Decisions table

PRACTICE AND PROCEDURE – stay application – compulsory appointment of strata manager

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

• Con Hatzigeorgiou lot owner
• The Owners – Strata Plan 71571 owners corp

The Appeal Panel ordered that the Respondent pay the Appellant's costs of the appeal on the ordinary basis, finding special circumstances existed under section 60 of the NCAT Act due to the Respondent's failure to engage appropriately in the appeal process despite the natural justice error being apparent.

• Australia City Properties Management Pty Ltd manager
• The Owners – Strata Plan No 65111 owners corp

Appeal allowed; the Owners Corporation breached clause 10.2 of the Caretaker Agreement by failing to follow required procedures upon termination, and judgment was entered for the strata manager in the sum of $1,007,896.13 for damages for loss of bargain.

• Michael Turek lot owner
• Louise Turek lot owner
• The Owners - Strata Plan No. 70871 owners corp

The Tribunal granted the applicants a licence to store two 240-litre waste bins in the common property bin room for 10 years subject to a monthly licence fee of $50 and specified conditions.

• Tracey Adendorff lot owner
• Michael Adendorff lot owner
• The Owners - Strata Plan No. 16629 owners corp

The costs applications brought by the Owners Corporation were dismissed as the Tribunal was not satisfied that special circumstances warranting an award of costs existed, despite the Lot Owners being unsuccessful in their substantive claims.

• The Owners – Strata Plan No 98970 owners corp
• Capitol Property Services Pty Ltd builder
• Lotus Fund No 9 Pty Ltd developer
• Kunyi Qiu party

The freezing order made on 1 June 2021 was extended until 1 December 2021 upon the plaintiff undertaking to give the usual undertaking as to damages and to commence proceedings under s 37A of the Conveyancing Act in relation to the transfer of Lot 2 from Lotus to Mr Qiu.

• The Owners - Strata Plan No 1813 owners corp
• Sarraf Property Group Pty Ltd lot owner
• Konn Palonis lot owner
• Francis John Keevers lot owner
• Peta Bourke lot owner
• Joanne Fardell lot owner

The Appeal Panel allowed the appeal, set aside the Tribunal's variation of the special levy orders, remitted claims concerning the $980,000 special levy and compulsory strata manager appointment for redetermination, and ordered the respondents to pay the SPG Appellants' costs of the appeal.

• The Owners – Strata Plan No 85561 owners corp
• Omaya Holdings Pty Ltd builder
• Al Maha Pty Ltd developer

The Owners Corporation was entitled to judgment against the builder and developer for $1,212,250 for building defects (flammable cladding and waterproofing) following the builder and developer's default under the settlement agreement in failing to procure HBCF insurance, complete rectification works, and pay instalments.

• The Owners - Strata Plan No 68255 owners corp
• Helena Marie Downs lot owner

The Tribunal ordered Ms Downs to carry out reinstatement works to remove alterations and additions to common property and reinstate it to its previous condition within 12 months, but dismissed the Owners' applications seeking orders to prohibit Ms Downs from exclusively occupying the mezzanine level balconies and Level 5 East Area.

• Caitlin McCue lot owner
• The Owners Strata Plan No 3844 owners corp
• Denise Fisher lot owner

The owners corporation was ordered to repair cracks to the common property bathroom wall of Lot 1 by 29 October 2021 and to pay the applicant $1,650 for repair works already performed due to the owners corporation's breach of its duty under section 106 of the Strata Schemes Management Act 2015.

• Natalia Trentelman lot owner
• The Owners – Strata Plan No 76700 owners corp

The appeal was dismissed; the Tribunal's decision to refuse to vary levies struck between 2015 and 2018 to reflect a subsequent reallocation of unit entitlements was upheld, as the Tribunal's exercise of discretion did not miscarry.

• Marlene Noella Read lot owner
• Mavis Patricia Read lot owner
• The Owners-Strata Plan No 2533 owners corp

The Appeal Panel refused leave to appeal and dismissed the appellants' appeal against the Tribunal's decision not to invalidate resolutions passed at the AGM held on 11 May 2020, despite finding breaches of the Act regarding notice and chairing of the meeting.

