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    A dogs day in court

    In October 2020, the NSW Court of Appeal upheld an appeal which could have a long-lasting effect on the future enforceability of some aspects of strata by-law.

    BACKSTORY

    In 2015 Mr & Mrs Cooper purchased an apartment in the upmarket “Horizon” building in Sydney’s Darlinghurst. The Cooper’s purchased their apartment with the knowledge that the prestige apartment block had an existing strata by-law prohibiting the keeping of any pets on the premises. At the time of their purchase, the dog owning couple apparently assumed that it was an “antiquated by-law”.

    Only months after moving in the Cooper’s attempted to have the by-law changed at an extraordinary general meeting of owners. Their motion was defeated by approximately 90% of the voting owners.

    Nonetheless, the Cooper’s unlawfully moved their pet dog into their apartment and for two years their dog was seemingly undetected.

    That was until October 2018 when returning from the Vet with her frail dog, the dog urinated on the ground floor foyer tiles whilst Mrs Cooper waited with her dog for a lift.  Although the Cooper’s cleaned up the spillage, the incident galvanised the Owners Corporation into action and multiple notices were issued forbidding the walking or carrying of a dog through the common areas and also from being domiciled on the premises. Failure by the Cooper’s to remove their dog eventually resulted in the owners’ corporation pursuing legal action to enforce their by-law.

    In November 2019, the dispute went before the NSW Civil and Administrative Tribunal (NCAT) which found in favour of the Cooper’s, ruling that the strata by-law was “harsh, unconscionable and oppressive”.

    The owners’ corporation successfully appealed the verdict to a higher NCAT panel in May 2020, and the Cooper’s were instructed to remove their dog from the “Horizon” building.

    The Cooper’s decided upon one further throw of the dice and sought leave to appeal the most recent judgement in the NSW Court of Appeal in September 2020.  During the interim period, the Cooper’s dog could remain in residence pending the decision of the Court of Appeal.

    In its October decision, the NSW Court of Appeal by a majority verdict found in favour of the Cooper’s dog remaining in residence at the “Horizon” building.

    In attempting to defend their strata by-law position, the “Horizon” Owners’ Corporation has reportedly spent over $150,000.

    WHAT IS THE FALLOUT?

    A logical extension of the NSW Court of Appeal’s verdict is that certain strata by-laws are not legally enforceable, particularly if they can be shown to be “harsh, unconscionable and oppressive”.  Given that strata by-laws are local laws pertaining to a specific strata complex, voted on by the owners within that strata complex and require a minimum of a 75% majority vote to enable the by-law to come into force, it would seem that the Court’s decision to overrule at the very least flies in the face of what would normally be regarded as a perfectly acceptable democratic process.  However, for the time being that is how it stands.

    We suspect that the fight is not over and maybe a peak body such as the Owners Corporation Network or some other group will seek to challenge the verdict in the High Court.

    If you have a question or an issue with your Strata Scheme consider contacting & Legal for advice and assistance.



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