Decisions table

LAND LAW – Easements – Right of Way – Full and free right for every person entitled to an estate or interest in the dominant tenement, and every person authorised by them, to go, pass and repass at all times and for all purposes, with or without vehicles, to and from the dominant tenement - Whether the defendant (servient owner) is infringing the right of the plaintiff (dominant owner) to enjoy the easement according to its terms and free of substantial interference by the servient owner, by ref

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

• Helen Mary Dart lot owner
• The Owners - Strata Plan 71849 owners corp

The appeal was allowed on questions of law; the Tribunal's findings on the number of common property items requiring repair were based on no evidence, the Tribunal failed to consider whether the limitation period applied to a work order application, and the Tribunal applied a wrong legal principle regarding limitation periods for work orders, resulting in remittal to the Tribunal for redetermination.

• SafeWork NSW government
• The Owners - Strata Plan No 93899 owners corp

The Owners Strata Plan No 93899 was convicted of failing to ensure the workplace was without risks to health and safety after a damaged gate fell and fatally crushed a worker; ordered to pay a fine of $225,000 and prosecution costs of $40,000.

BUILDING AND CONSTRUCTION – Home Building Act 1989 - contract to undertake residential building work– non est factum – purported oral variation to scope of works - waterproofing - failure to comply with Australian Standard and Building Code of Australia BUILDING AND CONSTRUTION – Statutory duty of care under s37 of Design and Building Practitioners Act 2020 – waterproofing - failure to comply with Australian Standard and Building Code of Australia

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

• The Owners - Strata Plan No 30691 owners corp
• Maryanne Pickard lot owner

The Appeal Panel upheld the appeal and set aside the damages order of $35,990, holding that the two-year limitation period in s 106(6) of the Strata Schemes Management Act 2015 is a substantive limitation that cannot be extended under s 41 of the NCAT Act and that the Tribunal lacked jurisdiction to award damages outside that period.

• Bernadette York and Kevin Edwards lot owner
• The Owners – Strata Plan No 675 owners corp

The Appeal Panel refused leave to appeal and dismissed the appellants' appeal against the Tribunal's decision to reallocate unit entitlements in the strata scheme based on the relative values of lots as at 17 June 2014, increasing the appellants' lot unit entitlements from 60 to 109 and from 24 to 43 respectively.

REAL PROPERTY – STRATA MANAGEMENT – strict duty of owners corporation to maintain and repair common property – lost rent claim arising from alleged breach of duty – limitation period in Strata Management Act 2015 (NSW) s 106(5) with (6) – nature of loss - extension of time under Civil and Administrative Tribunal Act 2013 (NSW) s 41

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

• Michael David Horan lot owner
• The Owners – Strata Plan No. 68307 owners corp

The appeal was allowed in part; the owners corporation's breach of its duty under section 106 of the Strata Schemes Management Act was established, and damages for loss of rental opportunity were increased from $7,510 to $45,060 for the period July to December 2020, plus electricity charges of $429.26, totalling $46,616.26.

• The Owners - Strata Plan No. 94784 owners corp
• Mirvac Projects Pty Ltd developer
• Mirvac Constructions Pty Ltd contractor

Leave granted to plaintiff to rely on supplementary expert reports served late in breach of guillotine order; plaintiff ordered to pay defendant's costs on gross sum basis; solicitor directed to show cause why he should not personally meet the costs order.

LAND LAW — Strata title — Owners corporation — Contributions by owners – Recovery of unpaid contributions and interest – Unpaid strata levies – Notice of Levy

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

• The Owners – Strata Plan No 2661 owners corp
• Simone Selkirk lot owner

The appeal was allowed on the question of law whether a mitigation defence is available in answer to a claim for damages under s 106(5), with the court holding that an owners corporation may establish that a lot owner's unreasonable failure to mitigate loss reduces their damages claim.

• Raysons Constructions Pty Ltd builder
• The Owners – Strata Plan No. 87003 owners corp

The appeal was allowed and the orders for the builder to repair defects were set aside; the application was dismissed on the basis that the owners corporation was aware of the defects before the limitation period expired and could not rely on the statutory extension under s18E(1)(e).

