Decisions table

BUILDING AND CONSTRUCTION – claim by owners corporation against persons alleged to be “developers” as defined by Home Building Act 1989 (NSW) s 3A – question of fact as to whether alleged “developers” were parties to building contract APPEALS – drawing of inferences on appeal – evaluation of competing inferences – where primary judge failed to draw inference that respondents were parties to the building contract BUILDING AND CONSTRUCTION – whether developers liable for “design defects” – statuto

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

COSTS – no power to award costs in Adjudication proceedings – no special circumstances – no discretionary reason to award costs

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

HOME BUILDING-individual components of a fire safety system a major defect, completion of residential building work on issue of interim occupation certificate, limitation period for bringing claim for breach of statutory warranty in respect of other defects, preferred outcome

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

COSTS – appeal withdrawn – whether special circumstances for award of costs

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

HOME BUILDING CLAIM – defects and statutory warranties – no evidence or no reasonable basis for conclusion – failure to provide proper reasons – whether rectification work was a necessary and reasonable course to adopt – failure to provide procedural fairness

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

APPEAL – Local Court – leave to appeal – Strata Schemes Management Act 1996 (NSW), Schedule 2, ss 32, 33, 34, 34A and 35 – meaning of “must” – Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; 153 ALR 490; [1998] HCA 28 – whether legislative intention can be discerned that Annual General Meetings are invalid for breach of Strata Schemes Management Act provisions – language, subject matter and objects of the Act – consequences of holding every act in breach void –disclo

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

CIVIL PROCEDURE – application for leave to rely on expert reports and affidavits served out of time – whether in interests of justice to grant leave – where

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

STRATA – minor works – works affecting common property, unauthorised works.

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

Validity of Owners Corporation resolution – removal of tanks installed on common property – application for resolution of a dispute between the Owners Corporation and a lot owner.

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

COSTS - Party/Party - Exceptions to general rule that costs follow the event - Whether Strata Schemes Management Act 2015 (NSW) made adequate provision for the enforcement of rights or remedies which plaintiff sought to enforce in Supreme Court – Application to Supreme Court for declarations to be discouraged where relief to the same effect available in NCAT - Strata Schemes Management Act 2015 (NSW), s 253

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

COSTS – dispute in Strata Scheme – operation of s 90 of Strata Schemes Management Act 2015 (NSW) – undertaking to indemnity costs to Lot Owners by one Lot owner as basis for plaintiff’s actions – orders made preventing defendant from contributing to plaintiff’s costs in capacity as Lot Owner.

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

PRACTICE AND PROCEDURE – strata renewal plan – necessity of position papers prior to mediation in proceedings under s 179 Strata Schemes Development Act 2015 – such position papers to be provided in a timely manner prior to mediation - respondent (dissenting owner) sought security for costs of proceedings – applicability of terms ‘defendant’ and ‘plaintiff’ in the context of the Strata Schemes Development Act 2015 – applicability of term ‘security for costs’ in such proceedings

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

LAND LAW — Strata title — Common property — Whether owners corporation could develop common property in a way which would impede owner’s reasonable access to lot used as car space — Strata Schemes Development Act 2015 (NSW) s 28 — Strata Schemes Management Act 2015 (NSW) ss 106 and 153 LAND LAW — Declarations — Utility — Whether sufficiently defined dispute

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

By-law interpretation, “in keeping with the rest of the building”, whether garden area included in “building”.

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

APPEAL AND REVIEW – judicial review – review of order in criminal jurisdiction of District Court – jurisdictional error – whether District Court judge decision that he lacked power to relieve lot owner in strata scheme of levy imposed by owners corporation infected by jurisdictional error CRIMINAL LAW – effect of annulment of conviction – where applicant convicted in 1993 and 1994 of contraventions of orders made by Strata Titles Board pursuant to Strata Titles Act 1973 (NSW) in proceedings comm

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

STRATA SCHEMES – proceedings

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

CIVIL PROCEDURE – application by builder and developer for leave to bring cross claim against principal certifying authority – whether cross claim maintainable at law – whether principal certifying authority owes duty of care to first plaintiff – whether any liabilities which exist are coordinate – where prior questions of law unable to be quickly and easily resolved – where no prejudice to the principal certifying authority exists aside from costs and inconvenience – leave granted CIVIL PROCEDU

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

PRACTICE AND PROCEDURE – whether to join dissenting owner and/or supporting purchaser/developer to proceedings – designation of respondents – name of Applicant and title of proceedings amended – name of dissenting owner amended – whether conciliation under s 34 of the Land and Environment Court Act 1979 applicable.

