Decisions table

REAL PROPERTY – BOUNDARY WALL – TRESPASS – NUISANCE – Whether encroaching boundary wall owned by one or both adjoining owners – whether defendant committed trespass to plaintiff’s property by demolishing wall – whether nuisance created – whether mandatory injunction for restoration of wall should be granted – quantum of damages.

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.

INSURANCE – Home Building Act 1989 – statutory insurance – policy provided indemnity for loss where notification is made within six months of indemnified party becoming aware of such loss, but not after the expiry of the seven year period – whether policy complied with Act - successors in title entitled to benefits of statutory warranties. - DAMAGES – residential building contract – loss arising from construction not in accordance with contract, plans and specifications – rectification – remedia

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

Separate question orders

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

Costs :- whether presumtion of no order as to costs displaced - whether fair and reaonsable for the Council to pay the applicants' costs - appeals against orders served by the Council - orders agreed to be invalid - Council ordered to pay the applicants' costs

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

RESTORE MATTER - Whether matter should be restored to the list

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

Practice and Procedure :- application for determination of a separate question - whether appropriate to separate question of construction where answer may depend on issues of fact and degree - application refused

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

Practice and Procedure :- whether new evidence can be relied on

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

negligence - slip and fall on wet stairs - reasonableness of response to perceived danger - differing expert reports as to slip resistance - relevance of unsubstantiated complaints by residents not called to give evidence - duty of care of ocupiers - large home unit complex

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

EQUITY [338]- Application for interlocutory injunction- Building within strata scheme subject to strata management statement- Defendant proposing to erect doorway contrary to architectural code in strata management statement- Defendant has obtained local government consent- Plaintiff has shown an arguable case- Plaintiff has delayed bringing the application- Absence of prejudice to plaintiff- No loss will be caused to plaintiff if work is performed- Defendant bears risk that court will order dem

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

Tort - Negligence - Breach of statutory duty - Common law duty of care - Statutory authority - Essential fire services - Effective height - Development application - Sprinklers - Occupation certificates - Factor of control - Wednesbury unreasonableness - Control of a structure - Self-imposed duty to take positive action - Standing of Owners Corporation to bring proceedings

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

COSTS - motion to vary costs order following correction of arithmetical error in

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

Costs :- interlinked proceedings - whether any costs order in class 2 proceedings fair and reasonable in the circumstances - respondents unsuccessful on certain issues in class 4 proceedings - whether any apportionment of costs appropriate - applicant ordered to pay respondents' costs of both proceedings

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

COSTS – Security for costs – corporate impecuniosity – where plaintiff is a corporate trustee – absence of evidence that plaintiff will have recourse to trust assets – where there is another plaintiff against whom security would not be ordered – where no real practical probability that costs order might be made against corporate plaintiff alone - where joinder of corporate plaintiff does not significantly expand case.

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

CORPORATIONS – external administration – winding up – creditor’s voluntary winding up – leave to proceed against company in liquidation – whether application appropriately brought by motion in proceedings in which no relief will be sought against company – where proceedings if continued will jeopardise only asset of company – where liquidator neither consents nor opposes leave to proceed.

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

APPEAL - CTTT - res judicata

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

STRATA SCHEMES - statutory debt - expenses - legal costs and disbursements

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

CTTT APPEAL – error of law – expert evidence – Makita principles – whether failure to disclose adequately reasoning by expert – building valuation report – valuation of strata title units – failure to have evidence of actual value of units - ADMINISTRATIVE LAW – standing – whether party a "person".

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

Injunctions and Declarations :- whether strata development contract valid when registered - additional land - development lot - developer not owner of development lot when contract registered - adequacy of concept plans; whether strata development contract enforceable - estoppel, election and waiver; whether time for conclusion of development scheme should be extended; whether strata development contract should be amended - applications dismissed

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

Equity - Rights of subrogation - Insurance Contracts Act - Insurance requirements of Home Building Act 1989 - Insurer having provided insurance under the Home Building Act 1989 - Questions as to what were the limits, if any, to the rights of subrogation of such insurer - Whether insurer was subrogated only to the rights of the builder (who had effected the insurance and paid premiums) whose liabilities had been discharged, so that the insurer could only sue in the name of the builder - Whether t

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

[HOME BUILDING ACT] - Whether definition of "residential building work" in Home Building Act 1989 applicable to Insurance Policy provided by defendant under that Act - [SEPARATE QUESTIONS] - As to identity of person who did "residential building work" and gave warranties under the Act - As to whether the Policy responds to plaintiffs' claims.