• Peter McGrath lot owner
• The Owners – Strata Plan No 13631 owners corp

The appeal was dismissed and the application for costs by the respondent was refused, with each party ordered to pay their own costs of the appeal.

• The Owners – Strata Plan No 89005 owners corp
• Thomas Stromer lot owner
• Simone Stromer lot owner
• Nathan Stromer lot owner
• Farad Electric Co Pty Ltd builder

The court refused the defendants' applications for leave to amend to introduce a limitation defence based on a new construction of the Home Building Act and for leave to file cross-claims against subcontractors, finding the cross-claims insufficiently pleaded and the limitation defence amendment procedurally inappropriate given prior withdrawal.

• The Owners – Strata Plan No 76700 owners corp
• Natalia Trentelman lot owner

Application to extend time to appeal the Tribunal's costs decision was dismissed due to extraordinary delay of over two years with no adequate explanation, despite the appeal having good prospects of success.

• John Thomas Strang lot owner
• Janette Strang lot owner
• The Owners - Strata Plan No. 92709 owners corp

The application was dismissed; the Tribunal found that exclusive use by-laws 130-139 validly shift responsibility for repair and maintenance of the air conditioning system to the lot owner, and the owners corporation has not failed in its obligations regarding common property.

• Peta Athens lot owner
• The Owners – Strata Plan No. 47035 owners corp

The Tribunal ordered by consent that the owners corporation undertake specified remedial works including installation of a canopy and screen and repairs to address water penetration to Lot 42 within 6 months, but dismissed the application to appoint a compulsory strata managing agent.

• Veronica Mastellone lot owner
• The Owners-Strata Plan No 87110 owners corp

The appeal was allowed and the owners corporation was ordered to repaint the ceilings in the bedroom, kitchen and living areas of the lot owner's property within 30 days, as the owners corporation breached its duty to maintain the roof under s 106(1) of the Strata Schemes Management Act, causing water damage to the internal ceilings.

• The Owners – Strata Plan No 31244 owners corp
• Beau Lyon lot owner
• Yu Ren lot owner

The application to extend time to appeal was dismissed because the appellant failed to provide adequate explanation for the three and a half month delay in filing the appeal, had negligible prospects of success, and the new evidence sought to be relied upon was not shown to be unavailable at the time of the original hearing.

• Y E Holdings Pty Limited lot owner
• Keywi Pty Ltd lot owner
• McMatric Investments Pty Ltd lot owner
• The Owners - Strata Plan No. 80877 owners corp

The applicant lot owners' proceedings were dismissed on 4 May 2021, and the tribunal ordered that the applicants pay the respondent's costs as agreed or assessed, finding special circumstances warranted a costs award due to the applicants abandoning substantial parts of their claim and the proceedings lacking tenable basis in fact.

• Natalia Trentelman lot owner
• The Owners – Strata Plan No. 76700 owners corp
• Strata Plus Pty Ltd manager

Strata Plus Pty Ltd appointed as managing agent to arrange payment of judgment debt of $87,786.50 within 3 months and to engage an auditor to conduct a comprehensive audit of the owners corporation's finances within 28 days.

• Peter McGrath lot owner
• The Owners – Strata Plan No 13631 owners corp

The appeal was dismissed as the appellant failed on all grounds, upholding the Tribunal's refusal to admit expert evidence on mould due to non-compliance with Procedural Direction 3.

• Michelle Bradshaw lot owner
• Stephen Cooke lot owner
• The Owners – Strata Plan No 91905 owners corp

Leave to appeal was not granted and the appeal was dismissed; the Tribunal's appointment of Bright & Duggan Pty Ltd as compulsory strata manager was upheld because the appellant failed to provide required documentation under section 237(4) of the Strata Schemes Management Act.

• Jane Huang lot owner
• Andy Giang lot owner
• The Owners Strata Plan No. 65865 owners corp

The Owners Corporation was ordered to pay the applicants $7,730.00 compensation for loss of rent due to failures to repair common property affected by water leaks.

LAND LAW – Strata title – Appointment of compulsory strata managing agent – Limited to functions – Appointment of existing strata managing agent

On the tribunal register; not yet read into parties, outcome, and amount. Read the source decision.

