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

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: The Owners – Strata Plan No 63731 v B & G Trading Pty Ltd [2020] NSWCATAP 202 Hearing dates: 1 June 2020 Date of orders: 30 September 2020 Decision date: 30 September 2020 Jurisdiction: Appeal Panel Before: T Simon, Principal Member G Curtin SC, Senior Member Decision: (1) Appeal allowed. (2) The orders made by the Tribunal are set aside. (3) In lieu thereof, order the respondents 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. (4) If any party desires to make an application for costs of the appeal: (a) that party is to so inform the other parties within 14 days of the date of these reasons; (b) the applicant for costs is to lodge with the Appeal Panel and serve on the respondent to the costs application any written submissions of no more than five pages on or before 14 days from the date of these reasons; (c) the respondent to any costs application is to lodge with the Appeal Panel and serve on the applicant for costs any written submissions of no more than five pages on or before 28 days from the date of these reasons; (d) any reply submissions limited to three pages are to be lodged with the Appeal Panel and served on the other party within 35 days of the date of these reasons; (e) the parties are to indicate in their submissions whether they consent to an order dispensing with an oral hearing of the costs application, and if they do not consent, submissions of no more than one page as to why an oral hearing should be conducted rather than the application being determined on the papers. Catchwords: LAND LAW – strata title – by-laws – whether by-law was a common property rights by-law – whether "special privileges" in s 142(2) of the Strata Schemes Management Act 2015 (NSW) includes purported exemption from compliance with the obligations imposed by s 108 – by-law cannot provide exemption from obligations imposed by s 108 – s 111 of the Strata Schemes Management Act 2015 (NSW) subordinate to s 108 - difference between "validity" and "of no force or effect" Legislation Cited: Interpretation Act 1987 (NSW), s 30(1)(c) Strata Schemes Management Act 1996 (NSW), ss 43(4), 65A Strata Schemes Management Amendment Act 2004 (NSW), Schedule 1, cl 11 Strata Schemes Management Act 2015 (NSW), ss 108(2), 109, 110, 111, 136(2), 142(b), 153(1), Schedule 3 cl 4(2) Cases Cited: Alphapharm Pty Ltd v H Lundbeck A/S [2014] HCA 42; (2014) 254 CLR 247 C v W [ [2015] NSWSC 1774 CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 Moloney v Taylor [2016] NSWCA 199 Noon v The Owners - Strata Plan No. 22422 [2014] NSWSC 1260 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Re R [2000] NSWSC 886 Singh bhnf Ambu Kanwar v Lynch [2020] NSWCA 152 Stolfa v The Owners - Strata Plan 4366 [2009] NSWSC 589 Stolfa v Hempton [2010] NSWCA 218 White v Betalli [2006] NSWSC 537; (2006) 66 NSWLR 690 Texts Cited: D C Pearce and R S Geddes, Statutory Interpretation in Australia, 8th ed., LexisNexis Butterworths, 2014 Category: Principal judgment 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) Representation: Counsel: Dr C J Birch SC, D Meyerowitz-Katz (Appellant) T Lynch SC, B Bradley (Second and Third Respondents)