could be revoked only under s 157 and s 169 was merely ancillary, the Tribunal had no power to grant the relief sought. The Adjudicator's dismissal was therefore affirmed, although for different reasons.

Jurisdiction
Australia
Judgment Date
15 January 2015
Procedural Posture
Appeal From an Adjudication Application Concerning Repeal of a Strata Scheme Special by Law / Appeal Dismissed; Adjudicator's Dismissal of the Application Affirmed
Outcome
The appeal is dismissed. The original decision of the Adjudicator dismissing the application is affirmed, but for the reasons set out herein.
Legal Topics
['exclusive Use by Law' 'repeal of by Law' 'standing to Apply Under Section 157' 'unpaid Strata Levies and Voting Rights' 'ancillary Orders' 'written Consent for Exclusive Use by Laws']
['strata Law' 'administrative Tribunal Proceedings'] ['exclusive Use by Law' 'repeal of by Law' 'standing to Apply Under Section 157' 'unpaid Strata Levies and Voting Rights' 'ancillary Orders' 'written Consent for Exclusive Use by Laws']

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Procedural Posture

Appeal From an Adjudication Application Concerning Repeal of a Strata Scheme Special by Law / Appeal Dismissed; Adjudicator's Dismissal of the Application Affirmed

Legal Issues

  1. 1 ['Does the applicant have standing to bring the application under section 157 of the Strata Schemes Management Act, 1996?' 'Did the Adjudicator fall into error?' 'Does section 52 of the Strata Schemes Management Act, 1996 apply, and if so, has section 52(1) been complied with?' 'Should the motion revoking the By-Law be itself revoked? If not, should the alternate orders sought by the applicant be made?']

Ratio Decidendi

The applicants lacked standing to seek orders under s 157 because, at the date of the meeting, unpaid levies meant they were not entitled to vote on the motion repealing Special By-Law 8; the later levy variation order was not retrospective. As the motion revoking the by-law could be revoked only under s 157 and s 169 was merely ancillary, the Tribunal had no power to grant the relief sought. The Adjudicator's dismissal was therefore affirmed, although for different reasons.

Court Disposition

The appeal is dismissed. The original decision of the Adjudicator dismissing the application is affirmed, but for the reasons set out herein.

Orders

  • ['The appeal is dismissed.' 'The original decision of the Adjudicator dismissing the application is affirmed, but for the reasons set out herein.']