Decisions table

COST ORDERS – third defendant sought indemnity from the first defendant owners corporation for her costs of the proceedings – first defendant was not initially capable of opposing plaintiffs’ application for leave to take proceedings in the name of the first defendant – court of its own motion joined the third defendant as a party to plaintiffs’ application – exceptional circumstances – principles of justice and fairness considered – court had already ordered the first defendant to indemnify the

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

APPEAL: power of Tribunal to set aside or vary orders dismissing proceedings. APPEAL: whether discretion to set aside or vary orders should be exercised.

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

[DEEDS] - where construction contract between two parties - where performance of one party to construction contract guaranteed by third party - where the three parties execute a Deed of variation and release at same time as settling proceedings between two of those parties to which the guarantor was not a party - construction of the Deed - meaning of the expression “the parties” - separate question as to whether guarantor released from obligation to guarantee certain obligations of the party not

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

CONTRACT – damages - Caretaker Agreement made under Strata Schemes Management Act 1996, Part 4A – caretaker appointed in 2004 to provide caretaking services to two strata schemes and one additional stratum lot of a commercial/residential building complex divided into three parts – the caretaker, the two owners corporations and the owner of the stratum lot are all parties to the Caretaker Agreement – one of the two owners corporations alleged breaches of the Caretaker Agreement and in July 2012 u

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

COSTS – no special circumstances

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

Costs- appropriate order in respect of proceedings at first instance

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

Evidence – failure to consider, error of law Construction of Deed – relevance of surrounding circumstances Home Building Act 1989 – s 18D, prior enforcement Betterment – circumstances when allowance should be made, onus of proof Section 48MA – application to proceedings commenced prior to commencement of Home Building Amendment Act 2014

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

PRACTICE - reference by court - finding by referee as to the proper construction of operative agreement - whether referee erred in law; CONTRACTS - proper construction – settlement deed – contract to do residential building work – nature of builder’s obligation to effect rectification works - whether certifier empowered to alter manner in which rectification works be effected and designated standard be achieved

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

BUILDING AND CONSTRUCTION – breaches of statutory warranties in s 18B of Home Building Act 1989 (NSW) – adoption of referee’s report under Uniform Civil Procedure Rules 2005 (NSW), r 20.24 – where contract required building work comply with provisions of Building Code of Australia – where Code complied with by work in accordance with deemed-to-satisfy provision or alternative solution – where experts agreed that alternative solutions capable of achieving compliance with Code – where referee allo

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

PROCEDURE – notice of motion – leave sought to continue cross-claim and amend pleadings – leave granted

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

JUDGMENTS AND ORDERS - matters arising from earlier

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

PRACTICE AND PROCEDURE – security for costs – discretion to order security for costs enlivened – no relevant delay - security for costs order made – quantum - UCPR r 42.21 – s 1335(1) Corporations Act 2001 (Cth)

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

INJUNCTIONS – Continuation of asset preservation order first made ex parte – No issue of principle

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

BUILDING AND CONSTRUCTION – Home Building Act 1989 – statutory warranties – withdrawal by defendant’s solicitor – no appearance by defendant – contract in existence between builder and developer – defects in residential building work result of builder’s work – breach of statutory warranties –

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

BUILDING AND CONSTRUCTION – Home Building Act 1989 – statutory warranties – two preliminary issues – whether there was a contract between defendant and the Developer – contract found to be operational - whether plaintiff’s claim statute barred – court held plaintiff’s claim not commenced within time – unnecessary to deal with further issues

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

DAMAGES – contract – building – breach of statutory warranties in Home Building Act 1989 (NSW) – where

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

APPEAL - residential strata title development – claim for breaches of warranties under Home Building Act – grounds covering adequacy of reasons, procedural fairness and sufficiency of evidence – appeal dismissed APPLICATION FOR LEAVE TO APPEAL – similar grounds – application dismissed

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

BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) ss 18B, 18E(1)(a) – claim for damages for breach of statutory warranty by builder in respect of work not performed in a proper and workmanlike manner – where particulars of defective work were pleaded by reference to an expert report and then amended to refer to another report whether the change constitutes commencing proceedings for the purpose of s 18E(1)(a) – mitigation of damages – whether plaintiff failed to mitigate damages by not gi

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

Error of law - failure to provide adequate reasons Fresh evidence - evidence not reasonably available Owners Corporation - standing to bring application under the Home Building Act as successor in title Causation

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

STRATA AND COMMUNITY SCHEMES—costs—Consumer and Commercial Division—applicable legislation—costs not awarded

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

Strata Scheme Management Act- power to award costs following withdrawal of application, form of order to effect withdrawal. Meaning of “misconceived”, requirements for making an order dismissing proceedings that are misconceived. Consumer Trader and Tenancy Tribunal Act- power to make orders under s 28

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

STRATA TITLES – mixed residential, commercial, retail and car parking development – allocation of the costs of shared services – proper construction of strata management statement – whether allocation of costs of shared services under strata management statement fair and reasonable – whether strata management statement an unjust contract for the purposes of the Contracts Review Act 1980 – whether strata management statement should be re-written – whether any amendment to strata management statem

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

PROCEDURE – costs – whether to order owners corporation to indemnify plaintiffs for their costs – plaintiffs members of executive committee – NCAT orders vesting all functions of owners corporation in strata manager – apparent inability of owners corporation to appeal – rule in Foss v Harbottle applies to owners corporations – whether interests of justice exception to the proper plaintiff rule satisfied – owners corporation ordered to indemnify plaintiffs but not for costs incurred in pursuit of

