Decisions table

Res judicata

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

Exclusive use By-law

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

Reallocation of unit entitlements Ascertaining the respective values of the lots Whether allocation of unit entitlements was unreasonable Section 183 Strata Schemes Management Act (1996) NSW

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

Appeal – home warranty insurance – original defective work uninsured – rectification work by builder at no cost to owner also defective - whether insurance subsequently obtained covered or excluded loss – construction of insurance policy – jurisdiction of Tribunal to deal with alleged insurance settlement.

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.

PRACTICE AND PROCEDURE – dispute between owners corporation and builder – where defendant builder seeks to commence separate proceedings against the developer to rectify the contract pursuant to which the building was constructed – related application to amend list response in present proceedings to incorporate that defence – where it has been open to the defendant to agitate the question of rectification for three years – where substantial effort and expense has gone into the preparation of the

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

Strata managing agent

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

STRATA TITLE – application by lot owner to bring derivative action at general law on behalf of owners corporation – exceptions to rule in Foss v Harbottle – whether owners corporation acted ultra vires in making payment of legal fees from sinking fund – whether in the interests of justice that the plaintiff bring a derivative action – whether payment by lot owner to owners corporation appropriated to debt in respect of sinking fund levies – principles of appropriations of debts.

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

Repeal of a by-law conferring exclusive rights or privileges over common property

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

Community Management Statement; By-law; Whether by-law invalid; whether by-law not in the interests of the Community Association or lot owners

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

Consumer Claim – Negligence alleged – no duty of care

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

Orders to pursue an insurance claim; losses of a lot owner; disciplinary action against a strata manager rebuttal of special levies; amendment of owners ledger; supply of information about loan to owners corporation by strata manager; compensation to lot owner; pursuit of insurance claim; rescission of levies; inspection of records; right to bring application when lot owner in arrears of contributions levied and payable

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

BANKRUPTCY – provable debts – contract between builder and developer contains warranties implied by Home Building Act 1989 (NSW) – builder becomes bankrupt – claimant owners corporation a successor in title to developer – claim by owners corporation against builder for damages for loss suffered by reason of breach of statutory warranties – whether a debt or liability provable in the bankruptcy – whether a debt or liability released upon discharge from bankruptcy – whether claim a demand arising

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

Meaning of “developer” for Home Building Act 1989 – extension of statutory warranties – immediate successor in title – vesting of common property on registration of strata plan – successor in title to person entitled to benefit of statutory warranty

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

PRACTICE AND PROCEDURE – longstanding dispute regarding block of flats – proceedings on foot in Local Court and Supreme Court – whether Local Court proceedings should be stayed until Supreme Court proceedings are resolved – defendant not opposed to stay COSTS – ex parte application – no notice given to defendant – application unnecessary because of consent of defendant to orders sought – whether the plaintiff should pay the costs of the hearing

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

EVIDENCE – admissibility – discretion to exclude or limit the use of evidence – whether lay observational evidence adduced by plaintiff after cut-off date of “guillotine order” is evidence-in-chief or in reply – if in chief, whether leave should be given to adduce that evidence – whether defendants would be prejudiced if that evidence is admitted – whether use of evidence should be limited to exclude evidence of April 2015 storm event

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

CONTRACT – offer to settle litigation – time – where defendant made a ‘walk away’ offer, open for 28 days – where that offer accepted on 28th day – whether relevant that time of acceptance was later than time of offer – common law position on taking fractions of days into account CONTRACT – offer to settle litigation – counter-offers – where,

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

EXCLUSIVE USE - unreasonably refused

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

CONTRACT – deeds – application to set aside deed of settlement as void – insufficient evidence to ground avoidance on doctrines of common mistake, mutual mistake or unilateral mistake

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

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.

BUILDING AND CONSTRUCTION – right of support – application for mandatory injunction requiring defendants to reinstate support to the plaintiff’s land and building – parties agreed that defendants breached their duty of care in relation to the plaintiff’s right of support under s 177 of the Conveyancing Act 1919 (NSW) and that some form of mandatory injunction is appropriate – where the “grout injection” method proposed by the defendants would be quicker and simpler, but riskier, than the underpi

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.

COSTS – judicial review proceedings - costs sought by a respondent who submitted to the orders save as to costs – motion filed after costs order issued – respondent did not pursue the motion - applicant applied for the respondent to bear the costs of the motion –motion and application dismissed – warning about legal representatives’ duties under s 56 of the Civil Procedure Act 2005 (NSW) when applying to the Court

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.