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

Power of Roads Authority to grant a short-term lease - of unused public roads - notice - compliance - conditions to exercise of power

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

STRATA TITLES – Common property – Whether waterproof membrane under tiles on uncovered terrace is common property or property of lot owner – Whether lower boundary of cubic space of lot is upper surface of concrete slab or upper surface of tiles on top of slab – Where lower boundary not specified by registered strata plan – Where tiles laid prior to registration of strata plan – Strata Schemes (Freehold Development) Act 1973 ss 5(1), 5(2), 8(1) – DAMAGES – Breach of statutory duty – Loss of rent

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

Statutory construction - levying of contributions - order made under s183 - when it takes effect and when unit entitlement is amended - recording in Register

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

STRATA TITLES – Strata Management Scheme governing adjoining Strata Plans – Construction of Strata Management Scheme – Strata Management Scheme gave owners and occupiers of units in Serviced Apartment Strata Plan exclusive right with owners and occupiers of units in adjoining Residential Strata Plan to use recreation area in Residential Strata Plan’s common property – Owners corporation of Residential Strata Plan closed normal access route to recreation area – Alternative access routes to recrea

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

STRATA SCHEMES – by-laws – proper construction of by-law giving exclusive use of common property (a lift) to a proprietor – terms and conditions attaching to exclusive use – costs attributable to the repair, maintenance, renewal and replacement of the lift – relationship between obligations imposed by by-law and obligation to meet levies for the upkeep of common property generally - STRATA SCHEMES – by-laws – principles of interpretation – to be construed consistently with statutory context – "s

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

Practice and procedure - Security for costs - Delay - Overlapping of two sets of proceedings

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

PROPERTY - Strata plans - Strata Management Statement provided that "owners" of commercial lots in strata building must not use lots as fast food outlets - Lot used by lessee as fast food outlet - Proper construction of Statement - Whether owner permitted lessee to use lot in breach of Statement - Whether owner should be ordered to require lessee to stop using lot as a fast food outlet - LANDLORD AND TENANT - Construction of lease - Whether lessee's use of lot as a fast food outlet in breach of

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

PROCEDURE - INSURANCE - Construction and effect of s.6 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) - Circumstances in which a plaintiff can proceed directly against insurer of party alleged to be liable to pay damages to the plaintiff - Claims-made policy - Whether s.6 procedure available when event giving rise to the liability to the plaintiff occurs

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

Contempt :- order restraining use of spray booth on premises in strata plan without consent of Council - order requiring remediation of common property in strata plan - finding of wilful contempt - whether Pt 42 and/or Pt 55 of Supreme Court Rules apply

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

STRATA TITLES - management and control - owners corporation -functions - delegation of functions - whether sufficient handing over of decision-making and control to amount to delegation - whether caretaker agreement - not delegation of decision-making and control functions - agreement not void and unenforceable - Strata Schemes Management Act 1996 ss 13(3), 26

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

Appeal pursuant to s67 - narrow ambit of appeal - not synonymous with error in point of law or question of law - allegation of no evidence to support findings - time limitations - discretion to extend time - threshold requirement.

