Decisions table

BUILDING AND CONSTRUCTION - Building Services Corporation Act 1989 - statutory insurance scheme - indemnity for loss where notification of defects - referee's report - time limitations - whether notification of defects sufficient - SUMMARY

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

COMPULSORY ACQUISITION OF LAND :- right of body corporate to claim for injurious affection to individual units in strata scheme; market value; disturbance

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

EASEMENTS - "full and free right" to park vehicles on burdened lot - whether valid as grant of easement - whether right exclusive.

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

INSURANCE – Home warranty insurance - Claim made by successors in title to the developer in respect of defects - Policy defined "Contractor" as the person who entered into building contract - Whether the individuals named in the Policy were the "contractor" or whether a company controlled by them had entered into the building contract - Inferences to be drawn from contemporaneous documentation - Need to consider legislative amendments.

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.

Statutory construction - Interpretation Act 1987 - Home Building Act 1989 - Examination of what are the circumstances that entitle a person to the benefit of a statutory warranty as provided for in section 18D of the Home Building Act - Whether the statutory scheme avoids the requirement of privity of contract because it provides its own criterion, which is whether the work was done on behalf of the relevant person - Holding that section 18D avoids the privity of contract rule

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

REAL PROPERTY – strata title – management and control – body corporate: powers, duties and liabilities – duty under s 62(1) of Strata Schemes Management Act 1996 properly to maintain and keep in a state of good and serviceable repair the common property – whether duty strict – whether owners corporation breached duty – whether plaintiff caused or contributed to own loss or is estopped from asserting loss – whether plaintiff failed to mitigate loss – held that duty strict – owners corporation bre

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

STRATA SCHEMES – Orders appointing strata managing agents to exercise all the functions of an owners corporation – Meetings at which resolutions raising levies purportedly passed – Whether strata managing agent exercised the function of the owners corporation at such meetings – Whether there were limitations on the appointment of the strata managing agents – Whether certain functions of the owners corporation still had to be exercised at properly constituted meetings.

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

REAL PROPERTY - Strata Titles – Common property - alterations to common property constituted an improvement or enhancement to common property so as to require authorisation under s 65A - Held: work constituted repairs and maintenance under s 62 and therefore did not require special resolution - Whether work authorised by the Owners Corporation - where works not explicitly authorised by resolution of owners corporation - whether implicitly authorised - Held: owners corporation had implicitly auth

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

PROCEDURE - where matter referred to referee for report on issues of liability and quantum - where defendants seek to adduce on reference evidence of “without prejudice” communications - where plaintiff seeks order excluding such evidence from the reference - whether Court should determine matters or leave it to referee. Held: Court should intervene. EVIDENCE - whether material protected by without prejudice privilege - whether exceptions in s 131(2) of the (NSW) Evidence Act 1995 apply - Held:

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

[COSTS] - Concurrent proceedings - complex multi-issue, multi-party case - nominal damages - costs of first set of proceedings as finalised

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

[REFEREES/REFERENCES] - Whether explanation from referee required in respect of matters omitted from report - Whether matter should be remitted to referee for further consideration and report - Whether matter should be remitted to provide a party an opportunity to be heard - Nature of discretion to require explanation and/or remit matter to referee

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.

CIVIL LAW - appeal against Magistrate's decision - recovery of unpaid levies by Owners' Corportion and legal costs - STATUTORY CONSTRUCTION - operation and effect of s 80D of the Strata Schemes Management Act 1996 and Reg 12C of the Strata Schemes Management Regulation 1997 - effect of non-compliance with s 80D - mandatory or directory provisions - position of unit holders and position of third parties - constitution of Annual General Meeting - failure to comply with notice requirements - whethe

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

[REFEREES] - Development of practice of referring the whole of proceedings to retired judicial officers - [REFEREES' REPORTS] - Principles applicable to review of referees' reports in which errors of law are alleged - challenge to conclusions reached upon arhcitects responsibility in respect of building which leaked - whether report should be adopted - [PROCEDURAL FAIRNESS] - whether referee should have provided opportunity to affected party to make submissions in relation to approach taken by r

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

Consumer, Trader and Tenancy Tribunal Act 2001 - Anterior proceedings brought

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

CONTRACTS - general contractual principles - construction and interpretation of contracts - construction of proviso - whether proviso satisfied - held that proviso not satisfied - claim for specific performance dismissed

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

REAL PROPERTY – Strata Titles – Recovery by owners corporation of contributions and expenses under s 80 of the Strata Scheme Management Act 1996 – Whether expenses include legal costs – If so, what legal costs may be recovered – Whether such costs must be claimed in the proceedings for recovery of contributions.

