Decisions table

failure to maintain and repair common property - section 62 of the Act

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

STATUTORY CONSTRUCTION - Strata Schemes Management Act 2007 - validity of meeting - failure to give notice to lot owner - insufficient notice - strict compliance necessary - appeal dismissed

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

STRATA TITLES - appeal from Local Court - order made for unpaid levies "special levies" pursuant to s 76(4) of the Strata Schemes Management Act 1996 (SSM Act) - order made by Local Court for expenses incurred in recovering unpaid levies pursuant to s 80(1) of the SSM Act based on estimate of costs provided by owners corporation's solicitors GROUND 1 - the Local Court erred in upholding the levy under s 76(4) - special levy validly raised by owners corporation by reason that it was faced with ot

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

PRACTICE & PROCEDURE - application to amend Scott Schedule - whether statute barred

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

TORRENS SYSTEM - General matters - Application to Registrar-General to correct error in register - Review of Registrar-General's decision - Real Property Act 1900 (NSW), ss 12(1)(d), 122 WORDS AND PHRASES - "errors" - "in relation to"

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

STATUTORY CONSTRUCTION - Section 80D of the Strata Schemes Management Act 1996 (NSW) - meaning and effect - where proceedings commenced prior to resolution of the general meeting of owners corporation in contravention of s 80D(1) - whether statutory inhibition imposed by s 80D can be lifted by ex post facto resolution of the owners corporation at general meeting - whether resolution was passed within a reasonable time - HELD proceedings commenced without compliance with s 80D(1) are not a nullit

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

PROCEDURE - amendment of pleadings - whether proposed amendments disclose an arguable cause of action.

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

APPEAL - appeal from Local Court - Strata Schemes Management Act 1996 - whether Magistrate erred in finding that the special levy notices were served - whether the Magistrate erred in consideration of evidence

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

PROCEDURE - costs - security for costs - discretion whether to make an order for security for costs - impecuniosity of plaintiff allegedly a result of defendants' actions the subject of litigation - recoverability of receivables shown on plaintiff's balance sheet - lack of evidence by which to assess the strength of the plaintiff's case - costs of security for costs application - no evidence that ordering security would frustrate litigation - security ordered

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

JUDICIAL REVIEW - appeal from Local Court - evidence of plaintiff rejected -whether Magistrate erred in failing to expressly address plaintiff's honesty as a witness - adequacy of reasons - whether error of law established by failure to make a finding of fact - whether Magistrate applied the wrong test - whether Court has power to make primary findings of fact on a Local Court appeal where an error of law demonstrated.

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

PRACTICE & PROCEDURE - disclosure - application for disclosure - where owners strata plan was not in existence at time building contract was entered and relevant works completed - where owners strata plan was unable to identify relevant parties of the building contract and their roles - Practice Note Eq 11 - exceptional circumstances - meaning of exceptional circumstances - principles to be applied PRACTICE & PROCEDURE - application for leave to amend list statement - where application to amend

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

BUILDING AND CONSTRUCTION - builder's duty to subsequent owner - latent defects in common property - duty to owners' corporation of commercial premises STATUTORY INTERPRETATION - scope of duty of care under common law - responsibility of builder of commercial building - significance of statutory warranties with respect to residential building work TORTS - negligence - claim for pure economic loss - duty of care for latent defects in commercial premises - liability to owners' corporation with res

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

REAL PROPERTY - easements - implied - non-derogation from grant - first rule in Wheeldon v Burrows - requirement that quasi-easement be used by the grantor prior to grant - where surrounding circumstances indicate parties did not intend easement to pass REAL PROPERTY - statutory easements - Conveyancing Act 1919 s 88K - whether easement reasonably necessary for the effective use of the land - whether all reasonable attempts made to obtain easement - whether court should refuse to grant easement

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

CIVIL PROCEDURE - costs - follow the event and may be awarded for a discrete stage of ongoing proceedings STATUTORY CONSTRUCTION - Strata Schemes Management Act - Section 229 - meaning of 'brought by owners corporation against a lot owner' - not applicable on the particular facts

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

STRATA PLANS - duty of owners corporation to renew or replace mechanical exhaust ventilation system pursuant to Strata Schemes Management Act 1996, s 62(2) - whether duty extended to installing additional system to service plaintiff's lot - whether proprietary right of plaintiff in common property imposed such a duty - validity of special resolution pursuant to s 62(3) of the 1996 Act determining that it was inappropriate to renew or replace system - whether special resolution constituted a frau

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

APPEAL AND NEW TRIAL - where the Court of Appeal determines an appeal from a

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

PRACTICE AND PROCEDURE - amendments to defence and cross-claim - whether application to amend made too late and would cause undue prejudice

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

CONTRACTS — building, engineering and related contracts — Home Building Act 1989 — warranties implied by statute — whether owners corporation under strata scheme entitled to statutory warranties as against “developer” — liability of non-contracting owner to immediate successor in title — whether appellant was the party “on whose behalf” the “residential building work” was done and therefore a “developer” for the purposes of the Act.

