The Owners – Strata Plan No 91157 v Yoolee Holdings Pty Ltd Limited; Yoolee Holdings Pty Limited v The Owners – Strata Plan No 91157 [2020] NSWCATAP 6

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: The Owners – Strata Plan No 91157 v Yoolee Holdings Pty Ltd Limited; Yoolee Holdings Pty Limited v The Owners – Strata Plan No 91157 [2020] NSWCATAP 6 Hearing dates: 18 November 2019 Date of orders: 16 January 2020 Decision date: 16 January 2020 Jurisdiction: Appeal Panel Before: Cole DCJ, Deputy President G Curtin SC, Senior Member Decision: (1) The appeal is allowed to the following extent: (a) Order 1 made on 26 July 2019 by the Tribunal in the Consumer and Commercial Division is set aside. (b) The application by Yoolee in SC 18/18886 under s 232 of the Strata Schemes Management Act 2015 (NSW) for an order directing the Owners Corporation of Strata Plan 91157 to provide consent to the lodgement of a development application under by-law 37.1 is remitted to the Tribunal in the Consumer and Commercial Division for reconsideration having regard to this decision. (c) Order 2 made on 26 July 2019 by the Tribunal in the Consumer and Commercial Division is set aside. (d) The question of whether by-law 8.3, as amended on 29 March 2018, should be declared to be invalid on the basis that it is harsh, unconscionable or oppressive is remitted to the Tribunal in the Consumer and Commercial Division for reconsideration having regard to this decision. (2) The cross appeal by Yoolee Holdings Pty Ltd, by which it was asserted that, contrary to the determination of the Tribunal at first instance, the Tribunal had jurisdiction under s 232(1) and (6) to hear and determine the dispute in relation to the giving or withholding of consent to the development application, is allowed by consent. Catchwords: LAND LAW - Strata title - Owners corporation – By-laws Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Corporations Act 2001 (Cth) Environmental Planning and Assessment Act 1979 (NSW) Environmental Planning and Assessment Regulation 2000 Local Government Act 1993 (NSW) Strata Schemes Management Act 2015 (NSW) Cases Cited: Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd & Ors (2003) 214 CLR 51 Bull v Attorney General for New South Wales (1913) CLR 370 Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400 North Sydney Council v Ligon (1996) 185 CLR 470 Ousley v The Queen (1997) 71 ALJR 1548 Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1 The Owners of Strata Plan No 3397 v Tate [2007] NSWCA 207 Wayde v NSW Rugby League Ltd (1985) 180 CLR 459 Wehbe v Pittwater Council (2007) 156 LGERA 446 Category: Principal judgment Parties: Proceedings AP 19/36275 The Owners - Strata Plan No 91157 (Appellant) Yoolee Holdings Pty Limited (Respondent)