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

CIVIL ENFORCEMENT :- enforcement of fire safety order - exercise of Court's discretion to enforce order where financial hardship - other fire safety measures in place

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

CONTRACTS - property maintenance and caretaking contract for home unit block - owners corporation may terminate for "misconduct" of caretaker - relevant concept of "misconduct" discussed - whether particular episodes and matters amount to "misconduct" - CONTRACTS - right to assign with consent - consent not to be unreasonably withheld - content of qualification discussed - whether withholding of consent to assignment was unreasonable - WORDS AND PHRASES - "misconduct"

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

INTEREST - interest on damages - discretion - compensatory purpose - interest only on amounts paid - interest on costs - form of order.

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

CONTRACT LAW – refurbishment of façade of building premises comprising strata scheme – whether oral agreement by owners corporation to reimburse building developer for cost of refurbishment works – whether terms of relevant conversation created binding agreement – whether strata managing agent representative had authority to bind owners corporation – whether actions of representative ratified by owners corporation - STRATA SCHEMES – powers and functions of owners corporation executive committee

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

REAL PROPERTY – BOUNDARY WALL – TRESPASS – NUISANCE – Whether encroaching boundary wall owned by one or both adjoining owners – whether defendant committed trespass to plaintiff’s property by demolishing wall – whether nuisance created – whether mandatory injunction for restoration of wall should be granted – quantum of damages.

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.

INSURANCE – Home Building Act 1989 – statutory insurance – policy provided indemnity for loss where notification is made within six months of indemnified party becoming aware of such loss, but not after the expiry of the seven year period – whether policy complied with Act - successors in title entitled to benefits of statutory warranties. - DAMAGES – residential building contract – loss arising from construction not in accordance with contract, plans and specifications – rectification – remedia

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

Separate question orders

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

Costs :- whether presumtion of no order as to costs displaced - whether fair and reaonsable for the Council to pay the applicants' costs - appeals against orders served by the Council - orders agreed to be invalid - Council ordered to pay the applicants' costs

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

RESTORE MATTER - Whether matter should be restored to the list

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

Practice and Procedure :- application for determination of a separate question - whether appropriate to separate question of construction where answer may depend on issues of fact and degree - application refused

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

Practice and Procedure :- whether new evidence can be relied on

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

negligence - slip and fall on wet stairs - reasonableness of response to perceived danger - differing expert reports as to slip resistance - relevance of unsubstantiated complaints by residents not called to give evidence - duty of care of ocupiers - large home unit complex

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

EQUITY [338]- Application for interlocutory injunction- Building within strata scheme subject to strata management statement- Defendant proposing to erect doorway contrary to architectural code in strata management statement- Defendant has obtained local government consent- Plaintiff has shown an arguable case- Plaintiff has delayed bringing the application- Absence of prejudice to plaintiff- No loss will be caused to plaintiff if work is performed- Defendant bears risk that court will order dem

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

Tort - Negligence - Breach of statutory duty - Common law duty of care - Statutory authority - Essential fire services - Effective height - Development application - Sprinklers - Occupation certificates - Factor of control - Wednesbury unreasonableness - Control of a structure - Self-imposed duty to take positive action - Standing of Owners Corporation to bring proceedings

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

COSTS - motion to vary costs order following correction of arithmetical error in

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

Costs :- interlinked proceedings - whether any costs order in class 2 proceedings fair and reasonable in the circumstances - respondents unsuccessful on certain issues in class 4 proceedings - whether any apportionment of costs appropriate - applicant ordered to pay respondents' costs of both proceedings

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

COSTS – Security for costs – corporate impecuniosity – where plaintiff is a corporate trustee – absence of evidence that plaintiff will have recourse to trust assets – where there is another plaintiff against whom security would not be ordered – where no real practical probability that costs order might be made against corporate plaintiff alone - where joinder of corporate plaintiff does not significantly expand case.