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

DAMAGES - assessment of damages for defective building work - no question of principle.

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

APPEAL FROM LOCAL COURT - claim under contract for provision of building services to Owners Corporation - Magistrate found Secretary did not have the authority to contract - claims in contract and quantum meruit dismissed

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

PRACTICE AND PROCEDURE - application to have the Registrar's decision in relation to discovery set aside pursuant to rule 19 of part 49 of the Uniform Civil Procedure Rules 2005 (NSW)

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

STATUTORY CONSTRUCTION - Section 80D of the Strata Schemes Management Act 1996 (NSW) - meaning and effect STATUTORY CONSTRUCTION - Regulation 15 of the Strata Schemes Management Regulation 2005 (NSW) - meaning and effect STATUTORY CONSTRUCTION - effect of contravention - invalidity

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

PRACTICE AND PROCEDURE - legal professional privilege - where privilege asserted by owners corporation against lot owner - whether common or joint interest applies - where subpoenaed documents related to a proceeding that lot owner pursued solely for benefit of owners corporation and in which lot owner sought no relief against owners corporation - where owners corporation sought to dispute that claim by lot owner - where subpoenaed documents also related to other proceedings in which owners corp

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

PROCEDURE - amending judgments and orders.

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

ADMINISTRATIVE LAW - judicial review -error of law- appeal from Consumer, Trader and Tenancy Tribunal refusing to vary allocation of unit entitlements in strata scheme - whether tribunal wrongly substituted its own expert opinion or property values - alleged failure to give reasons - alleged apprehend bias - statutory construction of s 183(1) of the Strata Schemes Management Act 1996 -Tribunal failed to take into account the 'control issue'

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

COSTS - varying order - whether applicant should pay only one set of costs - where multiple respondents represented separately - where respondents' interests at odds in main proceedings - where costs order related to appeal on discrete question - where respondents' interests identical on discrete question - where applicant gave advance notice of objection to more than one set of costs - where objection not raised

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

COSTS - Whether to apportion costs

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

ADMINISTRATIVE LAW - Appeal from Consumer, Trader and Tenancy Tribunal - whether appealable questions have been raised - nature of the appeal as of right or by leave - Divs 1 and 2 of Pt 5 of Crimes (Appeal and Review) Act 2001 -

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

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

STRATA TITLES - appeal from Local Court question of law Local Court Act 2007 s 39 - proceedings by owners corporation in the Local Court against strata member for unpaid strata levies and recovery costs - whether owners corporation had complied with Strata Titles Management Act 1996 s 80D(1) by having a general meeting approve the taking of that legal action - whether the taking of that legal action is exempted from the operation of Strata Titles Management Act s 80D under Strata Titles Manageme

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 - whether owners corporation entitled to statutory warranties - liability of non-contracting owner to immediate successor in title - whether second defendant was the party "on whose behalf" the "residential building work" was done for the purposes of the Act

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

APPEAL FROM CONSUMER TRADER AND TENANCY TRIBUNAL - strata scheme by-law - keeping a dog - "hearing dog" - "used as a hearing dog" - public behaviour of dog - "assistance animal" - "taking of legal action" - "initiate legal action"

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

DAMAGES - claims under the Compensation to Relatives Act 1897 (NSW) - limit on the "claimant's" income to which a court may have regard when calculating future loss of economic support - whether limit applies to claims under the Compensation to Relatives Act - whether deceased person is a "claimant" - whether appropriate for court to insert words not used by the Parliament - Civil Liability Act 2002 (NSW), s 12 STATUTORY INTERPRETATION - principles - whether words may be read into a provision to

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

TORTS - duty of care - plaintiff became owner of apartment building on registration of strata plan-claim for economic loss against builder-strike out motion by cross defendant alleging no cause of action-held no cause of action applying

