Decisions table

LAND LAW – easements – creation of easements – creation by prescription – long use of land from late 1880’s and from 1981 – whether doctrine of lost modern grant applies where identity of owners of land unknown from 1880s to 2008 – held that easement by prescription could still arise – use sufficiently open that a diligent owner would have been aware of it LAND LAW – easements – creation of easements – creation under statute – applications under s 88K Conveyancing Act 1919 (NSW) – easements for

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

By-law banning all animals

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

HOME BUILDING – Time to commence proceedings – consideration of interim and final occupation certificates – collateral review.

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

By-law – construction of by-law – consent to amend by-law – damages

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

CIVIL PROCEDURE – Personal injury claim – Negligence – Strata Scheme – Failure to take reasonable care – tree felling – procedures not followed for authorisation of work – duty of care – engagement of professional contractor

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

LAND LAW – strata title – common property – maintenance and repair of common property – long-standing defects and delays - functions of owners corporation – alleged breach of statutory obligation for maintenance and repair - recent compulsory appointment of strata manager by tribunal – commencement of work and planning for further work – discretion not to make orders

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 – unreasonable refusal – objective test – reasons – subsequent evidence CONSTITUTIONAL LAW – Commonwealth Constitution – jurisdiction - whether an owners corporation is a “resident” for the purposes of s 75(iv) of the Constitution

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

Costs on appeal

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

LAND LAW – strata title –strata renewal plan given effect

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

COSTS - Strata Schemes - withdrawal of application - special circumstances

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

Strata management - compulsory strata manager - standing of lot owners to challenge by-law under SSMA s 150

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

Repeal of a by-law unreasonably refused – change of by-law conferring exclusive rights over common property for car parking.

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

STRATA SCHEMES MANAGEMENT – building new residential area in common property – whether authorised in accordance with s 65A of the Strata Management Act 1996 – whether discretionary refusal of relief argument available on appeal – point not run at first instance

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

CONTRACT – building management agreement – whether and when agreement existed – terms of the agreement – incomplete or uncertain terms – statutory illegality – validity of contract under s67 of Strata Schemes Management Act 2015 (NSW) ESTOPPEL – conventional estoppel – reply to defence of statutory illegality – whether defendant estopped from denying it entered into a binding agreement. DAMAGES – claim for loss of profit – whether overhead expenses required to be taken into account proportionate

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

APPEAL – reallocation of strata unit entitlements – staged stepped analysis – failure to apply correctly

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

CIVIL PROCEDURE – discontinuance of proceedings – leave of court – terms on which proceedings discontinued – where plaintiff seeks leave to discontinue COSTS – party/party – general rule that costs follow the event – proceedings discontinued or dismissed –proceedings not commenced with authority of members of body corporate – recent resolution not to ratify commencement of proceedings – whether costs should be payable on indemnity basis – whether gross sum costs order should be made – whether or

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.

PRACTICE AND PROCEDURE – Leave to appeal – dismissal of application for summary dismissal – abuse of process – failure to enquire about the value of works for which a work order is sought under the Home Building Act prior to the commencement of proceedings.

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

Costs

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

STRATA SCHEMES---Application for special privileges by-law---Whether unreasonably refused

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

CIVIL PROCEDURE — Cross-vesting — Transfer to Federal Court — Special federal matter – whether Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 6 required proceedings to be transferred to the Federal Court as a “special federal matter” – whether proceedings “in bankruptcy” under Bankruptcy Act, s 27 – distinction between exercising jurisdiction “in bankruptcy” and recognising the effect of provisions of the Bankruptcy Act – whether proceedings a “special federal matter” where trustee in

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

Anshun estoppel and abuse of process in Tribunal as full defence to a Strata and Community Schemes application

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

Strata management - by-laws and covenants - interpretation - maintenance and repairs

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

STRATA SCHEMES MANAGEMENT ACT - s153 – Smoking as a Hazard and Nuisance

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

LAND LAW – strata title – leasehold strata scheme – enforcement of statutory warranties – whether holder of a 99-year lease a “successor in title” under the Home Building Act 1989 (NSW)

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

Costs - Owners Corporations duty to maintain and repair common property, damages for breach of such duty, costs, informal offer, rejection of offer, conduct of proceedings, indemnity costs

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

Strata – consent orders – jurisdictional error – denial of procedural fairness – right to inspect documents protected by legal professional privilege – extending time under section 41 of the Civil and Administrative Tribunal Act 2013

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

Whether the respondent has breached both By-laws 9 and 16 – whether the evidence is sufficient to disclose all breaches alleged or whether only some breaches have been made out – whether a penalty for a breach of each By-law should be imposed rather than a penalty for the particular actions which may constitute a breach of one or both By-laws.