• The Owners – Strata Plan No 89866 owners corp
• John Joseph Zouki lot owner
• Hardy Pty Limited developer
• Kevin Zouki lot owner
• Juliane Lahood party

Indemnity costs were refused; the Court found it was not unreasonable for Hardy Pty Limited to reject the settlement offers made on 18 April 2024 and 23 April 2024, and ordered that Hardy Pty Limited pay the Owners Corporation's costs on a party/party basis only.

• The Owners - Strata Plan No. 94784 owners corp
• Mirvac Projects Pty Ltd developer
• Mirvac Constructions Pty Ltd builder

The court refused leave to the Owners Corporation to rely on supplementary expert reports served in breach of a consented guillotine order, finding the explanation for non-compliance was not adequate, comprehensive, and candid.

BUILDING AND CONSTRUCTION – Home Building Act 1989 – residential building work – statutory warranties – defendant constructed development of 45 townhouses – extent of defects – whether damage to lot property or common property – scope of rectification works

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

• Samar Sultan lot owner
• The Owners – Strata Plan No. 54721 owners corp

The appeal regarding the monetary order for levies ($15,105.62) was dismissed and affirmed, but the appeal regarding the water ingress application was upheld and remitted for rehearing due to denial of procedural fairness when the respondent's expert witness was not available for cross-examination.

• Mercy Samia lot owner
• Carolina Foster lot owner
• The Owners – Strata Plan No 67743 owners corp

The appeal was dismissed and leave to appeal refused; the Tribunal's decision to appoint Strata Management Services Pty Ltd as compulsory strata manager for the dysfunctional two-lot strata scheme was upheld.

BUILDING AND CONSTRUCTION – contract – damages – defects –

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

• The Owners – Strata Plan No 89866 owners corp
• John Joseph Zouki party
• Hardy Pty Limited developer
• Kevin Zouki builder
• Juliane Lahood party

Freezing order restraining Hardy Pty Limited from dealing with proceeds of sale of Unit 5 was varied and continued until conclusion of hearing, with the restrained amount reduced from $3.2 million to $1.1 million and carve-out for ordinary living expenses removed; order restraining Juliane Lahood from dealing with Unit 5 was extended until conclusion of hearing.

COSTS – award for costs where appeal dismissed for non-appearance of appellant – special circumstances – appellant failing to appear at hearing of appeal despite expressly requesting a hearing – failure to comply with duty under s 36(3) of the Civil and Administrative Tribunal Act 2013 (NSW) – claim for lump-sum award of costs – principles applicable to fixing lump-sum

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

COSTS — Party/Party — Orders when proceedings involve multiple parties — Whether some defendants should be considered “interveners” — Whether plaintiff ought to pay the costs of those defendants – Whether plaintiff capitulated COSTS — Party/Party — Court’s discretion — Where two dominant issues arose during the proceedings — Where plaintiff unsuccessful on first issue — Where second issue arose due to a controversy as between some defendants — Where plaintiff “agnostic” as to outcome of second i

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

• The Owners-Strata Plan No 53865 owners corp
• JPG Investments Pty Ltd lot owner
• Conrad Corporation Pty Ltd lot owner

The Appeal Panel dismissed the lot owners' application for costs, finding that special circumstances had not been established under section 60(2) of the Civil and Administrative Tribunal Act 2013 and each party must bear its own costs of the appeal.

• Noela Hunt lot owner
• Brian Hunt lot owner
• Cheryl Hunt lot owner
• The Owners - Strata Plan No 1158/84199 owners corp

Leave to appeal was refused and the appeal was dismissed; the Tribunal's decision that the owners corporation did not unreasonably refuse consent to install air-conditioning units on the balconies in non-compliant positions was upheld.

JUDGMENTS AND ORDERS – amending, varying and setting aside orders – corrections under slip rule – orders amended

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

• The Owners – Strata Plan No 64757 owners corp
• Sydney Remedial Builders Pty Ltd builder

Leave to appeal refused; the Court of Appeal upheld the primary judge's decision that proceedings claiming $850,000 in damages for building defects were commenced out of time under the Home Building Act 7-year limitation period.

