Sik v The Owners – Strata Plan No 58961 [2019] NSWCATAP 63

Sik v The Owners – Strata Plan No 58961 [2019] NSWCATAP 63

The Appeal Panel held that the Tribunal erred in failing to address whether sub-paragraphs (a) and (c)-(e) of Special By-Law 10 were invalid as harsh, unconscionable or oppressive under s 139(1). The Tribunal's failure to determine these sub-paragraphs constituted an error of law. The text of s 139(2) does not invalidate by-laws that merely restrict use of a lot, as the section refers to transfers or dealings, not use. No basis exists for damages for passage of an invalid by-law under the common law or statute.

Parties
Appellants: Virak Sik, Thary Um and Phonrith Um; Respondent: The Owners – Strata Plan No 58961
Jurisdiction
Australia
Judgment Date
20 March 2019
Procedural Posture
Appeal / Appeal From Decision of the Consumer and Commercial Division to the Appeal Panel of NCAT
Outcome
Appeal allowed in part; proceedings remitted for limited consideration; leave to appeal otherwise refused; appeal otherwise dismissed
Legal Topics
Strata Title, By Laws Validity, Restrictive by Laws, Owners Corporation Liability
Land Law Strata Title By Laws Validity Restrictive by Laws Owners Corporation Liability

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Parties

Virak Sik, Thary Um and Phonrith Um

Appellants

The Owners – Strata Plan No 58961

Respondent

Procedural Posture

Appeal / Appeal From Decision of the Consumer and Commercial Division to the Appeal Panel of NCAT

Legal Issues

  1. 1 Whether Special By-Law 10 (prohibited use) is invalid as harsh, unconscionable or oppressive under s 139(1) of Strata Schemes Management Act 2015 (NSW)
  2. 2 Whether the Tribunal erred in not addressing the validity of sub-paragraphs (a) and (c)-(e) of the definition of 'prohibited use'
  3. 3 Whether by-law restricts 'dealing' with a lot under s 139(2) SSMA

Ratio Decidendi

The Appeal Panel held that the Tribunal erred in failing to address whether sub-paragraphs (a) and (c)-(e) of Special By-Law 10 were invalid as harsh, unconscionable or oppressive under s 139(1). The Tribunal's failure to determine these sub-paragraphs constituted an error of law. The text of s 139(2) does not invalidate by-laws that merely restrict use of a lot, as the section refers to transfers or dealings, not use. No basis exists for damages for passage of an invalid by-law under the common law or statute.

Court Disposition

Appeal allowed in part; proceedings remitted for limited consideration; leave to appeal otherwise refused; appeal otherwise dismissed

Orders

  • Appeal allowed in part.
  • The proceedings be remitted to the Consumer and Commercial Division of the Tribunal for determination according to law, by reference to the evidence before the Tribunal at the previous hearing and such further evidence as the parties may seek to adduce in accordance with directions of the Tribunal, of the question:...