• Martin Gisks lot owner
• The Owners - Strata Plan No. 6743 owners corp

The proceedings were dismissed as the applicant failed to establish that the owners corporation unreasonably refused consent to install solar panels on the garage roof, as the applicant did not provide sufficient technical information, expert evidence, or details required under the statutory provisions.

• Olivera Kencevski lot owner
• The Owners Strata Plan No. 488 owners corp

The Tribunal ordered that the respondent pay the applicant's costs as agreed or as assessed, finding that the rejection of the Special By-law lacked a tenable basis in fact or law and the proceedings were necessitated by the respondent's unreasonable refusal.

• Andrew Mark Sinnett lot owner
• The Owners - Strata Plan No. 92002 owners corp

The Tribunal ordered reallocation of unit entitlements in Strata Plan No 92002 in accordance with the proposed unit entitlements based on the valuation report, finding the existing allocation unreasonable.

• The Owners – Strata Plan No 3004 owners corp
• Ross Harold Smith lot owner
• Jennifer Ann Smith lot owner

The application to extend time for filing the Notice of Appeal was refused and the appeal was dismissed due to substantial delay (5 months), lack of adequate explanation, and the respondents' vested right to retain the benefit of the original decision.

• Benjamin Antoniak lot owner
• Khoa Nguyen lot owner
• The Owners – Strata Plan No 71808 owners corp

The Appeal Panel refused leave to appeal and dismissed the appeal, upholding the Tribunal's decision that no special order for costs should be made despite the appellants' successful claim for appointment of a new strata manager.

• The Owners – Strata Plan No 4159 owners corp
• Dianne Wolff lot owner

The appeal against dismissal of the transfer application was dismissed; the Tribunal's refusal to transfer proceedings to the District Court on grounds of apprehended bias was upheld as correct.

• The Owners - Strata Plan No 1813 owners corp
• Sarraf Property Group Pty Ltd lot owner
• Konn Palonis lot owner
• Francis John Keevers lot owner
• Peta Bourke lot owner
• Joanne Fardell lot owner

The appeal by the lot owners against the Tribunal's decision imposing a special levy of $980,000 and appointing a compulsory strata manager was allowed, with orders set aside and proceedings remitted for redetermination.

• Diane Taylor lot owner
• The Owners Strata Plan No 53919 owners corp

The application was dismissed as the Tribunal found it had no power to make orders against persons not named as parties and could not overturn the committee decision even if members had breached their disclosure obligations under Clause 18.

• Maygood Australia Pty Ltd builder
• The Owners – Strata Plan No 85338 owners corp

The appellant was ordered to pay the respondent's costs of the appeal on the ordinary basis as the respondent was successful in resisting the appeal, with the appellant only achieving a reduction of $5,161.20 on an undisputed point of error.

• Ellen Marie Abraham lot owner
• The Owners Strata Plan No. 61419 owners corp

The Owners Corporation was ordered to make available to the applicant various records and documents including preventative maintenance records, repairs and maintenance records, hazardous goods register, evacuation plans, and access to Mybos computer records that had been wrongfully withheld.

• The Owners Strata Plan no 63731 owners corp
• The Bunker Pty Ltd lot owner

The application by the respondent to summarily dismiss the appeal was dismissed, with the Deputy President finding the appeal was not frivolous, vexatious, or lacking in substance.

• Michelle Gelder lot owner
• The Owners - Strata Plan No 38308 owners corp

The Appeal Panel awarded costs to the appellant lot owner against the owners corporation for both the appeal and first instance proceedings on the basis of special circumstances, and ordered that the owners corporation not levy contributions on the appellant's lot for its costs.

• Martiniano Jake III Neri lot owner
• The Owners - Strata Plan No. 91204 owners corp

By-law 26.4 was declared invalid as the respondent lacked power to make it, and the respondent was ordered to remove parking fee levies from the applicant's owner ledger and refund any amounts paid plus interest.