• The Owners – Strata Plan No. 85494 owners corp
• PBS Building (NSW) Pty Ltd builder
• Iris Property Group Pty Ltd developer
• Squillace Architects Pty Ltd consultant
• Royal Tiles Australia Pty Ltd contractor

Leave to amend pleading to add fire safety defects was granted conditionally, with the trial judge to determine whether the Second Defendant was prejudiced and whether the amendments should be revoked, and the Owners ordered to pay the Second Defendant's costs thrown away by the amendments.

COSTS — appeals — whether the Tribunal erred in not finding special circumstances and ordering costs after the Respondent, in substance, consented to the relief sought by the Appellant, the Applicant below — failure to consent to the Appellant’s proceedings earlier was not unreasonable — the Tribunal did not err in not finding special circumstances and not awarding costs in favour of the Appellant — whether the order of the Tribunal directing the Appellant to exempt the Respondent from any costs

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

• Anne Casey lot owner
• Renfay Projects Pty Ltd builder
• The Owners – Strata Plan No 586 owners corp

Applications by the Owners Corporation and Anne Casey to vary the Appeal Panel's costs order were dismissed, and the original order requiring Anne Casey to pay costs to Renfay Projects Pty Limited and The Owners Strata Plan 586 on the ordinary basis was reinstated.

COSTS – Costs assessment – Determination – Mixed results – Parties succeeding and failing in both claims and cross claims – Intent to find just and equitable costs solution to whole of the proceedings

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

• S Selkirk lot owner
• The Owners - Strata Plan No 2661 owners corp

The appellant was successful on appeal in relation to the common property issue concerning bathroom repairs and related claims, but the costs orders were structured to quarantine the flooring issue on which the appellant was unsuccessful, with the appellant ordered to pay the respondents' costs on that severable issue while receiving most of her appeal costs from the owners corporation.

• Kevin Lenux lot owner
• The Owners – Strata Plan No 88786 owners corp

The appeal against the costs order was granted on procedural fairness grounds; however, the Appeal Panel affirmed that costs should be awarded to the Owners as the lot owner had undertaken unauthorised works to common property without proper approval and refused to accept this throughout the proceedings.

• Karen Marie Gill lot owner
• The Owners – Strata Plan No. 17913 owners corp
• Warwick Young manager

Leave to appeal was refused and the appeal was dismissed; the Tribunal's original decision dismissing the applicant's application for removal of the building manager/committee chairperson and various management orders was upheld.

COSTS – party/party – self-represented litigant – where application made by defendant for gross sum costs orders under s 98(4)(c) of the Civil Procedure Act 2005 (NSW) following summary dismissal of plaintiff’s claim – where conduct of the plaintiff significantly increased costs and disbursements incurred by the defendant – application granted

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

• Moira Bass-Skardon lot owner
• Anthony Abbess lot owner
• The Owners-Strata Plan No 33038 owners corp

The owners corporation was ordered to perform repairs to the sub-floor beneath Lot 6 and install a drainage system within 3 months, with all other applications dismissed.

STRATA PLANS - Operation of Car Park contrary to development application - Whether the tort of unlawful interference with trade forms part of the common law of Australia

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 granting exclusive use rights conditional on four critical obligations had been complied with – Whether clause of By-law ceasing exclusive use rights unless critical obligations were complied with is unjust – Whether clause of By-law ceasing exclusive use rights unless critical obligations were complied with is unconscionable, harsh or oppressive – Whether special levies are unreasonable – Award as to damages- reasonableness of costs – quantum a

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

• Anne Casey lot owner
• Renfay Projects Pty Ltd builder
• The Owners – Strata Plan No 586 owners corp

All three appeals by Anne Casey against the Primary Decision, Work Order Decision, and Costs Decision were dismissed, with the Appeal Panel finding no procedural unfairness and no errors of law in the tribunal's original determinations.

