Decisions table

LAND LAW – strata scheme – appointment of compulsory strata managing agent – s.237 of the Strata Schemes Management Act 2015 (NSW)

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

• Justin McLean lot owner
• Marnie Punch lot owner
• The Owners – Strata Plan No 79132 owners corp

Application for removal of strata committee member dismissed as applicant declined to press it; application for compulsory strata manager appointment dismissed as premature; partial consensual resolution achieved regarding garden and driveway maintenance.

LAND LAW – Strata title – whether contributions should be varied – whether to appoint compulsory strata managing agent

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

• The Owners – Strata Plan No. 12971 owners corp
• Elabelzan Pty Ltd party

The Tribunal made consent orders allowing the Owners Corporation access to Lot 3 to conduct inspections and exploratory destructive works with notice requirements and make-good obligations, but dismissed both parties' applications for costs.

Owners Corporations

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.

LAND LAW - Strata title - Removal of a lot owner as a member of the strata committee of the owners corporation

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

• Max Build Pty Ltd builder
• The Owners – Strata Plan No 54026 owners corp
• TOP Consulting Group (NSW) Pty Ltd consultant

The court ruled that expert reports by Timothy Haynes and portions of David Madden's report are inadmissible because the experts lacked qualifications to identify building defects and relied on unqualified observations.

• Carolyn Evans lot owner
• The Owners – Strata Plan No. 40841 owners corp

The appeal was dismissed and the Tribunal's decision refusing to find a breach of the statutory duty to repair and maintain common property, to make a work order, or to appoint a compulsory strata managing agent was upheld.

Owners Corporations

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

Scheme dispute - Functions of strata company - Council - Duties of members of council - Application for appointment of Administrator of strata company - Breakdown in relationship between owner and member of council - Factors to consider to appoint Administrator - Whether strata company contravened s 91, s 119 or s 137 - Whether strata company contravened s 104 or s 109 - Whether an unelected council - Whether actions of strata company continuing - Whether strata company incapacitated, beset by difficulties or so dysfunctional as to render it unable to function at a satisfactory level - Tribunal proceeding - Whether necessary for Tribunal to intervene to appoint Administrator - Discretionary power to make declarations and orders to resolve scheme dispute or proceeding

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

• Vicki Jollow lot owner
• The Owners – Strata Plan No. 61407 owners corp

The Tribunal reallocated unit entitlements for the 13-lot strata scheme based on market valuations, but dismissed the claim for refund of overpaid levies as the original owner was not a party to the proceedings.

• The Owners – Strata Plan No 12299 owners corp
• Stephen Alexander Mackay lot owner

The appeal was upheld on grounds of procedural unfairness regarding the Tribunal's consideration of section 150 SSMA and the unresolved downpipe issue, and the matter was remitted to the Consumer and Commercial Division for redetermination with no order as to costs.

• The Owners – Strata Plan No. 91684 owners corp
• Parkview Constructions Pty Ltd builder
• Sydney Olympic Park Authority developer
• WSP Buildings Pty Ltd consultant
• Bates Smart Pty Ltd consultant
• McKenzie Group Consulting (NSW) Pty Ltd consultant
• Site 3 Development Co. Pty Ltd party
• Jianshan Xiong party
• James Fong party
• BG&E Facades Pty Ltd contractor

Leave to amend cross claim against WSP and Bates Smart refused due to inadequate pleading of causation regarding how alternative non-combustible cladding would have been selected without their alleged breaches.

• Sabrina Gabriela lot owner
• The Owners – Strata Plan No. 52108 owners corp

The Appeal Panel upheld the Access Orders made at first instance, dismissed the appellant's appeal, and ordered the appellant to pay the respondent's costs of the appeal as special circumstances warranted a costs award pursuant to section 60(3)(e) of the Civil and Administrative Tribunal Act.

• Gokani-Robins Pty Ltd lot owner
• ACG & KCG Investments Pty Ltd lot owner
• The Owners – Strata Plan No 77109 owners corp

The appeal against the Tribunal's dismissal of the application to declare Special By-Law 16 (a fire safety by-law) invalid as harsh, unconscionable or oppressive was dismissed, upholding the Tribunal's finding that the by-law was valid.

• Mohamed Mowjoon Atham Bawa lot owner
• The Owners - Strata Plan No 72125 owners corp

The appeal was allowed in part; the costs order made by the Tribunal on 8 August 2024 was set aside and the Appeal Panel will determine the costs application itself, while the substantive claims under sections 85 and 237 of the Strata Schemes Management Act were dismissed.

