Decisions table

• The Owners – Strata Plan No 87265 owners corp
• Tony Saaib builder
• Irena Alexandrova contractor

The claim against Saaib was dismissed, but judgment was entered in favour of the Owners Corporation against Alexandrova for $3,425,583.54 for misleading and deceptive conduct in relation to home warranty insurance for defective building work.

CONTRACT – formation and validity – proposal by owner of development lots to convert lots into non-strata blocks and build townhouses of specified height – cooperation of strata corporation required – development lot owner promised proposal would result in continuing access for strata owners to swimming pool on her land – resolution passed at general meeting – no contractual effect ESTOPPEL – proprietary estoppel – encouragement – detrimental reliance – whether lot owner’s promise made to strata

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

• The Bunker Pty Ltd lot owner
• The Owners – Strata Plan No. 63731 owners corp
• McCormack's NSW Pty Ltd trading as McCormack's Strata Management manager
• Wellman Strata Management Pty Ltd manager

The Tribunal appointed Wellman Strata Management Pty Ltd as strata managing agent for 2 years to exercise all functions of the strata committee relating to lots 148 and 167, finding the owners corporation's management was not functioning satisfactorily due to improper use of powers and failure to perform maintenance duties.

• Jan Newland lot owner
• LD Beston (Aust) Pty Ltd party
• Richard Dalimore lot owner
• The Owners – Strata Plan No. 576 owners corp
• Vital Strata Management Pty Ltd manager
• Dee Mahon lot owner
• Natalie Helm lot owner
• Deborah Bassett lot owner
• Yucon Zhang lot owner
• Xian Zhang lot owner
• Descol Pty Ltd party
• Benoit de Tarle lot owner

The Tribunal corrected an obvious error in its previous orders by directing that the compulsory strata manager appointment be amended to explicitly confer all functions of the Owners Corporation on the appointed strata managing agent.

• Thomas Rosenthal lot owner
• Joanne Rosenthal lot owner
• The Owners - Strata Plan No. 20211 owners corp

The Tribunal ordered the Owners Corporation to rectify and complete specified waterproofing and related defects affecting the applicants' penthouse lot, with work to commence by 16 March 2021 and be completed within 6 weeks, carried out by appropriately licensed and qualified persons.

• The Owners – Strata Plan No 55682 owners corp
• W. R. Berkley Insurance (Europe), PLC insurer
• Berkley Insurance Company insurer
• HHIA Pty Ltd party
• Mr D Hynes party
• Ms L Honeychurch party
• Westcourt General Insurance Broker Pty Ltd contractor
• QUS PTY LTD party

The court declined to make a Sanderson order requiring the unsuccessful brokers and licensee defendants to pay the insurer's costs of the cross-claim, finding it unreasonable given the limitations issues that made the cross-claim likely to fail irrespective of other circumstances.

• The Owners – Strata Plan No 55682 owners corp
• W. R. Berkley Insurance (Europe), PLC insurer
• Berkley Insurance Company insurer
• HHIA Pty Ltd contractor
• Mr D Hynes party
• Ms L Honeychurch party
• Westcourt General Insurance Broker Pty Ltd contractor
• QUS PTY LTD party

The court awarded judgment to the plaintiff against the brokers and licensee for $739,393.95 but dismissed claims against the insurer and Ms Honeychurch; costs orders made with the unsuccessful defendants to pay the insurer's costs, the plaintiff to pay Ms Honeychurch's costs, and the cross-claimant to pay the cross-defendant's costs.

• The Owners - Strata Plan No. 568 owners corp
• Stan Levitin lot owner
• Doris Levitin lot owner

The Tribunal prescribed a common property rights by-law giving retrospective consent to the Lot owners' kitchen renovation works, but dismissed the owners corporation's application for restoration of common property and the Lot owners' application for compulsory appointment of a strata manager.