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

CORPORATIONS – external administration – winding up – creditor’s voluntary winding up – leave to proceed against company in liquidation – whether application appropriately brought by motion in proceedings in which no relief will be sought against company – where proceedings if continued will jeopardise only asset of company – where liquidator neither consents nor opposes leave to proceed.

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

APPEAL - CTTT - res judicata

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

STRATA SCHEMES - statutory debt - expenses - legal costs and disbursements

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

CTTT APPEAL – error of law – expert evidence – Makita principles – whether failure to disclose adequately reasoning by expert – building valuation report – valuation of strata title units – failure to have evidence of actual value of units - ADMINISTRATIVE LAW – standing – whether party a "person".

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

Injunctions and Declarations :- whether strata development contract valid when registered - additional land - development lot - developer not owner of development lot when contract registered - adequacy of concept plans; whether strata development contract enforceable - estoppel, election and waiver; whether time for conclusion of development scheme should be extended; whether strata development contract should be amended - applications dismissed

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

Equity - Rights of subrogation - Insurance Contracts Act - Insurance requirements of Home Building Act 1989 - Insurer having provided insurance under the Home Building Act 1989 - Questions as to what were the limits, if any, to the rights of subrogation of such insurer - Whether insurer was subrogated only to the rights of the builder (who had effected the insurance and paid premiums) whose liabilities had been discharged, so that the insurer could only sue in the name of the builder - Whether t

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

[HOME BUILDING ACT] - Whether definition of "residential building work" in Home Building Act 1989 applicable to Insurance Policy provided by defendant under that Act - [SEPARATE QUESTIONS] - As to identity of person who did "residential building work" and gave warranties under the Act - As to whether the Policy responds to plaintiffs' claims.

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

Power of Roads Authority to grant a short-term lease - of unused public roads - notice - compliance - conditions to exercise of power

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

STRATA TITLES – Common property – Whether waterproof membrane under tiles on uncovered terrace is common property or property of lot owner – Whether lower boundary of cubic space of lot is upper surface of concrete slab or upper surface of tiles on top of slab – Where lower boundary not specified by registered strata plan – Where tiles laid prior to registration of strata plan – Strata Schemes (Freehold Development) Act 1973 ss 5(1), 5(2), 8(1) – DAMAGES – Breach of statutory duty – Loss of rent

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

Statutory construction - levying of contributions - order made under s183 - when it takes effect and when unit entitlement is amended - recording in Register

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

STRATA TITLES – Strata Management Scheme governing adjoining Strata Plans – Construction of Strata Management Scheme – Strata Management Scheme gave owners and occupiers of units in Serviced Apartment Strata Plan exclusive right with owners and occupiers of units in adjoining Residential Strata Plan to use recreation area in Residential Strata Plan’s common property – Owners corporation of Residential Strata Plan closed normal access route to recreation area – Alternative access routes to recrea

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

STRATA SCHEMES – by-laws – proper construction of by-law giving exclusive use of common property (a lift) to a proprietor – terms and conditions attaching to exclusive use – costs attributable to the repair, maintenance, renewal and replacement of the lift – relationship between obligations imposed by by-law and obligation to meet levies for the upkeep of common property generally - STRATA SCHEMES – by-laws – principles of interpretation – to be construed consistently with statutory context – "s

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

Practice and procedure - Security for costs - Delay - Overlapping of two sets of proceedings

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

PROPERTY - Strata plans - Strata Management Statement provided that "owners" of commercial lots in strata building must not use lots as fast food outlets - Lot used by lessee as fast food outlet - Proper construction of Statement - Whether owner permitted lessee to use lot in breach of Statement - Whether owner should be ordered to require lessee to stop using lot as a fast food outlet - LANDLORD AND TENANT - Construction of lease - Whether lessee's use of lot as a fast food outlet in breach of

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