• Ned Abraham lot owner
• The Owners – Strata Plan No 61419 owners corp
• BlueHouseCoffs Pty Ltd manager
• Arthur George Bilski lot owner
• Wojceich Marek Bilski lot owner

The appeal was dismissed as incompetent because Ned Abraham, a lot owner, lacked standing to appeal on behalf of the Owners Corporation after a compulsory strata manager with plenary powers was appointed, and the appointed manager did not ratify the appeal.

• Ms Simone Selkirk lot owner
• The Owners - Strata Plan No 2661 owners corp

The appeal was allowed against the owners corporation and the matter was remitted for re-determination on the scope of work required to fulfil the owners corporation's strict duty to maintain and repair common property in the appellant's bathroom and the amount of rent and losses from 5 December 2020.

• Malcom Reid lot owner
• Leonie Palmer lot owner
• The Owners – Strata Plan No. 5362 owners corp
• Peter Bonello lot owner
• Catherine Munayer lot owner
• John Wynne lot owner
• David Withers lot owner

The application for appointment of a compulsory strata manager under s237 and removal of strata committee members under s238 was dismissed.

• The Owners – Strata Plan No. 20548 owners corp
• Mount Street 4 Pty Ltd atf Mount Street 4 Unit Trust developer
• Keith Anthony Bond lot owner

The court dismissed the applicant's motion to join 15 dissenting lot owners to the proceedings for the purpose of the conciliation conference only, finding the statutory scheme for strata renewal plans prescriptive and comprehensive with adequate notice provisions, and that joinder was not necessary or of utility.

• The Owners - Strata Plan No 97315 owners corp
• Icon Co (NSW) Pty Ltd builder

The court ordered that there be no order as to the costs of the reference, with each party bearing its own costs, because neither party established the case for which it primarily contended on the sunshade defects issue.

• The Owners-Strata Plan No 53865 owners corp
• JPG Investments Pty Ltd lot owner
• Conrad Corporation Pty Ltd lot owner

The appeal of the owners corporation against the Tribunal's order requiring it to consent to the lot owners' development application for construction of additional storeys was dismissed, with the original Tribunal orders upheld.

• The Owners-Strata Plan No 92334 owners corp
• Peng Zheng lot owner
• Ning Lu lot owner

The respondents were found to have contravened by-law 27 by parking vehicles on common property in breach of a Notice to Comply with By-laws dated 21 December 2022, and were ordered to pay a penalty of $550.

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

Both the applicant's and first respondent's applications for costs were dismissed as special circumstances warranting a costs order were not established.

• The Owners – Strata Plan No. 64807 owners corp
• Sunaust Properties Pty Ltd contractor

The application to dismiss and transfer proceedings to Supreme Court were refused; proceedings stayed pending finalisation of Supreme Court proceedings; application to amend refused; costs reserved.

• Nerrida de Beck lot owner
• The Owners – Strata Plan No. 30468 owners corp
• Brilliant Property Group Pty Ltd manager

A compulsory strata managing agent (Brilliant Property Group Pty Ltd) was appointed to exercise all functions of the owners corporation for 12 months due to the management not functioning satisfactorily, including inadequate roof leak repairs, unresolved toilet maintenance issues, failure to remove an unauthorised bollard, and failure to prepare a required capital works plan.

• The Owners - Strata Plan No 4393 owners corp
• Mei Lan Roberts lot owner
• The Commissioner for Fair Trading of the Department of Customer Service government

The respondent was ordered to pay civil penalties totalling $8,250 for contravening tribunal stop work orders by carrying out plumbing work, structural works, and other renovations on her lot, and to pay the applicant's costs on an ordinary basis.

PRACTICE AND PROCEDURE – application for recusal – where plaintiff identified no basis for recusal – request refused JUDGMENTS AND ORDERS – amending, varying and setting aside – where plaintiff brought application to set aside orders – where plaintiff did not materially engage with provisions of the Uniform Civil Procedure Rules 2005 (NSW) – where plaintiff alleges judge had hidden and malicious agenda – application dismissed

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

• Promina Design & Construction Pty Ltd builder
• The Owners - Strata Plan No 97449 owners corp

The respondent's application for costs of the appeal was dismissed as rule 38 did not apply and no special circumstances warranting an award of costs were established.