The Owners – Strata Plan No 58068 v Cooper [2020] NSWCATAP 96

The Owners – Strata Plan No 58068 v Cooper [2020] NSWCATAP 96

By-law 14, which imposes a blanket prohibition on keeping animals with the exception of assistance animals, is not harsh, unconscionable or oppressive having regard to its terms, the strata scheme's history, the circumstances in which it came to operate, and the fact that the respondents purchased their lot knowing of the prohibition. The evidence of the particular dog's nature or pet ownership's benefits was insufficient to render the by-law harsh, unconscionable, or oppressive; the Tribunal erred by focusing unduly on such evidence and failing to consider all the relevant facts. Therefore, the appeal is allowed and the orders declaring by-law 14 invalid are set aside.

Parties
Appellant: The Owners – Strata Plan No 58068; First Respondent: Johanna Anwar Cooper; Second Respondent: Leo Bernard Cooper
Jurisdiction
Australia
Judgment Date
27 May 2020
Procedural Posture
Appeal / Final Determination
Outcome
Appeal allowed
Legal Topics
Strata Title, Strata by Laws, Animals in Strata Schemes, Civil Penalties, Procedural Fairness, Costs
Land Law Strata Title Strata by Laws Animals in Strata Schemes Civil Penalties Procedural Fairness Costs

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Parties

The Owners – Strata Plan No 58068

Appellant

Johanna Anwar Cooper

First Respondent

Leo Bernard Cooper

Second Respondent

Procedural Posture

Appeal / Final Determination

Legal Issues

  1. 1 Whether by-law prohibiting the keeping of animals is harsh, unconscionable or oppressive within ss 139 and 150 of the Strata Schemes Management Act 2015 (NSW)
  2. 2 Jurisdiction of Appeal Panel in appeal against civil penalty decision
  3. 3 Procedural fairness in tribunal proceedings

Ratio Decidendi

By-law 14, which imposes a blanket prohibition on keeping animals with the exception of assistance animals, is not harsh, unconscionable or oppressive having regard to its terms, the strata scheme's history, the circumstances in which it came to operate, and the fact that the respondents purchased their lot knowing of the prohibition. The evidence of the particular dog's nature or pet ownership's benefits was insufficient to render the by-law harsh, unconscionable, or oppressive; the Tribunal erred by focusing unduly on such evidence and failing to consider all the relevant facts. Therefore, the appeal is allowed and the orders declaring by-law 14 invalid are set aside.

Court Disposition

Appeal allowed

Orders

  • Orders 1, 2 and 3 of the Tribunal made on 21 November 2019 are set aside.
  • Orders 1 and 2 of the Tribunal made on 6 February 2020 are set aside.