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

BUILDING AND CONSTRUCTION – design and construct contract between developer and first defendant – plaintiff successor in title to developer – whether first defendant breached statutory warranties under s 18B(a), (b) and (f) of the Home Building Act 1989, as incorporated into the contract – whether facade was designed and constructed in accordance with the “Hyder Specification” as incorporated in the contract – proper construction of the Hyder Specification – whether a reasonable businessperson w

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

Penalties for breaching interim order of an Adjuicator

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

REAL PROPERTY – strata title – management and control – where lot owner and Owners Corporation negotiated to settle existing proceedings between them – where ‘agreement in principle’ was reached in correspondence – where agreement was subject to formal resolutions being passed at general meeting – whether a binding agreement existed.

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

Home building – costs – appeal - no evidence to support Tribunal finding that builder admitted liability – consideration of who was successful party in proceedings – importance of Tribunal’s refusal to make a work order - whether issues severable for the purposes of a costs order – whether conduct of party disentitling for the purposes of costs – Tribunal erred in the exercise of its costs discretion by taking into account two matters for which there was no evidence – appeal allowed

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

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

Failure to comply with By-laws, implied duty to cooperate, estoppel, waiver.

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

Prescription of special By-law – persons entitled to vote at general meetings.

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

REAL PROPERTY – Strata scheme – Agreement for managing common property – CONTRACT – Where one of the Defendants provided cleaning and other services to the Plaintiff – Entitled to reimbursement of all reasonable and proper fees and expenses incurred in carrying out its duties under the contract – No dispute that it carried out duties – Breach alleged related to submission of claims in writing in order to be reimbursed its costs and expenses – Whether Manager of common property of strata scheme c

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

PROCEDURE – application for leave to reopen – applicable principles – factors relevant to exercise of discretion – lengthy hearing –

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

COSTS – application for indemnity costs – Calderbank letter – whether proposal contained a real and genuine element of compromise – late amendment to pleading – whether late amendment caused defendant any disadvantage – cost consequences of unjustifiable failure to bring proceedings under Strata Schemes Management Act 1996 (NSW)

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

Res judicata

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

Exclusive use By-law

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

Reallocation of unit entitlements Ascertaining the respective values of the lots Whether allocation of unit entitlements was unreasonable Section 183 Strata Schemes Management Act (1996) NSW

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

Costs – special circumstances

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

PRACTICE AND PROCEDURE – dispute between owners corporation and builder – where defendant builder seeks to commence separate proceedings against the developer to rectify the contract pursuant to which the building was constructed – related application to amend list response in present proceedings to incorporate that defence – where it has been open to the defendant to agitate the question of rectification for three years – where substantial effort and expense has gone into the preparation of the

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

Strata managing agent

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

STRATA TITLE – application by lot owner to bring derivative action at general law on behalf of owners corporation – exceptions to rule in Foss v Harbottle – whether owners corporation acted ultra vires in making payment of legal fees from sinking fund – whether in the interests of justice that the plaintiff bring a derivative action – whether payment by lot owner to owners corporation appropriated to debt in respect of sinking fund levies – principles of appropriations of debts.

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

Repeal of a by-law conferring exclusive rights or privileges over common property

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

Community Management Statement; By-law; Whether by-law invalid; whether by-law not in the interests of the Community Association or lot owners

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

Consumer Claim – Negligence alleged – no duty of care

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

Orders to pursue an insurance claim; losses of a lot owner; disciplinary action against a strata manager rebuttal of special levies; amendment of owners ledger; supply of information about loan to owners corporation by strata manager; compensation to lot owner; pursuit of insurance claim; rescission of levies; inspection of records; right to bring application when lot owner in arrears of contributions levied and payable

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

Meaning of “developer” for Home Building Act 1989 – extension of statutory warranties – immediate successor in title – vesting of common property on registration of strata plan – successor in title to person entitled to benefit of statutory warranty

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

PRACTICE AND PROCEDURE – longstanding dispute regarding block of flats – proceedings on foot in Local Court and Supreme Court – whether Local Court proceedings should be stayed until Supreme Court proceedings are resolved – defendant not opposed to stay COSTS – ex parte application – no notice given to defendant – application unnecessary because of consent of defendant to orders sought – whether the plaintiff should pay the costs of the hearing

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

EVIDENCE – admissibility – discretion to exclude or limit the use of evidence – whether lay observational evidence adduced by plaintiff after cut-off date of “guillotine order” is evidence-in-chief or in reply – if in chief, whether leave should be given to adduce that evidence – whether defendants would be prejudiced if that evidence is admitted – whether use of evidence should be limited to exclude evidence of April 2015 storm event

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

CONTRACT – offer to settle litigation – time – where defendant made a ‘walk away’ offer, open for 28 days – where that offer accepted on 28th day – whether relevant that time of acceptance was later than time of offer – common law position on taking fractions of days into account CONTRACT – offer to settle litigation – counter-offers – where,

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

EXCLUSIVE USE - unreasonably refused

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

CONTRACT – deeds – application to set aside deed of settlement as void – insufficient evidence to ground avoidance on doctrines of common mistake, mutual mistake or unilateral mistake

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