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

COSTS – special circumstances – indemnity costs - lump sum costs order

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

Strata scheme – installation of security cameras on common property by unit holder – no by-law or resolution of owners corporation in support – contrary by‑law – direction to remove by owners corporation – compulsory appointment of strata manager

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

COSTS – rr 38 and 38A Civil and Administrative Tribunal Rules 2014 – discretion – party unsuccessful on application for leave to appeal – usual order – successful party entitled to costs

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

TORTS – miscellaneous torts – right of support – application of s 177 of the Conveyancing Act 1919 (NSW) – whether loss of support caused damage to adjoining property NEGLIGENCE – essentials of action for negligence – whether there was a failure to take reasonable care – whether any failure caused damage NEGLIGENCE – apportionment of responsibility and damages – onus of proof CIVIL PROCEDURE – pleadings – amendment – joinder of plaintiffs who are otherwise statute barred

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

STRATA SCHEMES – s 126 Strata Schemes Management Act 2015 – Work approval order – limitations on making order – meaning of unreasonably refuse – relevant considerations – individual objectors personal views not determinative.

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.

COSTS – special circumstances

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

Strata Schemes – damages – alteration to common property

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

Appeals - jurisdictional error – proceedings for the imposition of a civil penalty – appeals to the Tribunal or to a Court

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

Unit Entitlement – unreasonable allocation

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

STRATA SCHEMES---Orders under Strata Scheme Management Act 1996 (NSW)---Operation of savings and transitional provisions under Strata Schemes Management Act 2015 (NSW)---Whether orders expired---Whether Lot owner had failed to comply with orders---Whether owners corporation should be granted access to perform work

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

APPEALS – Leave to appeal an interlocutory decision – application for summary dismissal – principles applicable – issue raised on appeal not raised in proceedings at first instance – relevance of prospect if appeal to superior court in exercise of discretion to grant leave. SUPREME COURT – Referral of questions of law – refusal to refer.

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

CIVIL PROCEDURE — Experts reports served in breach of Court orders – Leave to rely upon – Exceptional circumstances - Hearings – Adjournment application

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

COSTS - appeal withdrawn - whether special circumstances exist for an award of costs

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

LAND LAW – Strata title – By-laws – validity of by-law restricting the use of a lot LAND LAW – Strata title – owners corporation – liability of owners corporation – no cause of action lies for breach of statutory duty in respect of passage of invalid by-law WORDS AND PHRASES – “dealing”

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

COSTS – security for costs – relevant factors – impecuniosity – delay – risk of stultification – plaintiff’s impecuniosity attributable to the defendant’s conduct COSTS – security for costs – plaintiff strata corporation – liability of members

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

STRATA SCHEME – legal test for an owners corporation not functioning satisfactorily pursuant to s.237(3)(a) of the Strata Schemes Management Act – legal test for an owners corporation failing to perform one or more of its duties pursuant to s.237(3)(c) of the Strata Schemes Management Act APPEAL – whether findings that the Scheme was functioning satisfactorily, that agreements were not harsh or unconscionable or for an improper purpose were manifestly unreasonable and against the weight of evide

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

Strata management – relief on refusal to make by-laws - SSMA ss 126, 149, 232, 240

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

LAND LAW — Easements — Whether easements created by conveyances in 1839 bind present-day registered proprietors CIVIL PROCEDURE — Court administration — Court powers — Whether successor in title can reopen ex parte proceedings in which orders were made that affect property succeeded to

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

COSTS – s 60 Civil and Administrative Tribunal Act, 2013 – special circumstances – new evidence first produced on appeal – no conduct of parties responsible for failure to provide evidence at original hearing – parties raising irrelevant and unnecessary issues.

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

COSTS - whether special circumstances warranting an order for costs – whether refusal of offer of settlement constitutes special circumstances

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

Home Building – Time to commence proceedings – Validity of interim occupation certificate

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