• The Owners - Strata Plan No 55468 owners corp
• Michael Adamo lot owner
• Jessica Silberstein lot owner
• Michael Hans Engelbert party
• William Paul O'Brien party
• Terrance Matthew Gagen party
• Strata Choice Pty Ltd manager
• Hecker Australia Pty Ltd party

The appeal by the owners corporation was dismissed and it must pay 80% of the respondent's costs; the appeal by Michael Adamo regarding removal from strata committee was refused leave but his appeal regarding the restraint order was allowed and the restraint order was set aside.

• The Owners - Strata Plan No. 81376 owners corp
• Dyldam Developments Pty Ltd builder
• Amaline Properties Pty Limited developer
• Insurance Australia Limited t/as Lumley Insurance insurer

The court answered all three separate questions no, finding that claims made under the home warranty insurance policy were outside the period of insurance and long stop limitation period, with the insured event (builder insolvency) only occurring in 2022 after the 10-year long stop period had expired on 4 September 2018.

• Samantha Sydney lot owner
• The Owners – Strata Plan No 15000 owners corp

The Tribunal varied the special levy of $45,000 to be paid in 12 equal monthly instalments rather than 3 months, ordered recalculation of the lot owner's levies accounts with consequential adjustments to interest, penalties and fees, and granted leave for further applications regarding interest relief.

• Chehab Investments Pty Ltd lot owner
• Chehab Asset Management Pty Ltd lot owner
• The Owners – Strata Plan No. 89670 owners corp

The Tribunal found that the initial allocation of unit entitlements for Strata Plan No. 89670 was unreasonable because it was based on incorrect architectural plans and ordered reallocation of unit entitlements in accordance with the market valuation report dated 15 February 2024.

• The Owners – Strata Plan No 63491 owners corp
• Matt Early Pty Ltd lot owner

The Tribunal ordered the respondent to allow access to Lot 3 for investigation of the wall between Lots 2 and 3 and preparation of a scope of works for repairs, but dismissed the applicant's claims for immediate removal of the trommel holding stockpile and prohibition on storage of skip bins on common property.

• Agnes Juskey lot owner
• Roman Juskey lot owner
• The Owners – Strata Plan No 62732 owners corp

The Appeal Panel dismissed the appellants' appeal for lack of merit and lateness, and ordered the appellants to pay the respondent's costs of the appeal due to special circumstances including a 582-day delay in filing the appeal, weak appeal grounds, and the appellants proceeding despite being warned of the weakness.

• White House Developments Pty Ltd developer
• The Owners - Strata Plan No 70276 owners corp

The respondent's application to vary the appeal costs order was dismissed and the respondent must pay the appellant's costs; the appellant's application to reopen the appeal was dismissed and the appellant must pay the respondent's costs.

Owners Corporations; Costs

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

BUILDING AND CONSTRUCTION – building works on a large residential apartment building – Owners of strata plan, as successors in title, rely upon entitlements to sue on statutory warranties against the builder and developer – Home Building Act 1989 (NSW), ss 18B, 18C, 18D – determination of whether defects were ‘major’ defects – Home Building Act 1989 (NSW), s 18E(4) BUILDING AND CONSTRUCTION – whether District Court empowered to make a ‘work order’ where the alternative claim for relief, a money

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

• Strata Plan No 8017 trading as The Owners – Strata Plan 8017 owners corp
• Makawi Manly Pty Ltd developer
• CF Group Piling Pty Ltd contractor

The plaintiff was granted leave to amend its statement of claim to add allegations against the first defendant and to join CF Group Piling Pty Ltd as a second defendant in relation to damage caused to the plaintiff's building by excavation and shoring works on an adjacent property.

• Jin Beom Choi lot owner
• The Owners- Strata Plan No. 52482 owners corp

The Appeal Panel dismissed Mr Choi's appeal against directions made by the Tribunal for lodgment of documents and submissions relating to costs of the first instance proceedings, refusing leave to appeal on the grounds that the directions were routine procedural matters that did not determine substantive rights.

• Rao Nallamouthou lot owner
• The Owners-Strata Plan No 39988 owners corp
• Zeljko Milic party
• Kirshan Kumar Khanna party
• Shashi Bhat party
• Marina Fugazzi party

The Tribunal dismissed the owners corporation's costs application, finding that special circumstances had not been established to depart from the usual principle that each party bear its own costs.

