#13480

If a scheme was registered before the commencment of s42, then subject to any additions, amendments or repeals, the schedule 1 by-laws are the ones that apply: see s42 SSMA.

if a scheme is registered after the commencment of s41, the by-laws that apply are the chosen set from the Regulation unless amended, etc: see s8(4B) of the SSFDA. As I read s8(4B) (being careful not to assume anything Mr Moderator) a strata scheme cannot be regulated with no by-laws, which is a blow to the libertarians among us, but there you go.

Note that there are two main acts: the Strata Schemes Management Act and the Strata Schemes (Freehold Development) Act.  There is also a Leasehold Devpt Act, and various regs.  Community schemes have their own suite of legislation, which is from time to time surprisingly different from the strata legislation with no clear reason.

The term 'model by-laws' appears in the Regulation and in the SSFDA and probably elsewhere as well – in the 2005 reg.

A recent case which emphasises the broad scope of the power to make by-laws is Casuarina Rec Club Pty Limited v The Owners – Strata Plan 77971 [2011] NSWCA 159 (24 June 2011).

Casuarina gives the by-laws as registered with a scheme a privileged position: it says that they will be very hard to set aside.  It also says that a provision in the form of a model by-law cannot be held to be ultra vires, and that a by-law dealing with the same subject matter as a model by-law is in the same situation. 

Almost finally, Mr Administrator observes:

“But it makes me think that every opportunity that exists to complicate something that should be simple is leapt upon by our legislators.”  This is, of course, true, and it is part of the majesty of the governments of New South Wales.  Thing how boring it would be if we all knew where we stood in relation to the law governing strata.

Truly finally, the only way to be sure which by-laws apply is to check with the LPMA as to the by-laws registered for your stata scheme.