The Owners – SP No 91684 v Liu; The Owners – SP No 90189 v Liu [2022] NSWCATAP 1

The Owners – SP No 91684 v Liu; The Owners – SP No 90189 v Liu [2022] NSWCATAP 1

The appeals were dismissed because the Tribunal did not misdirect itself in applying s 150 of the Strata Schemes Management Act 2015 (NSW). It was open to find clause 10(b) harsh, unconscionable or oppressive because deactivating access devices removed an important property right without preconditions or limits. Clause 10(e) was beyond power because amounts arising from breaches of the short-term rental by-law could not be characterised or recovered as strata levy debts absent statutory power. The Tribunal did not err in refusing severance because the remaining by-law would not necessarily be the by-law passed by special resolution. No procedural fairness error was established, and leave...

Jurisdiction
Australia
Judgment Date
05 January 2022
Procedural Posture
Appeal Concerning Validity of Strata Scheme by Laws Relating to Short Term Rental Accommodation / Appeal Panel Appeal From Consumer and Commercial Division Decision Dated 17 August 2021
Outcome
Appeals dismissed; stays lifted; costs submissions timetable set.
Legal Topics
['validity of by Law' 'short Term Rental Accommodation' 'harsh, Unconscionable or Oppressive by Law' 'by Law Beyond Power' 'severability' 'procedural Fairness' 'leave to Appeal on Findings of Fact']
['land Law' 'strata Schemes' 'administrative Law'] ['validity of by Law' 'short Term Rental Accommodation' 'harsh, Unconscionable or Oppressive by Law' 'by Law Beyond Power' 'severability' 'procedural Fairness' 'leave to Appeal on Findings of Fact']

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Procedural Posture

Appeal Concerning Validity of Strata Scheme by Laws Relating to Short Term Rental Accommodation / Appeal Panel Appeal From Consumer and Commercial Division Decision Dated 17 August 2021

Legal Issues

  1. 1 ['Whether the Tribunal applied the correct test in finding clause 10(b) of the by-law harsh, unconscionable or oppressive.' 'Whether the Tribunal applied the correct test in finding clause 10(e), which treated cost recovery as a levy debt, beyond power.' 'Whether invalid parts of the by-law could be severed so that the balance remained valid.' 'Whether the Tribunal failed to accord procedural fairness by not taking account of material submissions.' 'Whether leave should be granted to challenge factual findings or omissions.']

Ratio Decidendi

The appeals were dismissed because the Tribunal did not misdirect itself in applying s 150 of the Strata Schemes Management Act 2015 (NSW). It was open to find clause 10(b) harsh, unconscionable or oppressive because deactivating access devices removed an important property right without preconditions or limits. Clause 10(e) was beyond power because amounts arising from breaches of the short-term rental by-law could not be characterised or recovered as strata levy debts absent statutory power. The Tribunal did not err in refusing severance because the remaining by-law would not necessarily be the by-law passed by special resolution. No procedural fairness error was established, and leave...

Court Disposition

Appeals dismissed; stays lifted; costs submissions timetable set.

Orders

  • ['In matter 2021/00262738: the appeal is dismissed.' "In matter 2021/00262738: the stay of the Tribunal's orders granted 29 September 2021 is lifted." 'In matter 2021/00262728: the appeal is dismissed.' "In matter 2021/00262728: the stay of the Tribunal's orders granted 29 September 2021 is lifted." 'The Respondent...