• Australia City Properties Management Pty Ltd lot owner
• Bo Yun Wang lot owner
• The Owners - Strata Plan No. 65111 owners corp

The Court determined that the first plaintiff's loss of bargain damages claim failed but succeeded in obtaining possession of Lot 179 with monetary judgment of $32,896.13; the Owners Corporation's cross-claim was entirely dismissed; costs were ordered to be split between the parties based on separate issues with each party bearing their own costs on the costs application.

• The Owners - Strata Plan No. 56587 owners corp
• Tanya Jane White lot owner

The respondent was ordered to remove and keep away her two large dogs from the strata scheme by 29 February 2021 as they breached the by-laws requiring prior written permission and constituted a nuisance through excessive barking and odour.

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

The application for a different costs order was refused and the appellants were ordered to pay the respondents' costs of the appeal on the ordinary basis.

• Macey's Group Pty Ltd lot owner
• Owners – Strata Plan No 33591 owners corp

The appeal was allowed and orders for repeal of Special By-Law 8 were set aside, with the application dismissed, on the basis that the lot owner's refusal to consent to the repeal was not unreasonable.

• Hugo Loneragan lot owner
• The Owners - Strata Plan No 16519 owners corp

The Appeal Panel ordered Mr Loneragan to pay the Owners Corporation's costs of the appeal but declined to determine the costs application for the proceedings at first instance.

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

The appeals from the Tribunal's orders requiring the lot owners to remove unauthorised bathroom renovations to common property and pay the owners corporation's costs were dismissed.

• Taylor Construction Group Pty Ltd builder
• Frasers Putney Pty Ltd developer
• The Owners - Strata Plan No 92888 owners corp

The appellants were ordered to pay the respondent's costs of the appeal on the ordinary basis as agreed or as assessed, as the respondent was entirely successful in opposing the appeal concerning removal of Biowood cladding attachments from the building facade.

• The Owners – Strata Plan No 55682 owners corp
• W. R. Berkley Insurance (Europe), PLC insurer
• Berkley Insurance Company insurer
• HHIA Pty Ltd manager
• Mr D Hynes party
• Ms L Honeychurch party
• Westcourt General Insurance Broker Pty Ltd contractor
• QUS PTY LTD party

The court found the Insured breached its duty of disclosure regarding the Nomads Motorcycle Club's occupation of Unit 2, entitling the Insurer to reduce liability; claims against brokers for negligence were partially successful with liability apportioned.

• The Owners – Strata Plan No 63731 owners corp
• B & G Trading Pty Ltd party
• The Bunker 2017 Pty Ltd party
• SRSJ Management Pty Ltd party

The Appeal Panel ordered that the second and third respondents pay the appellant's costs of the appeal, finding that the novel and complex statutory construction issues regarding the SSMA 2015 and strata scheme by-laws constituted special circumstances warranting a costs award.

JUDICIAL REVIEW – complying development certificate (CDC) – tenancy fitout as a pizza shop – shop in strata-titled building – works required in common property to make pizza shop functional – land on which development to be carried out – whether lot only or also common property – whether owner’s consent of Owners Corporation needed for application – whether sham application if no works proposed in common property – type of complying development – internal building alteration and/or change of use

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

• Ericon Buildings Pty Limited builder
• Sundale Developments Pty Limited developer
• The Owners - Strata Plan No 96597 owners corp

The Appeal Panel refused leave to appeal and dismissed the appellants' appeal against the Principal Member's orders that had directed a transfer application hearing and pre-trial directions, finding no error of law and that the Principal Member did not reject the builders' proposed consent judgment orders but merely adjourned their consideration pending the transfer application hearing.

• Thomas Rosenthal lot owner
• Jo-Anne Rosenthal lot owner
• The Owners – Strata Plan No 20211 owners corp

The appeal was allowed and orders 1 and 2 made on 28 August 2020 were set aside as the Tribunal had made an access order without affording the parties an opportunity to be heard, constituting an error of law.

APPEAL – appeal from a cost order made under s 60 of the Civil and Administrative Tribunal Act 2013.

