Decisions table

Owners Corporations

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

Building and Property

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

• 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.

Owners Corporations

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.

No 3; Owners Corporations

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

• 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.

Building and Property

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

Costs; Owners Corporations

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

Costs; Owners Corporations

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.

Owners Corporations

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.

Owners Corporations

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

Owners Corporations

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.

Costs; Owners Corporations

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.

Administrative Law – Civil & Administrative Tribunal (NSW) Appeal – application for stay pending appeal – refused – exercise of discretion

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

LANDLAW – Strata title – functions of owners corporation – consent to development application affecting common property – power of Tribunal to make an order requiring an owners corporation to give consent to a development application affecting common property – test to be applied in determining whether to make an order requiring an owners corporation to give consent to a development application affecting common property LANDLAW - Strata title – owners corporation – functions of owners corporatio

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

TORTS– Negligence – Nuisance – Where Plaintiff Owners Corporation of Strata Plan claims First and Second Defendant caused damage to common property – Where First Defendant runs powder coating business out of Second Defendant’s Lot in Strata Complex – Whether garnet and powder was emitted during course of First Defendant’s business – Whether duty is owed by the Second Defendant to Plaintiff – Failure to take proper precautions in running of business – Whether the First Defendant’s business consti

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