Decisions table

COSTS – appeal – application for leave to appeal

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

INTEREST – assessment of interest up to

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

TORT – negligence – resident of strata title premises trips on mat placed on top of elevator floor carpet to protect it while another occupant moves into the building – duty of care – breach of duty – defendant’s code of conduct for safe removals not complied with – obvious risk – contributory negligence – assessment of damages for non-economic loss and home care for 88-year old plaintiff

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

STRATA SCHEME – appeal from order of Adjudicator dismissing application for appointment of a strata managing agent – failure to comply with fire safety order – whether Owners Corporation in breach of duty – whether Owners Corporation functioning satisfactorily – appeal dismissed

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

REFEREES - nature of proceedings on challenge to Referee’s Report DAMAGES - where plaintiff relied upon expert’s advice in respect of the scope of works to rectify defects - where defendants had warned plaintiff that scope of works was exploratory, speculative and not urgent - where findings made that the work carried out was not urgent - where works found to be unnecessary and excessive - where Referee found that defendants not liable for such work - whether those aspects of Referee’s Report sh

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

PRACTICE AND PROCEDURE – civil law – summons for summary dismissal of appeal – appeal from member of Civil and Administrative Tribunal – whether the appeal is competent – whether Division decision was internal or external appeal decision – Civil and Administrative Tribunal Act 2013 (NSW), s 83

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

COSTS: Conduct of appellant and its solicitor leading to adverse costs order; solicitor accepts she ought indemnify the appellant.

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

REAL PROPERTY – Strata title – Management and control – Whether meeting of Executive Committee invalid because of failure to give notice in compliance with Strata Schemes Management Act 1996 (NSW), Sch 3, cl 6 – Whether Executive Committee lacked authority to instruct counsel to enter into settlement agreement due to subject matter of agreement CONTRACTS – Principal and agent – Authority of agents – Whether counsel for Owners Corporation lacked authority to make settlement agreement on behalf of

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

COSTS: complex proceedings – no single clear “event” – principles to apply – apportionment – interest claimed – protections under the Strata Titles legislation.

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

APPEAL – standing to appeal – consent orders – no order relating to appellant – whether appeal should be accepted out of time

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

EQUITY – Adoption of referee report – Proposed modification – Whether referee erred in failing to take into account outstanding levies in determining reasonable Owners Corporation budget – Failure to draw referee’s attention to outstanding levies – Costs of proceedings

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

COSTS – where separate questions ordered – where number of questions reduced to a single question at hearing – whether successful parties should have their costs – whether successful parties’ costs should be reduced by reason of the reduction in the number of questions to be determined SEPARATE QUESTIONS – expectation that the Court will be cautious – need for precise formulation of questions and agreed facts – prospect that the Court may decline to answer questions if inappropriate to do so

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

COSTS – where proceedings commenced in CTTT and transferred to this Court and plaintiff obtains

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

PRACTICE – reference out by court of entire proceedings to referee – whether report should be adopted – earlier finding that referee correctly construed contract – consideration of remaining objections to adoption of report

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

COST ORDERS – third defendant sought indemnity from the first defendant owners corporation for her costs of the proceedings – first defendant was not initially capable of opposing plaintiffs’ application for leave to take proceedings in the name of the first defendant – court of its own motion joined the third defendant as a party to plaintiffs’ application – exceptional circumstances – principles of justice and fairness considered – court had already ordered the first defendant to indemnify the

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

APPEAL: power of Tribunal to set aside or vary orders dismissing proceedings. APPEAL: whether discretion to set aside or vary orders should be exercised.

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

[DEEDS] - where construction contract between two parties - where performance of one party to construction contract guaranteed by third party - where the three parties execute a Deed of variation and release at same time as settling proceedings between two of those parties to which the guarantor was not a party - construction of the Deed - meaning of the expression “the parties” - separate question as to whether guarantor released from obligation to guarantee certain obligations of the party not

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

CONTRACT – damages - Caretaker Agreement made under 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 three 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 u

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

COSTS – no special circumstances

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

Costs- appropriate order in respect of proceedings at first instance

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

Evidence – failure to consider, error of law Construction of Deed – relevance of surrounding circumstances Home Building Act 1989 – s 18D, prior enforcement Betterment – circumstances when allowance should be made, onus of proof Section 48MA – application to proceedings commenced prior to commencement of Home Building Amendment Act 2014

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

PRACTICE - reference by court - finding by referee as to the proper construction of operative agreement - whether referee erred in law; CONTRACTS - proper construction – settlement deed – contract to do residential building work – nature of builder’s obligation to effect rectification works - whether certifier empowered to alter manner in which rectification works be effected and designated standard be achieved

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

JUDGMENTS AND ORDERS – matters arising from earlier judgments; COSTS – where plaintiff only successful in relation to one issue – whether Sanderson order should be made concerning costs of the fourth defendant

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

BUILDING AND CONSTRUCTION – breaches of statutory warranties in s 18B of Home Building Act 1989 (NSW) – adoption of referee’s report under Uniform Civil Procedure Rules 2005 (NSW), r 20.24 – where contract required building work comply with provisions of Building Code of Australia – where Code complied with by work in accordance with deemed-to-satisfy provision or alternative solution – where experts agreed that alternative solutions capable of achieving compliance with Code – where referee allo

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

PROCEDURE – notice of motion – leave sought to continue cross-claim and amend pleadings – leave granted

