The Owners – Strata Plan No 58068 v Cooper [2020] NSWCATAP 96

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: The Owners – Strata Plan No 58068 v Cooper [2020] NSWCATAP 96 Hearing dates: 2 April 2020 Date of orders: 27 May 2020 Decision date: 27 May 2020 Jurisdiction: Appeal Panel Before: Armstrong J, President M Harrowell, Deputy President Decision: In SC19/24722 and SC19/18982: (1) The appeal is allowed. (2) Orders 1, 2 and 3 of the Tribunal made on 21 November 2019 are set aside. (3) Orders 1 and 2 of the Tribunal made on 6 February 2020 are set aside.

In SC 19/24722: (4) An order pursuant to s 156 of the Strata Schemes Management Act 2015 (NSW) that the respondents, Johanna Anwar Cooper and Leo Bernard Cooper, remove or cause to be removed the miniature schnauzer dog called 'Angus' from their lot in strata scheme 58058 within 28 days of these orders, and keep such animal away from their lot and common property.

In SC19/18982: (5) The appellant is to advise the Appeal Panel within 7 days whether it seeks an order for remittal of the proceedings in so far as it relates to the application for a civil penalty contravention under Div 4 of Pt 7 of the Strata Schemes Management Act 2015 (NSW) concerning the notice to comply given by the appellant to the first respondent Johanna Cooper on 18 March 2019.

In SC19/18982, SC19/24722, AP20/55887: (6) In respect of costs, we make the following directions: (a) 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; (b) Any reply, including evidence and submissions, to the applicant is to be filed and served within 21 days from the date of these orders; (c) The cost applicant is to file and serve any response within 28 days from the date of these orders; (d) 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-law prohibiting the keeping of animals is harsh, unconscionable or oppressive – Proceedings for imposition of civil penalty – Jurisdiction of Appeal Panel in appeal against civil penalty decision Legislation Cited: Body Corporate and Community Management Act 1997 (Qld) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Regulation 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Contracts Review Act 1980 (NSW) Interpretation Act 1987 (NSW) Strata Schemes Management Act 2015 (NSW) Strata Schemes Management Regulation 2016 (NSW) Strata Schemes Development Act 2015 (NSW) Strata Schemes Management Act 1996 (NSW) (repealed) Strata Schemes Management Regulation 2010 (NSW) (repealed) Strata Titles Act 1973 (NSW) (repealed) Supreme Court Act 1970 (NSW) Cases Cited: Ainsworth v Albrecht [2016] HCA 40 D'Amore v Independent Commission Against Corruption [2013] NSWCA 187 Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25 Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 The Owners – Strata Plan 55773 v Roden; Spiers v The Owners – Strata Plan 77953 [2020] NSWCATAP 95 Roden v The Owners – Strata Plan No 55773 [2019] NSWCATCD 61 The Owners of Strata Plan No 3397 v Tate [2007] NSWCA 207 Yardy v Owners Corporation Strata Plan 57237 [2018] NSWCATCD 19 The Owners – Strata Plan No 58068 v Cooper [2019] NSWCATCD 62 White v Betalli (2007) 71 NSWLR 381; [2007] NSWCA 243 Young v Owners – Strata Plan No 3529 (2001) 54 NSWLR 60; [2001] NSWSC 1135 Category: Principal judgment Parties: The Owners – Strata Plan No 58068 (Appellant) Johanna Anwar Cooper (First Respondent) Leo Bernard Cooper (Second Respondent) Representation: Counsel: G A Sirtes SC with L M Johnston (Appellant) V F Kerr SC (Respondents)