UNIT TITLES – application by owners corporation for recovery of unpaid levies and associated enforcement expenses pursuant to section 31 of the Unit Titles Management Act 2011 – costs involved in a bankruptcy notice – where the amount sought increased during the course of the litigation Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 6, 7, 26, 48 Unit Titles (Management) Act 2011 ss 31, 95 Bankruptcy Act 1966 (Cth) ss 40 (1)(g), 41

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

• Natalie Ciric lot owner
• The Owners - Strata Plan No. 67113 owners corp
• Joel Blanch lot owner

The second respondent was ordered to comply with Special By-law 8 by restoring carpet or floor coverings to the flooring in lot 17 or removing, treating or replacing the flooring so it complies with acoustic requirements, with testing to certify compliance within 60 days.

• Lorette Angela Lewis lot owner
• The Owners - Strata Plan No. 32924 owners corp

The appeal was allowed in part: Special By-Law 2 was declared invalid because the owners corporation lacked power to make it without the appellant's written consent, and Special By-Law 3 was declared void for uncertainty due to the absence of Annexure C; the appeal regarding Special By-Law 1 was dismissed.

UNIT TITLES – where owners corporation claimed $1,803.04 for the cost of investigating, locating and rectifying a leaking hot water control valve assembly in the respondent’s unit and legal and debt recovery expenses totaling $21,524, as expenses incurred in carrying out the owners corporation’s functions that were necessary because of a willful or negligent act or omission, or breach of the owners corporation’s rules by the respondent under s 31 of the Unit Titles (Management) Act 2011 (UTMA) – whether the hot water control valve assembly is common property – whether the hot water control valve assembly is a facility for the provision of a utility service for the potential benefit of all units and therefore the owners corporation responsibility to maintain under s 24(1)(e) of the UTMA – where hot water control valve assembly found to be unit property and therefore the respondent’s responsibility to maintain in a state of good repair in accordance with rule 1.3(1) of the default rules – whether legal and debt recovery expenses (including the costs of legal advice before taking legal action, the cost of representation by counsel at the hearing and strata manager’s fees charged in connection with the legal action) were reasonably incurred and reasonable in amount – where, save for the disallowance of some of the strata manager’s fees, the owners corporation was entitled to recover all of its legal and debt recovery expenses, including interest pursuant to s 94(1) of the UTMA List of Legislation: ACT Civil and Administrative Tribunal Act 2008 ss 8, 16, 48 Building Act 2004 ss 29, 42 Legal Profession Act 2006 s 300(2) Legislation Act 2001 s 132 Unit Titles Act 2001 ss 13, 34, 35 Unit Titles (Management) Act 2011 ss 31, 115, 125 Subordinate

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.

• The Owners – Strata Plan No. 91174 trading as Owners Corporation Throsby Street owners corp
• RPF Building Pty Limited builder
• RPF Throsby Pty Limited developer

The Court answered a separate question in the negative, determining that the plaintiff cannot continue proceedings in respect of building work certified as completed in accordance with the Deed, and ordered the defendants' costs to be paid by the plaintiff.

LAND LAW — strata title — strata renewal plan for redevelopment — Strata Schemes Development Act 2015 (NSW) — one dissenting owner not a party to the proceedings — strata renewal plan given effect

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

• White House Developments Pty Ltd lot owner
• The Owners - Strata Plan No 70276 owners corp

The appeal was allowed in part: the owners corporation was ordered to arrange repairs to Lot 14 according to specified scope of works within prescribed timeframes, and the applicant must provide reasonable access for such work; the appeal was otherwise dismissed regarding claims for loss of rent and basement wall repairs.

APPEAL- whether an application under s 149(1)(c) of the Strata Titles Management Act must be brought within the time of 28 days provided for by r 23(3)(b) of the Civil and Administrative Rules

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

• The Owners - Strata Plan No. 94197 owners corp
• Secretary of the Department of Customer Service government
• Robert Touma builder

The proceedings were dismissed by consent but the first defendant was ordered to pay the plaintiff's costs, excluding costs related to expert reports and a notice of motion, because the plaintiff's judicial review had a very good chance of success due to the first defendant's failure to provide notice before issuing the second Building Work Rectification Order and the third BWRO amounted to acquiescence to the plaintiff's concerns.

• The Owners – Strata Plan No. 12185 owners corp
• Lisa Brown lot owner

The appeal by the Owners Corporation against the Tribunal's decision to approve a common property rights by-law for air conditioning installation was dismissed and leave to appeal was refused.

