The Community Association DP 270427 v Kazagrandi; Kazagrandi v The Community Association DP 270427 [2024] NSWCATCD 8

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: The Community Association DP 270427 v Kazagrandi; Kazagrandi v The Community Association DP 270427 [2024] NSWCATCD 8 Hearing dates: 27 October 2023 Date of orders: 02 January 2024 Decision date: 02 January 2024 Jurisdiction: Consumer and Commercial Division Before: D G Charles, Senior Member Decision: 1. In the proceeding constituted by file no CL 23/03634, pursuant to sections 190 and 193 of the Community Land Management Act 2021 NSW, the Tribunal orders that the respondents, Igor Kazagrandi and Inna Kazagrandi must: a) comply with By-Law 11.4 of the Community Management Statement and remove immediately the boat trailer, which is registered in the name of the first respondent, and b) not park a boat trailer in contravention of the Community Management Statement By-Law 11.4. 2. The proceeding constituted by file no CL 23/37840 is dismissed. 3. If a party in either proceeding seeks an order for costs leave is granted to file and serve short written submissions (no more than 5 A4 size pages) on that issue only within 14 days of the date of these orders. 4. Leave is granted to the other party to file and serve short written submissions in reply (no more than 5 A4 size pages) on that issue only within a further period of 14 days. 5. A costs' applicant may file and serve any written submission, strictly in response to the other parties' written submissions in reply (such response to be no more than 3 A4 size pages) within a further period of 7 days. 6. In any such submissions the parties are to address the matter of whether pursuant to the provisions of the Civil and Administrative Tribunal Act 2013 NSW, s 50(2), the Tribunal should dispense with a hearing on the issue of costs so that the issue is decided on the papers lodged with the Tribunal and with appearances of the parties not required. Catchwords: COMMUNITY SCHEME – boat and trailer permanently parked by lot owners on lot property subject to a parking easement – application of Community Management Statement – application of by-law prohibiting parking of heavy vehicles – whether by-law uncertain – whether by-law harsh unconscionable or oppressive – whether there are discretionary reasons why the by-law should not be enforced against the lot owners. Legislation Cited: Community Land Management Act 2021 NSW Strata Schemes Management Act 2015 NSW Civil and Administrative Tribunal Act 2013 NSW Cases Cited: Upper Hunter District Council v Australian Chilling and Freezing Co Ltd [1968] HCA 8; (1968) 118 CLR 429 The Owners of Strata Plan No 3397 v Tate [2007] NSWCA 207 Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250; 103 NSWLR 160 Texts Cited: Heydon, Leeming and Turner, Meagher, Gummow & Lehane's Equity – Doctrines & Remedies (5th ed, Lexis Nexis, 2015) Category: Principal judgment Parties: The Community Association DP 270427 (Applicant in CL 23/03634, Respondent in CL 23/37840)