The Owners – Strata Plan No 55773 v Roden; Spiers v The Owners – Strata Plan No 77953 [2020] NSWCATAP 95

The Owners – Strata Plan No 55773 v Roden; Spiers v The Owners – Strata Plan No 77953 [2020] NSWCATAP 95

A by-law prohibiting the keeping of animals, or limiting animals per lot, is not invalid by reason only of its terms under the Strata Schemes Management Act 2015 (NSW). The prohibition or limitation does not, per se, render the by-law harsh, unconscionable or oppressive. Validity depends on consideration of the terms, the history, the circumstances in which the by-law operates, and the applicant's situation. In these cases, there was no objective basis for finding the by-laws harsh, unconscionable or oppressive; purchasers had notice, the by-laws were applied equally, and the collective choice of lot owners was respected.

Jurisdiction
Australia
Judgment Date
27 May 2020
Procedural Posture
Civil Appeal / Appeal Panel Decision
Outcome
In AP 19/44871, appeal allowed; in AP 19/45615, appeal dismissed.
Legal Topics
['strata Title' 'by Laws' 'strata Schemes Management Act 2015 (nsw)' 'power to Make by Laws' 'by Law Not to Be Harsh, Unconscionable or Oppressive' 'keeping of Animals in Strata Schemes']
['land Law'] ['strata Title' 'by Laws' 'strata Schemes Management Act 2015 (nsw)' 'power to Make by Laws' 'by Law Not to Be Harsh, Unconscionable or Oppressive' 'keeping of Animals in Strata Schemes']

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Procedural Posture

Civil Appeal / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether by-laws prohibiting the keeping of animals are impermissible under the Strata Schemes Management Act 2015 (NSW)' 'Whether such by-laws are harsh, unconscionable or oppressive under ss 139 and 150 of the Strata Schemes Management Act 2015 (NSW)' 'Whether a limitation on the number of animals is harsh, unconscionable or oppressive']

Ratio Decidendi

A by-law prohibiting the keeping of animals, or limiting animals per lot, is not invalid by reason only of its terms under the Strata Schemes Management Act 2015 (NSW). The prohibition or limitation does not, per se, render the by-law harsh, unconscionable or oppressive. Validity depends on consideration of the terms, the history, the circumstances in which the by-law operates, and the applicant's situation. In these cases, there was no objective basis for finding the by-laws harsh, unconscionable or oppressive; purchasers had notice, the by-laws were applied equally, and the collective choice of lot owners was respected.

Court Disposition

In AP 19/44871, appeal allowed; in AP 19/45615, appeal dismissed.

Orders

  • ['AP 19/44871: The appeal is allowed. The order declaring by-law 14 to be invalid is set aside. The application is dismissed. Stay is lifted and Orders 1(a) and (b) are set aside; undertaking remains.' 'AP 19/45615: The appeal is dismissed. Time to comply with the removal order for dog Fergus is extended to 28 days...