The Owners – Strata Plan No 55773 v Roden; Spiers v The Owners – Strata Plan No 77953 [2020] NSWCATAP 95

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: The Owners – Strata Plan No 55773 v Roden; Spiers v The Owners – Strata Plan No 77953 [2020] NSWCATAP 95 Hearing dates: 11 December 2019 Date of orders: 27 May 2020 Decision date: 27 May 2020 Jurisdiction: Appeal Panel Before: Armstrong J, President M Harrowell, Deputy President L Wilson, Senior Member Decision: In appeal AP 19/44871 the Appeal Panel makes the following orders: (1) The appeal is allowed and the order declaring by-law 14 to be invalid made in application SC 18/37522 on 18 September 2019 is set aside. (2) In lieu thereof the application is dismissed. (3) In respect of the orders made by the Appeal Panel on 17 October 2019: (a) the stay is lifted and Orders 1 (a) and (b) are set aside; and (b) otherwise, the undertaking provided by the Owners Corporation (1(c)) remains in effect.

In appeal AP 19/45615 the Appeal Panel makes the following orders: (1) The appeal is dismissed. (2) The time to comply with order 1 made on 11 September 2019 in application SC 19/16600 (removal of the dog Fergus) is extended to 28 days from the date of these orders. (3) Liberty for either party to apply in respect of order 2.

In respect of costs, the following directions are made in each appeal: (1) Any applicant for costs (costs applicant) is to file and serve such application and relevant submissions and evidence within 14 days from the date of these orders; (2) Any reply, including evidence and submissions, to the application is to be filed and served within 21 days from the date of these orders; (3) The cost applicant is to file and serve any response within 28 days from the date of these orders. (4) The submissions are to include submissions about whether an order dispensing with a hearing should be made under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). Catchwords: LAND LAW – Strata title – Strata Schemes Management Act 2015, ss 136, 139,150 – By-laws – Power to make by-laws – By-law not to be harsh, unconscionable or oppressive – Whether by-laws prohibiting the keeping of animals and/or regulating the number of animals that can be kept is harsh, unconscionable or oppressive Legislation Cited: Body Corporate and Community Management Act 1997 (Qld) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Disability Discrimination Act 1992 (Cth) Interpretation Act 1987 (NSW) Strata Schemes Development Act 2015 (NSW) Strata Schemes (Freehold Development) Act 1973 (NSW) (Repealed) Strata Schemes Management Act 1996 (NSW) (Repealed) Strata Schemes Management Act 2015 (NSW) Strata Schemes Management Regulation 2016 (NSW) Strata Schemes Management Regulation 2010 (NSW) (Repealed) Strata Titles Act 1973 (NSW) (Repealed) Cases Cited: Ainsworth v Albrecht [2016] HCA 40 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 Attorney General for New South Wales v Melco Resorts & Entertainment Ltd [2020] NSWCA 40 Bapson Pty Ltd v Puyeti Pty Ltd (unreported) NSWSC 24 May 1990, BC900245 Casuarina Rec Club Pty Limited v The Owners – Strata Plan 77971 [2011] NSWCA 159 Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd [2012] HCA 55, 250 CLR 503 Commissioner of Taxation v BHP Billiton Ltd (2011) 244 CLR 325; [2011] HCA Coverdale v West Coast Council (2016) 259 CLR 164; [2016] HCA 15 Hope v The Council of the City of Bathurst [1980] HCA 16; (1980) 144 CLR 1 London Association of Shipowners and Brokers v London and India Docks Joint Committee [1892] 3 Ch 242 Mineralogy Pty Ltd v The Body Corporate for "The Lakes Coolum" [2002] QCA 550 Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 Owners – Strata Plan No 58068 v Cooper [2019] NSWCATCD 62 Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 Roden v The Owners – Strata Plan No. 55773 [2019] NSWCATCD 61 Salerno v Proprietors of Strata Plan No 42724 (1997) 8 BPR 15,457 Sydney Diagnostic Services Pty Ltd v Hamlena Pty Ltd and Another(1991) 5 BPR 11,432 Suttor v Gundowda Pty Ltd (1950) 81 CLR; [1950] HCA 35 The Owners – Strata Plan No. 77938 v Spiers, 11 September 2019 (unreported) White v Betalli & 1 Or [2006] NSWSC 537 White v Betalli [2007] NSWCA 243; (2007) 71 NSWLR 381 Yardy v Owners Corporation SP 57237 [2018] NSWCATCD 19 Young v Owners – Strata Plan No 3529 [2001] NSWSC 1135; (2001) 54 NSWLR 60 Category: Principal judgment Parties: AP 19/44871