• The Owners – Strata Plan No 80412 owners corp
• Graham John Vickery lot owner

The appeal by the Owners Corporation was dismissed; the cause of action for breach of statutory duty to maintain common property did not accrue until the 2015 Act commenced on 30 November 2016, so Mr Vickery's application lodged in April 2018 was within the two-year limitation period.

• The Owners – Strata Plan No 87265 owners corp
• Tony Saaib party

The Court varied the costs order to provide that the First Defendant is entitled to indemnity costs from 31 July 2019 based on a valid offer of compromise made on 30 July 2019, and refused the Plaintiff's application for a stay of enforcement of the costs order.

• Greg Charitou lot owner
• The Owners – Strata Plan No 10394 owners corp

The court dismissed the plaintiff's claim for damages for breach of contract, finding he was not entitled to an extension of the completion deadline beyond 1 March 2017 and that the Strata Corporation did not repudiate the contract, and declared the contract validly terminated with the deposit forfeited.

• Natalia Trentelman lot owner
• The Owners – Strata Plan No. 76700 owners corp

The application by Ms Trentelman for a further stay of execution of the injunction and declaratory orders was dismissed, with the effect that orders requiring her to allow the owners corporation and authorised persons access to the swimming pool on Lot 53 came into effect from 21 April 2021 pending determination of her appeal.

• Macey's Group Pty Ltd party
• The Owners – Strata Plan No 33591 owners corp

The application for costs in connection with the proceedings at first instance was dismissed, but the respondent was ordered to pay the appellant's costs of the appeal on an ordinary basis.

• The Owners – Strata Plan No 93543 owners corp
• Hui Zhang lot owner

The defendant was ordered to pay the plaintiff's costs thrown away by the adjournment, assessed as a gross sum of $17,600.

• Anne Lewinsky lot owner
• Sidney Lewinsky lot owner
• Ronald Allen Zucker lot owner
• The Owners - Strata Plan No 85312 owners corp
• Burbank Montague Pty Ltd lot owner
• Gornoa Pty Ltd lot owner

Burbank Montague Pty Ltd and Gornoa Pty Ltd ordered to pay the costs of the applicants for the substantive and interim proceedings on the basis that they acted unreasonably in opposing the appointment of a compulsory strata managing agent and the carrying out of building works.

• The Owners – Strata Plan No 93543 owners corp
• Hui Zhang lot owner
• ZH International Pty Ltd builder

The Court refused the defendant's application to withdraw admissions made in his List Response regarding his status as builder/developer and the Owners Corporation's entitlement to statutory warranties, finding that withdrawal would require adjournment and would be profoundly unjust to the plaintiff.

• Yu Huang lot owner
• Cui'e Zhao lot owner
• The Owners – Strata Plan No 7632 owners corp

The appellants were ordered to pay the costs of the respondent on the basis set out in the legal costs legislation, as the appeals lacked merit and the appellants endeavoured to relitigate and re-agitate matters previously decided adversely to them.

• Owners of Strata Plan No 30791 owners corp
• Albert Bonansea and Ivana Bonansea lot owner
• Angus John Nicholas Brooks lot owner
• Julius Wolfgang lot owner
• Roslyn Bainton lot owner
• Michelle Anne Carruthers lot owner
• Alison Jean Pate lot owner
• Vanessa Claire Winley lot owner
• Southern Cross Constructions (ACT) Pty Ltd builder
• Allianz Australia Insurance Limited insurer
• Hughes Trueman Pty Ltd contractor

Appeal allowed in part against builder and insurer on negligence claim regarding excavation works; apportionment of responsibility determined with builder liable for portion of damage; costs ordered at 75% of first instance and 60% of appeal costs in favour of appellants.

• The Owners – Strata Plan No 30361 owners corp
• Nina Morgan lot owner

The appellant was ordered to pay the respondent's costs of the appeal on an ordinary basis following abandonment of the appeal, as costs follow the event and no compelling reason justified departure from the usual rule.

• Scott McGregor lot owner
• Bernadette Eichner lot owner
• The Owners – Strata Plan No 74896 owners corp

The application by lot owners seeking to keep a pet dog in contravention of by-law 22.2 was dismissed as the by-laws do not permit animal keeping with approval of the owners corporation and no grounds for invalidity were established.