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

Strata Schemes (Freehold Development Act) 1973 (NSW), Strata Schemes Management Act 1996 (NSW), serviced apartment, strata title apartment, whether lease or licence, construction of lease, validity of lease of common property, whether void, whether executed ultra vires, whether indefeasible, s 42 Real Property Act 1900 (NSW), unauthorised affixing of company seal, requirements of fraud, relation to indoor management rule, extent of indefeasibility, indefeasibility and certain personal covenants,

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

PRACTICE AND PROCEDURE - Costs - Offer of Compromise - Application for indemnity costs where offer more favourable than final

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

APPEAL - appellant gave inconsistent evidence at trial as to whether the part of the ramp on which she slipped was wet or dry - trial judge accepted evidence that the area where the appellant slipped was dry - whether finding of the trial judge was improbable APPEAL - trial judge made adverse credit findings - whether adverse credit findings were unwarranted - whether adverse findings infected the trial judge's finding as to the wet/dry issue or as to damages - whether failure by the trial judge

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

PRACTICE AND PROCEDURE - summary

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[ADMINISTRATIVE LAW] - whether by operation of s 69(5) of the Supreme Court Act 1970 and s 65(1) of the Consumer Trader and Tenancy Tribunal Act 2001 (CTTT Act) the jurisdiction of the Supreme Court to grant an order in the nature of certiorari is limited to decisions affected by jurisdictional error - whether primary judge exceeded appellate jurisdiction conferred by s 67 of the CTTT Act - whether primary judge erred in construction of s 18G of the Home Building Act 1989.

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

REAL PROPERTY - Strata and related titles and occupancy - defendant Owners Corporation in breach of Strata Schemes Management Act 1996, s 62(2) since December 2007 - whether plaintiff lot owner has suffered any loss from such statutory breach - assessment of the quantum of any such loss.

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

[CONTEMPT OF COURT] - civil contempt - application that the statement of charge be struck out or quashed - whether statement of charge sets out all the requisite elements of the particular contempt it seeks to allege - whether defendant failed to comply with its obligations under the Court orders - whether contempt alleged deliberate or wilful - whether statement of charge defective.

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

[PROCEDURE] - civil - whether court should order the separate and prior determination of the question of the existence of a duty of care - all relevant factual material

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

Estoppel - estoppel in pais - equitable estoppel - proprietary estoppel - whether an arrangement between parties was a permanent easement or a car park licence for an indefinite period determinable by either party on reasonable notice - whether defendant gave the plaintiff reasonable notice of its intention to terminate - proprietary estoppel not established

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

[PROCEDURE] - interlocutory issues - application to set aside an order that the defendant serve its evidence on the plaintiff's contempt motion - whether statement of charge is defective.

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

PRACTICE AND PROCEDURE: application to amend - respondent consents but insists on costs as a condition of that consent - whether costs can include costs of a s 34 conference - imminent consideration of joining these with related Supreme Court proceedings

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

REAL PROPERTY - STRATA MANAGEMENT - Appeal from Local Court - management and control - rights and obligations of proprietors - where owners corporation breached duty to repair and maintain common property - where lot owner made repairs to common property without permission of owners corporation - whether lot owner entitled to be compensated for expense incurred in undertaking rectification work on common property - expenses not recoverable as a loss attributable to breach of duty - Act does not

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

COSTS - Orders

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

PRACTICE AND PROCEDURE - judgments and orders - power to set aside or vary orders entered -- whether power should be exercised when application is not filed within 14 days of order being entered - Uniform Civil Procedure Rules 2005 (NSW), r 36.16 (3A) - whether Court can dispense with the rule in this case - Civil Procedure Act 2005 (NSW), s 14 - consideration of public policy in all persons being entitled to rely upon orders of court - application to set aside previous orders so much as they af

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

Appeal from Local Court - Magistrate dismissed proceedings even though amount conceded by defendant to be owing - recovery of contributions - recovery of interest - defence to claim under s 80(1) Strata Schemes Management Act.

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

[BUILDING AND CONSTRUCTION] - strata titles - whether development was adapted for commercial use as a tourist holiday or overnight accommodation - whether owners corporation is entitled to the benefit of the statutory warranties implied under the Home Building Act 1989 (NSW) - whether appropriate for a trial judge to determine a common law duty of care owed to an owners corporation - whether defendants owed a common law duty of care. [PROCEDURE] - civil - interlocutory issues - severability of i

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