Decisions table

Strata Schemes Management Act- reallocation of unit entitlements, exercise of discretion

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

PROCEDURE – whether there should be a separate determination as to whether the fifth defendant owed the plaintiff a duty of care – whether plaintiff’s claim as to fifth defendant’s breach of covenant of quiet enjoyment should be struck out or separately determined – whether plaintiff should be given leave to amend pleadings to meet strike out application

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

PROCEDURE – civil – commencement of proceedings contrary to Uniform Civil Procedure Rules (NSW), r 7.1(3) and out of time – power to dispense with requirement of rules – Civil Procedure Act 2005 (NSW), s 14 REAL PROPERTY – strata titles – claim by owners corporation of recovery costs – reasonableness of such costs incurred and claimed – whether costs claimed must be proportionate – referral to assessment of costs – Strata Scheme Management Act 1996 (NSW), s 80

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: whether fair and reasonable that the respondent pay the applicant’s costs – whether respondent engaged in unreasonable conduct during the proceedings – whether costs should be awarded in a fix sum or as agreed or assessed .

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

PRACTICE AND PROCEDURE – whether there should be separate determination of whether plaintiff has suffered damage by reason of the matters it alleges in its list statement

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

REAL PROPERTY – Crown land – sub-leases of berths in a marina – whether use of certain additional berths by sub-lessor constituted breaches of headlease – whether sub-lessor in breach of sub-leases by doing something which might prejudice or give grounds for termination of its interest under headlease – whether existence of additional berths required sub-lessor to vary tenant’s contributions ENVIRONMENTAL PLANNING LAW – Local Environmental Plan provides that agreements imposing restrictions upon

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

PRACTICE AND PROCEDURE – Costs – Security for costs – Whether reason to believe that corporation will be unable to pay its costs – Whether exercise of discretion requires consideration of the prospects of success or failure of a party’s action – Whether cross claim against third party is defensive in nature – Quantum of security

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

PRACTICE AND PROCEDURE – Costs – Departing from the general rule – Late joinder of a defendant – Plaintiff’s delay in conduct of proceedings – Claims that failed or were abandoned – Expert reports prepared but not relied on – Costs as between the defendants PRACTICE AND PROCEDURE – Costs – Interest on costs – Where plaintiff guilty of unexplained delays – Whether reasons for delay are relevant to question of whether interest on costs should be awarded

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

CIVIL – application to transfer proceedings from NSW Civil and Administrative Tribunal and Local to Supreme Court – single justiciable controversy over deficient building works and rectification required – longstanding dispute – order for mediation – if mediation fails, preliminary view that court order for expedited hearing at Supreme Court or Tribunal

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

Strata and Community Schemes - appeal from Adjudicator’s order - order invalidating annual general meeting resolution - non-compliance with SSMA at AGM - s 153(2) discretion - whether there is a discretion in the circumstances

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

APPEAL –Civil and Administrative Tribunal – appeal by appellant builder against an order that he pay respondent $500,000 and costs – appeal lodged out of time – delay short but prospects of success minimal – extension of time refused PROCEDURAL FAIRNESS – opportunity to present evidence and cross-examine witnesses – self-represented party - COSTS – whether special circumstances exist warranting an award of costs – unmeritorious appeal – non- compliance with directions – unnecessarily disadvantag

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

DEVELOPMENT CONSENT: deeming of a development consent from a building approval granted in 1962 – residential flat building with common laundry/toilet facilities – whether the owners of Lot 15 are entitled to a complying development certificate approving the removal of the common facilities and/or entitled to exclude other lot owners from using those facilities – whether the complying development certificate authorising those works is valid – failure to obtain “owner’s consent” from owners’ corpo

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.

LEGAL PRACTITIONERS – obtaining instructions from owners’ corporation – director of lot owners with minority interest in plaintiff owners’ corporation appointed as representative to provide instructions in relation to litigation – other lot owners with majority interest purported to instruct lawyers to settle the dispute at an invalidly held meeting contrary to representative’s instructions –representative’s authority has not been revoked – whether plaintiff’s solicitors and barrister were requi

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

PRACTICE AND PROCEDURE – adoption of referee's report – expert conclave – whether expert under misapprehension that agreement with other expert was required at the expense of his own views – whether in the interests of justice not to adopt referee’s report – referee not in error

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

CONTRACT – breach of statutory warranty – jurisdiction – assessment of damages

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

STRATA AND COMMUNITY SCHEMES—reallocation of unit entitlements—withdrawal of application—fundamentally flawed application—costs—misconceived application

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

STRATA SCHEME - appeal against adjudicator’s orders - excessive levies - legal costs of owners corporation

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

Lending of builder’s licence to unlicensed person, agency of ostensible authority

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

Defective work, interpretation of section 18D(2) of the Home Building Act 1989, apportionable claims under section 34 of the Civil Liability Act

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

Civil and administrative Tribunal (NSW) – appeal – three year limitation period for consumer claims – date when the cause of action first accrued.

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

BUILDING AND ENGINEERING CONTRACTS – Remedies – Claim for breach of statutory warranties – Whether claim in time – Home Building Act, 1989 ss 18B, 18E PRACTICE – Adjournment – Discretionary considerations – Extended failure to comply with directions to file evidence - No proper or adequate explanation – Adjournment to file evidence refused.

