Sik v The Owners – Strata Plan No 58961 [2019] NSWCATAP 63

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sik v The Owners – Strata Plan No 58961 [2019] NSWCATAP 63 Hearing dates: 14 February 2019 Date of orders: 20 March 2019 Decision date: 20 March 2019 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member D A C Robertson, Senior Member Decision: (1) Appeal allowed in part.

(2) The proceedings be remitted to the Consumer and Commercial Division of the Tribunal for determination according to law, by reference to the evidence before the Tribunal at the previous hearing and such further evidence as the parties may seek to adduce in accordance with directions of the Tribunal, of the question:

Whether any of sub-paragraphs (a) or (c) to (e) of the definition of "prohibited use" in Clause B of Special By-Law 10 registered as a by-law of Strata Plan 58961 on 20 February 2018 is invalid as harsh, unconscionable or oppressive contrary to sub-section 139(1) of the Strata Schemes Management Act 2015 (NSW).

(3) Leave to appeal on a ground other than a question of law is refused.

(4) The appeal is otherwise dismissed. Catchwords: LAND LAW – Strata title – By-laws – validity of by-law restricting the use of a lot LAND LAW – Strata title – owners corporation – liability of owners corporation – no cause of action lies for breach of statutory duty in respect of passage of invalid by-law WORDS AND PHRASES – "dealing" Legislation Cited: Real Property Act 1900 (NSW) Strata Schemes Management Act 1996 (NSW) Strata Schemes Management Act 2015 (NSW) Cases Cited: CG Constructions Pty Ltd v Hanson Constructions Materials Pty Ltd [2017] NSWCATAP 130 Collins v Urban [2014] NSWCATAP 17 Cominos v De Rico [2016] NSWCATAP 5 Estens v Owners Corporation SP 11825 [2017] NSWCATCD 63 John Maait Properties v The Owners – Strata Plan No 50396 [2019] NSWCATAP 20 Northern Territory v Mengel (1995) 185 CLR 307 The Owners Strata Plan No 50276 v Thoo [2013] NSWCA 270 Profitability Consulting v Thorpe [2019] NSWCATAP 20 Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 Category: Principal judgment Parties: Virak Sik, Thary Um and Phonrith Um (Appellants) The Owners – Strata Plan No 58961 (Respondent) Representation: D Ross (Accountant) (Appellants) N Newmarch (Strata Manager) (Respondent) File Number(s): AP 18/47989 Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 29 October 2018 Before: J Levingston, General Member File Number(s): SC 18/22174