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

• Rodney Khoury lot owner
• Rose Khoury lot owner
• The Owners – Strata Plan No. 4115 owners corp

The appeal against the Tribunal's rejection of the appellants' application for costs was dismissed; the invoices paid from the trust account were found to be the respondent's costs of the proceedings, not the appellants' costs, and therefore not recoverable by the appellants in a costs application.

• The Owners – Strata Plan No 94267 owners corp
• DEC Engineering & Construction Pty Ltd builder
• New Golden International Group Pty Ltd developer
• Tangxin Dan party
• Hanhu Dan party

The application for security for costs filed by the Developer was dismissed on the basis that the Developer was in substance seeking security for the costs of its own cross-claim rather than the Builder's cross-claim.

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

The appeal was allowed in part; the judgment amount was reduced from $71,742.71 to $66,581.51 by removing builders margin and GST on the tile rectification costs, with all other grounds of appeal dismissed.

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

The Court of Appeal allowed the appeal and held that NCAT has jurisdiction and power to award damages for breach of section 106(5) of the Strata Schemes Management Act 2015, remitting the matter to the Appeal Panel to determine outstanding issues.

• Ronald Mackinnon lot owner
• Andrew McKee lot owner
• Cornelis Greenway lot owner
• The Owners – Strata Plan No 49770 owners corp

The application by lot owners to enforce special by-laws 34 and 35 regarding flooring was dismissed, but the respondent's application to declare those by-laws invalid as harsh, unconscionable and oppressive was successful, resulting in an order to remove the by-laws from the strata scheme register.

JUDGMENTS AND ORDERS — Amending, varying and setting aside — application to set aside cost orders - whether orders were made “irregularly, illegally or against good faith” – Rule 36.15 – meaning of “against good faith” – notice of motion dismissed

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

COURTS AND JUDGES — Bias — Apprehended bias – whether a previous decision would cause a reasonable observer to think that the decision maker will not bring a fair mind – application dismissed - no point of principle

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

LAND LAW – strata title – common property – common property rights by-law – whether unreasonable refusal to consent – errors of law

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

TORTS — Private nuisance — Interference with use and enjoyment of land — where, in the course of developing his property, the defendant has caused water to penetrate through to the adjoining property — where, unless remedied, the water ingress will continue — plaintiff established a prima facie case — where cumulative negligence claim not adequately pleaded or proven — nuisance established.

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

LAND LAW – strata title – strata managing agent – fees– no evidence of work done for and reasonableness of fees charged – work for which fees charged included in annual base fee

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

LAND LAW – easements – creation of easements by prescription – servient owners unknown – whether servient owners acquiesced in user – whether acquiescence a necessary element LAND LAW – easements – creation of easements by order of court – Conveyancing Act 1919 (NSW) s 88K – whether easements reasonably necessary – whether easements not inconsistent with the public interest – evaluative decision in which appellate courts should exercise restraint

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

LAND LAW – strata title – building manager – duration of caretaker agreement – agreement made in 2001 provides for 10 year term with options for three additional 5 year terms – legislation introduced in 2003 regulates appointments of caretakers and duration of caretaker agreements – effect of legislation including transitional provisions upon variations to caretaker agreement made in 2010 and 2015 – variations provided for additional options for further terms – held that agreement as varied not

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

LAND LAW – strata schemes – by-laws – scope of subject-matter – purposive limits to the power to make by-laws – Strata Schemes Management Act 2015 (NSW), s 136(1) LAND LAW – strata schemes – by-laws – restrictions on by-laws – requirement that by-law not be harsh, unconscionable or oppressive – whether by-law imposing blanket prohibition on keeping animals contravenes provision – Strata Schemes Management Act 2015 (NSW), s 139(1) STATUTORY INTERPRETATION – use of dictionaries – whether three wor

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

COSTS - principal proceedings involve strata scheme dispute - application by Notice of Motion for interlocutory orders - applicants determine not to press Notice of Motion - abandonment of claim for interlocutory orders - no hearing of Notice of Motion on the merits - relevant considerations on costs application - whether respondent entitled to costs of abandoned Notice of Motion - order for costs made