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

PRACTICE AND PROCEDURE – whether to join dissenting owner and/or supporting purchaser/developer to proceedings – designation of respondents – name of Applicant and title of proceedings amended – name of dissenting owner amended – whether conciliation under s 34 of the Land and Environment Court Act 1979 applicable.

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

Strata Schemes Management - By-Law – challenge to validity – blanket prohibition on pet ownership

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

Costs - special circumstances, proceedings dismissed as incompetent, cost claimed where no legal representation at hearing, exercise of discretion where substantive issues raised on appeal not resolved.

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

NSW CIVIL AND ADMINISTRATIVE TRIBUNAL – COSTS – when enabling legislation provides for the making of a costs order – discretion to award costs under the Strata Schemes Management Act 1996 – principles as to when fixed sum costs orders are appropriate

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

EQUITY — whether the Development Consent issued in February 1969 by Sydney City Council permits the Plaintiffs, as owners of parking lots in the apartment complex Elizabeth Bay Gardens (“EBG”) who do not reside in EBG, to park their vehicles in those parking lots - meaning of “occupants of the building” in the Development Consent – whether the approval by Council of the plan of subdivision for EBG in October 1970 permits the Plaintiffs to park their vehicles in the parking lots created by the St

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

STRATA – minor works – works affecting common property, unauthorised works.

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

Appeal and cross appeal from proceedings referred by adjudicator under section 164 Strata Schemes Management Act 1996 (NSW) (now repealed) to NCAT – Costs application

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

Statutory interpretation- Strata Schemes Management Act- jurisdiction of the Tribunal to determine claim for damages for breach of statutory duty, meaning of “settle a dispute or complaint”, meaning of “about” when defining disputes by reference to subject matter, retrospective operation of statutory cause of action, limitation on amount that may be awarded for damages. Damages- statutory duty to repair and maintain, continuing breach, causation, multiple breaches causing continuing loss.

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

APPEAL - Strata scheme management - keeping of animals - consent - consent unreasonably withheld - no issue of principle

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

REAL PROPERTY – strata scheme for a residential and commercial building – application of Strata Schemes Management Act 1996 (NSW) – effect of non-compliance with notice requirements for a meeting of the executive committee specified in Sch 3, cl 6 – whether resolution passed by Executive Committee in breach of ss 65A and 80A – whether Executive Committee has authority to instruct legal representatives to settle legal proceedings PROCEDURE – consent orders – whether consent orders may be set asid

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

Strata schemes - where appellant applied for orders under section 232 of the Strata Schemes Management Act 2015 (NSW) – where Tribunal found it had no jurisdiction to make the orders sought – whether Tribunal made an error of law – whether leave should be granted for appellant to appeal on grounds other than a question of law

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

PRACTICE AND PROCEDURE – leave to appeal from summary dismissal of tortious claims for malicious prosecution and abuse of process – where relevant proceedings have not terminated – where immediate purpose for bringing proceedings was proper – whether manifest error or question of principle warranting leave – no such error or principle PRACTICE AND PROCEDURE – leave to appeal from interlocutory decision dismissing application to join husband of applicant as second plaintiff, and amend statement o

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

CIVIL PROCEDURE – Referral to referee – Adoption of referee report – Whether report should be rejected for actual or apprehended bias – Whether referee failed to comply with rules of natural justice

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

Strata Schemes Management Act – Appeal from

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

Home Building – late expert evidence taking claim beyond Tribunal jurisdictional limit – exercise of procedural discretion

