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Within our by-laws we have a renovation by-law with a number of sub clauses. Last year two strata lawyers deemed one of the clauses to be unenforceable based on S 139 (being unjust, harsh, unconscioinable or oppressive). In addition the lawyer who wrote the by-law advised the SC that the by-law could be challenged at NCAT. My question is. If one of the sub clauses of the renovation by-law is unenforceable does it mean the whole of the renovation by-law is unenforceable?
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I am not a lawyer and I have not seen the by-law. However, my expectation is that the other clauses of the by-law would be enforceable if they are fairly conventional terms for approval of renovations that many owners corporations would have and they could operate independently of the possibly unenforceable term.
If one of the sub clauses of the renovation by-law is unenforceable does it mean the whole of the renovation by-law is unenforceable?
Section 136 (2) of the Act says: “A by-law has no force or effect to the extent that it is inconsistent with this or any other Act or law.” (My emphasis.)
I would interpret that as meaning it’s only the invalid bits that are invalid
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