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

ADMINISTRATIVE LAW – Civil & Administrative Tribunal (NSW) – appeal on a question of law, substantial miscarriage of justice, appointment of a compulsory strata manager, orders disproportionate to alleged failings of Owners Corporation

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

LAND LAW – covenants – restrictive covenants – construction – where restrictive covenant states that no matter or thing of any nature whatsoever shall be constructed on erected on placed on or permitted to remain on the servient tenement that exceeds a height of RL 26 AHD – where airspace above the servient tenement became part of the dominant tenement after registration of the restrictive covenant – whether on the proper construction of the restrictive covenant there is an implied positive cove

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

LAND LAW – strata title – by-laws – whether by-law was a common property rights by-law – whether “special privileges” in s 142(2) of the Strata Schemes Management Act 2015 (NSW) includes purported exemption from compliance with the obligations imposed by s 108 – by-law cannot provide exemption from obligations imposed by s 108 – s 111 of the Strata Schemes Management Act 2015 (NSW) subordinate to s 108 - difference between “validity” and “of no force or effect”

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

COSTS – s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) – special circumstances – complexity of proceedings – issue not previously decided by Appeal Panel – overruling of previous first instance decision – costs of non-party application to be joined in appeal.

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

COSTS – s 60 of the Civil and Administrative Tribunal Act 2013 – special circumstances – statutory construction – complexity of proceedings – issue not previously decided by Appeal Panel – overruling of previous first instance decisions

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

LAND LAW – Strata title – contravention of by law – failure to comply with notice to remove animals – order for removal under s 157 of the Strata Schemes Management Act 2015 PRACTICE AND PROCEDURE – costs – s 60 of the Civil and Administrative Tribunal Act 2013 – no special circumstances

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

APPEAL — leave to appeal from

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

STRATA TITLE – appeal from order of Tribunal ordering repayment of contributions for cost of heating water not used by some lot owners - held s 232 and other provisions of the Strata Schemes Management Act 2015 did not empower order - appeal allowed.

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

HOME BUILDING — costs applications — confusion over correct identification of respondents — substantive proceedings largely settled by agreement — remaining issues determined by Tribunal — Offers of Settlement — Calderbank Offer —

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

BUILDING AND CONSTRUCTION — Negligence — Miscellaneous forms of negligent conduct — Right of support — Application of Conveyancing Act 1919 (NSW) s 177 and common law — Whether loss of support caused damage to adjoining property. TORTS — Negligence — Essentials of action for negligence — Whether there was a failure to take reasonable care — Whether any failure caused damage — Assessment of expert evidence. TORTS — Negligence — Proof of negligence — Res ipsa loquitur.

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

APPEAL — NCAT — questions of law — leave to appeal from

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

COURTS AND TRIBUNALS – jurisdiction – jurisdiction of Supreme Court and NSW Civil and Administrative Tribunal – Civil and Administrative Tribunal Act 2013 (NSW), Sch 4, cl 5(3) – where proceeding commenced in NSW Civil and Administrative Tribunal (“NCAT”) concerning the validity of an annual general meeting called by the managing agent of a strata scheme – where another proceeding is subsequently commenced in the Supreme Court raising substantially the same issues – whether the Court has jurisdi

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

APPEALS — Appeal from NSW Civil and Administrative Tribunal Appeal Panel — application for leave — whether proceedings were required to be dismissed if commenced

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

BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Statutory warranty — In accordance with the law - Building Code of Australia – Whether issue of interim occupation certificate creates an irrebuttable presumption that the building is BCA compliant – Whether attachment of “Biowood” to the exterior walls constituted an “undue risk of fire spread via the façade of the building” – Words and phrases – “undue risk”

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

COSTS – costs of appeal – whether special circumstances warrant an award of costs – appellant withdrew appeal and application for a stay immediately upon being informed that the Tribunal did not have jurisdiction to review the determination of a cost assessor arising from a cost order made by the Tribunal

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