The Owners – Strata Plan No 63731 v B & G Trading Pty Ltd [2020] NSWCATAP 202

The Owners – Strata Plan No 63731 v B & G Trading Pty Ltd [2020] NSWCATAP 202

By-law 32 does not confer the 'special privilege' of exemption from s 108 statutory requirements, and to the extent it purports to do so, it is inconsistent with the Strata Schemes Management Act 2015 (NSW) and has no force or effect. The Act permits only specified carve-outs for cosmetic and minor renovations; broader exemptions by common property rights by-laws are not intended.

Parties
Appellant: The Owners – Strata Plan No 63731; First Respondent: B & G Trading Pty Ltd; Second Respondent: The Bunker 2017 Pty Ltd; Third Respondent: SRSJ Management Pty Ltd
Jurisdiction
Australia
Judgment Date
30 September 2020
Procedural Posture
Appeal / Determination of Appeal
Outcome
Appeal allowed
Legal Topics
Strata Title, By Laws, Statutory Interpretation, Common Property Rights, Special Privileges, Inconsistency Between by Laws and Statute
Land Law Strata Title By Laws Statutory Interpretation Common Property Rights Special Privileges Inconsistency Between by Laws and Statute

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Parties

The Owners – Strata Plan No 63731

Appellant

B & G Trading Pty Ltd

First Respondent

The Bunker 2017 Pty Ltd

Second Respondent

SRSJ Management Pty Ltd

Third Respondent

Procedural Posture

Appeal / Determination of Appeal

Legal Issues

  1. 1 Whether by-law 32 was a common property rights by-law within s 142(b) of Strata Schemes Management Act 2015 (NSW)
  2. 2 Whether 'special privileges' in s 142(2) includes exemption from compliance with obligations imposed by s 108
  3. 3 Whether by-law 32 was inconsistent with s 108 and thus of no force or effect

Ratio Decidendi

By-law 32 does not confer the 'special privilege' of exemption from s 108 statutory requirements, and to the extent it purports to do so, it is inconsistent with the Strata Schemes Management Act 2015 (NSW) and has no force or effect. The Act permits only specified carve-outs for cosmetic and minor renovations; broader exemptions by common property rights by-laws are not intended.

Court Disposition

Appeal allowed

Orders

  • The orders made by the Tribunal are set aside.
  • Respondents are to restore the common property the subject of the work referred to at [10] of the Tribunal's reasons at first instance to the condition it was in prior to the commencement of those works on or before 1 February 2021.