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On 28 April 2017, Kelly + Partners Chartered Accountants hosted their annual Strata in Conversation event in Sydney to which I was privileged join a panel of experts including Amanda Farmer of Lawyers Chambers on Riley and Chris Duggan the SCA (NSW) President.

The conversation centred around practical issues arising from the Strata Schemes Management Act 2015 which came operation in 30 November 2016.

One situation we were asked to consider was “There is a community title estate in Sydney made up of multiple high-rise buildings that bans children under 13 playing on all common property without a resident adult over 21. The common property includes parks, basketball and tennis courts. Residents were anticipated to be singles and couples, but families now constitute the majority of the estate.”

The question the panel had to wrestle with was “this an example of a ‘harsh, unconscionable or oppressive’ by-law?” Bringing into play section 139(1).

In summary Section 139(1) places a restriction on registering a by-law that is unjust… be harsh, unconscionable or oppressive”. Sound like a mind field for future litigation? Does to me. After all is not one person’s “harsh, unconscionable or oppressive” another person’s “reasonable, conscionable and acceptable?”

If the proposed by-law in our example is a blanket ban I suggest it is likely to fall within the restriction the section is designed to prevent but if that is only part of the story, maybe not. Remember our common property is made up of “parks, basketball and tennis courts.” The question I thought about was do any or all of these present a danger to children under 13?

I am going let you think about answer for yourself. Maybe I will provide my views next month.

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