Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250

Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250

A by-law in a strata scheme that imposes a blanket prohibition on the keeping of animals is invalid if it is harsh, unconscionable or oppressive (s 139(1)); such a prohibition is oppressive because it restricts the ordinary incidents of property ownership without providing any material benefit to others and goes beyond what is necessary to protect the use or enjoyment of other lots or common property; administrative convenience does not justify such a restriction.

Jurisdiction
Australia
Judgment Date
12 October 2020
Procedural Posture
Appeal / Decision on Appeal From NCAT Appeal Panel; Application for Leave and Final Resolution
Outcome
Appeal allowed; orders of Appeal Panel set aside; orders of Senior Member to stand; respondent to pay applicants’ costs in this Court.
Legal Topics
['strata Schemes' 'by Laws' 'statutory Interpretation' 'property Rights' 'administrative Law']
['land Law'] ['strata Schemes' 'by Laws' 'statutory Interpretation' 'property Rights' 'administrative Law']

Case Brief

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Procedural Posture

Appeal / Decision on Appeal From NCAT Appeal Panel; Application for Leave and Final Resolution

Legal Issues

  1. 1 ['Whether a by-law imposing a blanket prohibition on keeping animals is harsh, unconscionable or oppressive under s 139(1) Strata Schemes Management Act 2015 (NSW)' 'Scope and limits of by-law making power under s 136 and s 139(1) Strata Schemes Management Act 2015 (NSW)' 'Whether administrative convenience justifies a blanket ban']

Ratio Decidendi

A by-law in a strata scheme that imposes a blanket prohibition on the keeping of animals is invalid if it is harsh, unconscionable or oppressive (s 139(1)); such a prohibition is oppressive because it restricts the ordinary incidents of property ownership without providing any material benefit to others and goes beyond what is necessary to protect the use or enjoyment of other lots or common property; administrative convenience does not justify such a restriction.

Court Disposition

Appeal allowed; orders of Appeal Panel set aside; orders of Senior Member to stand; respondent to pay applicants’ costs in this Court.

Orders

  • ['Grant the applicants leave to appeal from the decision of the Appeal Panel of NCAT given on 27 May 2020.' 'Direct that the applicants file, within 7 days, the draft notice of appeal contained in the white folder.' 'Subject to compliance with order (2), allow the appeal and set aside orders (1)-(6) made by the...