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

JUDGMENTS AND ORDERS - matters arising from earlier

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

PRACTICE AND PROCEDURE – security for costs – discretion to order security for costs enlivened – no relevant delay - security for costs order made – quantum - UCPR r 42.21 – s 1335(1) Corporations Act 2001 (Cth)

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

INJUNCTIONS – Continuation of asset preservation order first made ex parte – No issue of principle

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

BUILDING AND CONSTRUCTION – Home Building Act 1989 – statutory warranties – withdrawal by defendant’s solicitor – no appearance by defendant – contract in existence between builder and developer – defects in residential building work result of builder’s work – breach of statutory warranties –

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

BUILDING AND CONSTRUCTION – Home Building Act 1989 – statutory warranties – two preliminary issues – whether there was a contract between defendant and the Developer – contract found to be operational - whether plaintiff’s claim statute barred – court held plaintiff’s claim not commenced within time – unnecessary to deal with further issues

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

DAMAGES – contract – building – breach of statutory warranties in Home Building Act 1989 (NSW) – where

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

APPEAL - residential strata title development – claim for breaches of warranties under Home Building Act – grounds covering adequacy of reasons, procedural fairness and sufficiency of evidence – appeal dismissed APPLICATION FOR LEAVE TO APPEAL – similar grounds – application dismissed

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

BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) ss 18B, 18E(1)(a) – claim for damages for breach of statutory warranty by builder in respect of work not performed in a proper and workmanlike manner – where particulars of defective work were pleaded by reference to an expert report and then amended to refer to another report whether the change constitutes commencing proceedings for the purpose of s 18E(1)(a) – mitigation of damages – whether plaintiff failed to mitigate damages by not gi

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

Error of law - failure to provide adequate reasons Fresh evidence - evidence not reasonably available Owners Corporation - standing to bring application under the Home Building Act as successor in title Causation

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

COSTS –– plaintiff successful in notice of motion – undue prejudice suffered by defendants –– plaintiff ordered to pay second to fifth defendants’ costs of motion – first defendant did not appear, ordered to pay plaintiff’s costs of motion

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

PRACTICE AND PROCEDURE – Claim for defective work – Notice of Motion application to rely on Amended List Statement – Whether leave should be granted to plaintiff rely on Amended List Statement and further allegations of defective work – Whether leave should be granted to rely upon further export reports – Balance of justice weighted in favour of plaintiff – Leave granted

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

STRATA AND COMMUNITY SCHEMES—costs—Consumer and Commercial Division—applicable legislation—costs not awarded

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

Strata Scheme Management Act- power to award costs following withdrawal of application, form of order to effect withdrawal. Meaning of “misconceived”, requirements for making an order dismissing proceedings that are misconceived. Consumer Trader and Tenancy Tribunal Act- power to make orders under s 28

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

STRATA TITLES – mixed residential, commercial, retail and car parking development – allocation of the costs of shared services – proper construction of strata management statement – whether allocation of costs of shared services under strata management statement fair and reasonable – whether strata management statement an unjust contract for the purposes of the Contracts Review Act 1980 – whether strata management statement should be re-written – whether any amendment to strata management statem

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

PROCEDURE – costs – whether to order owners corporation to indemnify plaintiffs for their costs – plaintiffs members of executive committee – NCAT orders vesting all functions of owners corporation in strata manager – apparent inability of owners corporation to appeal – rule in Foss v Harbottle applies to owners corporations – whether interests of justice exception to the proper plaintiff rule satisfied – owners corporation ordered to indemnify plaintiffs but not for costs incurred in pursuit of

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

BUILDING AND CONSTRUCTION – design and construct contract between developer and first defendant – plaintiff successor in title to developer – whether first defendant breached statutory warranties under s 18B(a), (b) and (f) of the Home Building Act 1989, as incorporated into the contract – whether facade was designed and constructed in accordance with the “Hyder Specification” as incorporated in the contract – proper construction of the Hyder Specification – whether a reasonable businessperson w

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

Penalties for breaching interim order of an Adjuicator

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

REAL PROPERTY – strata title – management and control – where lot owner and Owners Corporation negotiated to settle existing proceedings between them – where ‘agreement in principle’ was reached in correspondence – where agreement was subject to formal resolutions being passed at general meeting – whether a binding agreement existed.

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

Home building – costs – appeal - no evidence to support Tribunal finding that builder admitted liability – consideration of who was successful party in proceedings – importance of Tribunal’s refusal to make a work order - whether issues severable for the purposes of a costs order – whether conduct of party disentitling for the purposes of costs – Tribunal erred in the exercise of its costs discretion by taking into account two matters for which there was no evidence – appeal allowed

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.

Failure to comply with By-laws, implied duty to cooperate, estoppel, waiver.

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

Prescription of special By-law – persons entitled to vote at general meetings.

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

REAL PROPERTY – Strata scheme – Agreement for managing common property – CONTRACT – Where one of the Defendants provided cleaning and other services to the Plaintiff – Entitled to reimbursement of all reasonable and proper fees and expenses incurred in carrying out its duties under the contract – No dispute that it carried out duties – Breach alleged related to submission of claims in writing in order to be reimbursed its costs and expenses – Whether Manager of common property of strata scheme c

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

PROCEDURE – application for leave to reopen – applicable principles – factors relevant to exercise of discretion – lengthy hearing –

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

COSTS – application for indemnity costs – Calderbank letter – whether proposal contained a real and genuine element of compromise – late amendment to pleading – whether late amendment caused defendant any disadvantage – cost consequences of unjustifiable failure to bring proceedings under Strata Schemes Management Act 1996 (NSW)

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