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

Dispute between owners corporation and unit owners - unpaid contributions and interest - claim for balance of legal costs of earlier proceedings as "expenses" under s80 - no basis shown justifying disturbance of

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

Case management - failure of defendant to comply with directions

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

APPEAL – power of Consumer, Trader and Tenancy Tribunal to make an order for costs under s 192 of the Strata Schemes Management Act 1996 (NSW) – whether Tribunal required, under s 192, to make a costs order at the time of dismissal of the appeal – whether Tribunal, in order to award costs, is required to state expressly that it is dismissing an appeal under s 181(5) of the Act because the appeal is “frivolous, vexatious, misconceived or lacking in substance” – whether s 192 restricts the matters

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

JUDGMENTS & ORDERS – enforcement – where leave reserved to plaintiff to apply for substitution of monetary

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

TRIBUNALS - Consumer, Trader and Tenancy Tribunal is court for purposes of Suitors Fund Act 1951 (NSW) - Tribunal has power to award costs - costs generally

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

PROCEDURE – Stay – stay pending appeal

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

TORTS [171]- Nuisance- Rocks falling from defendant's land onto common land of body corporate- Not caused by defendant- Continued nuisance- Mandatory quia timet injunction- Duty to take reasonable care to abate nuisance- Scope of duty based on facts and circumstances- Defendant has limited finances- Rocks also falling from plaintiff's property- Plaintiff has not mitigated damages- Substantial cost to defendant of abating nuisance- Uncertain effectiveness- Defendant not to take all necessary step

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

CIVIL LAW - Strata Schemes Management Act - Jurisdiction of Consumer Trader & Tenancy Tribunal - planning and development - Council grant of development approval void ab initio for want of owners’ consent - exclusive use by-law from owners’ corporation to be gained

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

Costs :- whether respondents satisfied applicants' claim or whether matter resolved by suupervening event - no order as to costs

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

Easements :- imposition of drainage easement by court under s 40 Land and Environment Court Act 1979 – where alternative routes for easement – whether easement reasonably necessary for development to have effect in accordance with development consent which court has determined to grant – whether owner of burdened land can be adequately compensated for any loss or other disadvantage that would arise from imposition of the easement – whether all reasonable attempts made by applicant to obtain the

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

REAL PROPERTY – Strata and related titles and occupancy – owners corporation’s duty to maintain common property – whether steel uprights enclosing balcony common property – whether waterproofing membrane common property - whether private cause of action available – whether duty strict – whether contributory negligence available as defence – whether proceedings ought to have been brought in Consumer Trading & Tenancy Tribunal – Remedies – Damages - measure of damages – damages for diminution of v

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

CORPORATIONS – Winding up – Application for termination of winding up – s 482 Corporations Act 2001 (Cth) considered – Whether liabilities of defendant company substantially exceed assets – Application granted - CORPORATIONS – Winding up – Effect of winding up – Powers of company officers during winding up – Application for order nunc pro tunc approving purported exercises of power by first and second applicants – s 471A Corporations Act considered – Where liquidator approved purported exercises

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

Costs - assessment by costs assessor - review by costs review panel - requirement to give reasons for determination - statements that amounts of profit costs were fair and reasonable - whether adequate reasons - dispute whether cross-claim costs within order - whether proper view taken of order - whether adequate reasons for inclusion of cross-claim costs in assessment - consideration of requirement of reasons - must be sufficient to enable meaningful exercise of right of appeal.

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

Strata title - liability of owners corporation - statutory duty - damages for economic loss

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

TORTS – NEGLIGENCE – Dangerous Premises – Occupier’s Liability – Home unit body corporate – common areas – tiled landing at front entrance – whether failure to remove carpet off-cuts on which plaintiff tripped negligent – held, in the circumstances it was not – whether failure to provide external slip-resistant doormat on tiled landing on which plaintiff slipped negligent – held, in the circumstances it was – contributory negligence – assessment of damages.

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

CORPORATIONS - winding up - creditor's statutory demand - set aside by consent - contest on costs - PROCEDURE - costs - where no determination on the merits - whether supporting affidavit sufficiently delineated case - where plaintiff initiated proceedings without intervention of solicitor but was represented by counsel at hearing - whether defendant entitled to costs

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

Evidence - s 69(3) Evidence Act 1995 - Inferences as to cause of a fire - Act or omission of owner of a strata lot - Defence under s 92 of the Strata Schemes Management Act 1996

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

Appeal from adjudicator, Strata Scheme Management Act

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