COSTS – certificate under Suitors’ Fund Act 1951 (NSW) sought – unsuccessful respondent’s submissions had led lower court into error – unsuccessful respondent sought to defend erroneous decision on appeal – inappropriate to grant certificate

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

ADMINISTRATIVE LAW – review for denial of procedural fairness – review on the grounds of irrelevant and relevant considerations – remedies – discretionary factors – delay – plaintiff is the Owners Corporation of a multi-residential apartment building erected in suburban Sydney – the second defendant is the New South Wales Civil and Administrative Tribunal (“NCAT”) – the first defendant is a Council constituted under the Local Government Act 1993 (“the Council”), and the developer of the complex

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

UNIT TITLES – meetings – Unit Titles (Management) Act 2011 – omission of special purpose fund budget from notice of annual general meeting – the common law of meetings – argument that an entire meeting is void due to the omission of one resolution from the meeting notice and from the meeting agenda – the effect of the Unit Titles (Management) (Meeting Agenda) Guidelines made under the Unit Titles (Management) Act 2011 – whether entire annual general meeting is void for irregularity under section 129(1)(e)(i) – meaning of ‘irregularity’ – considerations in decision-making under section 129(1)(e)(i) - meeting not void Legislation cited: Legislation Act 2001 ss 146, 156 Unit Titles (Management) Act 2011 ss 41, 72, 75, 129(1)(e)(i), Schedule 3, ss 3.6, 3.7, 3.8, Dictionary Subordinate Legislation cited: Unit Titles (Management) (Meeting Agenda) Guidelines 2020 Unit Titles (Management) (Meeting Agenda) Guidelines 2023

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

• The Owners - Strata Plan No 95242 owners corp
• Karimbla Properties (No 42) Pty Limited developer
• Karimbla Constructions Services (NSW) Pty Ltd contractor
• Guardian Protection Services (Aust) Pty Ltd contractor
• Plumb Group Pty Limited contractor
• Saba Bros. Tiling Pty Ltd contractor

The court fixed costs thrown away at $25,000 for the first and second defendants and $3,000 each for the third, fourth and fifth defendants, or alternatively referred the question to a costs assessor on a costs-follow-the-event basis.

APPEAL — question of law — Civil and Administrative Tribunal — proceedings for breach of statutory warranties implied by Home Building Act 1989 (NSW) in residential building work — six year warranty period — Owners Corporation commenced proceedings four months after expiry of six year period — whether proceeding commenced in time — Senior Member found Owners Corporation commenced within further six month period authorised by s 18E(1)(e) because breaches only became apparent in last six months of

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

LAND LAW — strata title — strata plan — proposed variations to strata renewal plan for redevelopment — whether proposed variation is of a minor nature that does not affect the plan in any substantial way — s 182 of the Strata Schemes Development Act 2015 (NSW) — whether proposed variation to the proposed sale price of a lot is “just and equitable in all the circumstances” — cl 36 of the Strata Schemes Development Regulation 2016 (NSW)

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

• Ayten Akdogan, Khaled Mourad, Jillian Dolby, Bronwyn Whale, Albert Ayoub and Ameen Ayoub lot owner
• The Owners - Strata Plan No 55665 owners corp

The respondent's costs application was dismissed and each party was ordered to pay their own costs of the appeal, which had been withdrawn by the applicants due to lack of standing.

LAND LAW – Strata title – Construction of poorly drafted by-law – Heading of by-law at least part of context in which terms to be construed whether or not part of by-law and whether or not by-law regarded legislative in character – By-law in question does not encompass approval of relevant works – By-law could not authorise strata committee to approve works that are not minor renovations LAND LAW – Strata title – No reason why special resolution referred to in s 108(2) authorising change to comm

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

• The Owners - Strata Plan No 87639 owners corp
• Karimbla Properties (No4) Pty Ltd developer
• Karimbla Construction Services Pty Ltd builder
• Karimbla Construction Services Pty Ltd (NSW) builder

The defendants' motion for security for costs was dismissed, with the court finding no reason to believe the owners corporation would be unable to pay an adverse costs order and declining to order security as a matter of discretion.

COSTS-respondent’s application for 50% of its costs of appeal-appeal from decision by the Tribunal in proceedings referred to Tribunal by an adjudicator in which the Tribunal has no power to award costs- appeal also concerned with some matters falling within the original jurisdiction of the Tribunal-appeal unsuccessful on all matters except in relation to a costs order made by the Tribunal -special circumstances for making a costs order required to be established as provided for in s 60 of the C

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