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

COSTS – Action by a solicitor to recover costs – Solicitor did work for defendant from February 2009 to 8 July 2010 and rendered a bill – No costs agreement in existence until 9 July 2010 when solicitor commenced doing further work for defendant, after having delivered a costs agreement which could be accepted by conduct – Defendant paid for work covered by fee agreement for work done after 9 July 2010 – Application by defendant for dismissal of claim

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

STATUTORY CONSTRUCTION – enforcement proceedings concerning an order of a Strata Schemes Adjudicator made

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

Breach of statutory duty to maintain and repair common property, causation, jurisdiction of Tribunal to award damages.

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

STATUTORY CONSTRUCTION – enforcement proceedings concerning an order of a Strata Schemes Adjudicator after repeal of the Strata Schemes Management Act 1996 (NSW) – effect of transitional provisions of Strata Schemes Management Act 2015 (NSW) and Interpretation Act 1987 (NSW) – right to bring enforcement proceedings, as if the Strata Schemes Management Act 1996 (NSW) had not been repealed, preserved under Sch 3 Cl 7 of Strata Schemes Management Act 2015 and s 30 of the Interpretation Act WORDS AN

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

REAL PROPERTY — Strata title — General matters — whether Ch 5 of the Strata Schemes Management Act 1996 (NSW) has the effect of excluding a claim for common law damages — construction of s 226 of the Strata Schemes Management Act 1996 (NSW) — whether appellant has a right or remedy arising “apart from this Act” — whether appellant’s right to sue at common law is preserved by s 226

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

Strata Schemes Management Act- commencement of proceedings on behalf of Owners Corporation; rule in Foss v Harbottle Application by interested person- scope of s 226(1)(b) of the Strata Schemes Management Act 2015 (NSW);

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

Strata Schemes---Appeal from Adjudicator---Definition of ‘Lot’---Definition of ‘common property’---Whether dropped ceiling formed part of the Lot or part of the common property

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

CONTRACT – STRATA SCHEMES – strata management statement – construction of clauses within statement – whether failure to pay in accordance with statement gives rise to cause of action – BREACH – whether statement breached by failure to pay in accordance with “payment notice” – whether auditor validly appointed WORDS AND PHRASES – meaning of “duly audited” – “reasonable details” – purpose of having “duly audited payment notice” JURISDICTION – whether District Court of NSW has jurisdiction to deter

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

COSTS – indemnity costs – offer of compromise – whether plaintiff obtained a result no less favourable than offer – whether component of agreed verdict should be seen as damages in the nature of interest – whether court should otherwise order for purpose of UCPR r 42.14

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

Jurisdiction of Tribunal to award damages for breach of statutory duty, strictness of duty to repair and maintain, exculpations from duty to repair and maintain, burden of proof, definitions of lot property/common property

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

Jurisdiction of Tribunal to award damages for breach of statutory duty, strictness of duty to repair and maintain, exculpations from duty to repair and maintain, burden of proof, definitions of lot property/common property

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

CIVIL PROCEDURE — Admissions — Withdrawal – Civil Procedure Act NSW (2005) ss 56, 58, 64 — where no evidence to explain why admissions were made — where applicant will suffer prejudice if the application is refused and respondent with suffer prejudice if the application is granted

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

Civil and Administrative Tribunal (NSW) – strata schemes – special by‑law – interpretation of special by‑law – application of special by‑law to lift maintenance agreement – jurisdiction of Tribunal

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

Indemnity costs – whether the applicant had prospects of success at the relevant time

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

Setting aside consent order – interlocutory application

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

NEGLIGENCE - public liability – owners’ corporation – whether electrical system properly maintained – system of inspection and repair – whether reasonable PROOF – balance of probabilities – inferences – whether reasonable and definite ONUS – whether discharged on the evidence CONTRIBUTORY NEGLIGENCE DAMAGES – whether claim for gratuitous domestic assistance satisfies threshold

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

PUBLIC ROAD – dedication at common law – unmade road – land described as road in subdivision created

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