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

CONTRACT – caretaker agreement made under the Strata Schemes Management Act 1996, Part 4A – caretaker appointed in 2004 to provide caretaking services to two strata schemes and one additional stratum lot of a commercial/residential building complex divided into 3 parts – the caretaker, the two owners corporations and the owner of the stratum lot are all parties to the caretaker agreement – one of the two owners corporations alleged breaches of the caretaker agreement and in July 2012 unilaterall

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

Effect of winding up of proceedings in NCAT – for the purposes of ss. 440D and 500(2) of the Corporations Act 2001 - Is NCAT a court - can proceedings be continued without leave of the Court.

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

Resolution under s 62(3) of the Strata Schemes Management Act 1996; power to make a special by-law; whether a by-law should be invalidated

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

Assessment of damages; claim by owners corporation in respect of defects in the common property; exclusion of damages wholly within lots; exclusion of GST component.

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

PROCEDURE – civil – judgments and orders – application to set aside consent orders that owners corporation indemnify plaintiff lot owners in proceedings and pay costs of defendants in those proceedings – where second defendant appointed as strata managing agent under Strata Schemes Management Act 1996 (NSW), s 162 with all powers of executive committee of owners corporation – where executive committee resolutions appointing legal representative and instructing it to sign consent orders on behalf

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

EQUITY – Offer of compromise made pursuant to rule 20.26 of the Uniform Civil Procedure Rules- Offer not expressly stated to be costs to the time of the offer being made- Issue as to whether the offer should be taken to be to pay costs up to the time of making the offer or rather to the time of acceptance of the offer

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

By-law, exclusive use

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

Renewal of proceedings, appeal from adjudicators decision, compliance with consent orders

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

Unit reallocation - management and control – power to reallocate unit entitlements if original allocation considered unreasonable – respective value of lots

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

Appeal - Civil and Administrative Tribunal (NSW)

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

NSW CIVIL AND ADMINISTRATIVE TRIBUNAL - jurisdiction of Appeal Panel -decision to impose civil penalty

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

PROCEDURE - notices of motion - order seeking to restore Local Court as second defendant - no objection to order - notice of motion - application to dismiss summons - refused - security for costs sought refused

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

BUILDING AND CONSTRUCTION - adoption of referee's report - UCPR, r 20.24 - application of parties opposing adoption of referee's report on certain matters - whether third defendant developer a "developer" under Home Building Act 1989 (NSW), s 3A and thus liable to plaintiff owners corporation under s 18C for contractor's breach of s 18B implied warranties - whether claim brought under s 18C an apportionable claim - whether referee erred in selecting cheaper option for rectification of laundry wa

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

COSTS - damages claim against builder for rectification of defective works - proceedings settled prior to hearing - competing claims for costs - whether conduct of builder in failing to agree to owner's proposal for settlement was reasonable - whether settlement a compromise or capitulation by builder - whether costs orders should be made - turns on facts - no question of general principle

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

[PRACTICE AND PROCEDURE] - application to amend List Statement - whether there is utility in granting leave - whether the claim as amended is so untenable that it cannot be sustained

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

STRATA SCHEMES—penalty application; relevant issues on a strata penalty application

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

CORPORATIONS - commencement of proceedings by owners corporation without authority - effect of ratification by general meeting STATUTORY CONSTRUCTION - whether Strata Schemes Management Act 1996 (NSW), s 80D required obtaining approval for litigation

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

ADMINISTRATIVE LAW - judicial review - error of law - whether District Court erred as to scope of statutory obligations of owners' corporation to maintain and repair common property - appeal from

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

STRATA TITLE - owners corporation commenced proceedings without approval of general meeting - whether exemption applied - Strata Schemes Management Regulation 2010 (NSW) reg 15, construed - proceedings not approved by general meeting prior to hearing - effect of non-compliance with Strata Schemes Management Act 1996 (NSW), s 80D - proceedings dismissed PRACTICE - separate questions - answers to separate questions required dismissal of proceedings - motion filed to have regard to ratification aft

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

Jurisdiction

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

PROCEDURE - inferior courts - New South Wales - District Court - transfer of proceedings - equitable jurisdiction of District Court - whether claim for equitable compensation for breach of trust within s 134(1)(e) and thus excluded from s 134(1)(h) - held, it is REAL PROPERTY - strata title - management and control - duty of owners corporation to maintain common property - trustee obligations of owners corporation - whether claim for equitable compensation for failure to maintain common property

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

Consumer claim, cause of action, limitation period

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

COSTS - successful plaintiffs seeking costs against a submitting defendant - whether conduct of submitting defendant made it necessary for plaintiffs to seek relief and incur costs

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

REAL PROPERTY - strata schemes - whether orders of NSW Civil and Administrative Tribunal appointing strata managing agents displaced power of executive committee to appoint solicitor to act for Owners Corporation; PRACTICE AND PROCEDURE - setting aside of orders - whether serious question to be tried that orders obtained against good faith or in absence of party

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

Unreasonable unit entitlement allocation S183 Strata Schemes Management Act, 1996

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

CIVIL LAW - strata plan - dispute between owner of penthouse and owners corporation - construction of by-law under strata plan - whether by-law provided for exclusive use and enjoyment of elevator - whether elevator exclusively serviced a particular unit - whether tribunal erred in using extrinsic material to construe the by-law - whether tribunal erred in its use of technical specifications as to the programming of lift - relevance of the history of use of lift by occupants of building - whethe

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

Home building-“developer”-“immediate successor in title

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