Decisions table

• Maurice Clifford Westerweller lot owner
• The Owners – Strata Plan No 18482 owners corp

The appeal against the Primary Decision was dismissed due to failure to file within time and no extension of time granted; the appeal against the Costs Decision was dismissed as leave to appeal was refused.

• Charles Cuthbert contractor
• The Owners - Strata Plan No. 34194 owners corp

The appeal was dismissed and leave to appeal was refused; the Owners' entitlement to recover $23,866.50 from the Contractor for rectification and completion of defective painting works was upheld.

• Parkview Constructions Pty Ltd builder
• The Owners – Strata Plan No 90018 owners corp
• The Quay Haymarket Pty Ltd developer

The appeal by the builder and developer against the primary judge's decision to allow the owners corporation to amend its statement to include three new alleged defects was dismissed, with the court holding that claims for breach of statutory warranties constitute a single cause of action for breach of contract rather than separate causes of action for each defect.

• The Owners - Strata Plan No 97315 owners corp
• Icon Co (NSW) Pty Ltd builder

The Owners Corporation's Notice of Motion to reject or vary the referee's report was dismissed; the referee's finding that the C-Bracket Solution was the proper rectification methodology for defective sunshades was upheld.

• Michael Lehner lot owner
• The Owners – Strata Plan No 65870 owners corp

The appeal against a costs order was dismissed; the Tribunal properly exercised its discretion in awarding costs to the respondent where the appellant withdrew his application late in the hearing after a fatal flaw in his case was exposed.

• Hany Salib lot owner
• The Owners – Strata Plan No 20851 owners corp

The Tribunal found the owners corporation breached its duty to maintain common property but dismissed the applicant's claim for $53,770.00 in damages as the applicant failed to satisfy the Tribunal that he suffered any damage arising from the breach, and declined to make a work order due to insufficient evidence of a detailed scope of works.

• Robyn Szeto lot owner
• Kevin Brinsmead lot owner
• The Owners - Strata Plan No 1418 owners corp

The appeal was dismissed and the owners of lot 3 were ordered to pay the costs of the owners corporation on the ordinary basis, with the tribunal finding the owners failed to establish that loss of rent was reasonably foreseeable loss caused by the owners corporation's breach of statutory duty to maintain common property.

• Suzanne Lyon lot owner
• The Owners – Strata Plan No 11045 owners corp
• Ben Swanson lot owner

The Owners Corporation was ordered to take all necessary steps to require the owner of Lot 31 to comply with Special By-law 14 by reducing the pergola height to 2.7 metres within 6 months, and to clean the common property wall above the pergola within 2 months.

• The Owners – Strata Plan No. 54545 owners corp
• Nigel Hudson lot owner
• Patricia Stokes lot owner

The Appeal Panel refused leave to appeal and dismissed the appeal, upholding the Tribunal's decision that each party pay its own costs of the proceedings under section 60 of the NCAT Act.

• The Owners – Strata Plan No. 77109 owners corp
• Gokani-Robins Pty Ltd lot owner

The appeal by the Owners Corporation against the Tribunal's decision declaring Special By-Law 17 invalid as harsh, unconscionable or oppressive was dismissed.

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Frivolous or vexatious proceedings — where the plaintiff is a bankrupt — where the Trustee in bankruptcy had revoked his consent to the continuation of the proceedings against the first defendant — where the bankrupt objected to the dismissal of those proceedings — where the Court had previously ordered that the proceedings against each of the second and third defendants be dismissed — whether proceedings should be dismissed — proce

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

• Dimitri Haramis lot owner
• The Owners – Strata Plan No. 51923 owners corp

The Owners Corporation was ordered to carry out acoustic insulation work to common property pipework and party wall between Units 40 and 41 in accordance with the Soundblock quotation scope of work before 3 April 2023 to remedy breach of duty to maintain common property and prevent offensive noise transmission into the lot owner's bedroom.

• Hua Nan Trading Pty Ltd lot owner
• The Owners – Strata Plan No 32396 owners corp

The appeal was upheld and the Tribunal's decisions were set aside; the proceedings were remitted for redetermination as the Tribunal had power under s 41 of the NCAT Act to extend the time for bringing proceedings for damages under s 106(6) of the Strata Schemes Management Act 2015, and the application for access to records was overlooked.

• The Owners – Strata Plan No 74232 owners corp
• Feride Tezel lot owner

The Court of Appeal allowed the owners corporation's appeal, finding that the lot owner's claim for loss of rent was statute-barred under section 106(6) of the Strata Schemes Management Act 2015 (NSW) because the two-year limitation period commenced when she first became aware of the loss in 2016, not when the breach was remedied.

• The Owners – Strata Plan No. 16857 owners corp
• Peter Barnett Hyman lot owner
• Janiene Hyman lot owner

The Appeal Panel ordered the appellant to pay the respondents' costs of the appeal on the ordinary basis, with costs to be levied only from contributions of lots not owned by the respondents.

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Where specific performance of agreement granting easement and alternatively s 88K relief sought — Where after commencement easement lodged by consent — Where defendant servient owner was unresponsive to plaintiffs’ correspondence prior to commencement — Where no evidence of terms of consent to easement – Where no consent terms for dismissal or discontinuance of proceedings or costs

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

• The Owners – Strata Plan No 84674 owners corp
• Pafburn Pty Ltd builder
• Madarina Pty Ltd developer

The application to summarily dismiss the defendants' proportionate liability defence was dismissed; the Court held that section 5Q of the Civil Liability Act does not apply to non-delegable duties imposed by statute, and therefore the proportionate liability provisions are available to the defendants.

• Sunaust Properties Pty Ltd contractor
• The Owners Strata Plan no 64807 owners corp

The Respondent is to pay the Appellant's costs of the appeal and first instance proceedings on the ordinary basis, and the first instance costs order made on 28 March 2022 is set aside, but indemnity costs are declined and previous interlocutory costs orders are not vacated.

• Kevin Lenux lot owner
• The Owners – Strata Plan No. 88786 owners corp

The appeal was dismissed and leave to appeal refused; the Tribunal's orders for removal of structures installed by the lot owner on common property without proper authorisation were upheld.

COSTS – misguided appeal with no prospects of success – plaintiff failure to comply with orders regarding service of evidence – incomprehensible affidavits – appeal commenced against multiple named defendants who were not relevant to the appeal – court’s time wasted

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

CIVIL PROCEDURE — Originating process — Amendment — Disallowance of amendment — claim under the Home Building Act 1989 (NSW) s18B CIVIL PROCEDURE — Originating process — Amendment — Disallowance of amendment — claim under Design and Building Practitioners Act 2020 (NSW) — opportunity to replead

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

• The Owners – Strata Plan No 92183 owners corp
• Samdora Pty Ltd builder
• 3173 Pty Ltd developer
• MS Noun Construction Pty Ltd contractor
• Ghassan Nassif party
• Elie Chahwan party
• Omar Noun party

The court dismissed the second defendant's application for summary dismissal, finding that the settlement agreement did not incorporate the terms of the draft Deed of Settlement and the plaintiff's claims could proceed to trial.

REAL PROPERTY – STRATA MANAGEMENT – changes to common property – levies – Strata Schemes Management Act 2015 (NSW) ss 24, 106, 108, 232 COSTS – nature of relief requires special circumstances – no special circumstances - Civil and Administrative Tribunal Act 2013 (NSW) s 60, Civil and Administrative Tribunal Rules 2014 (NSW) r 38

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

CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Frivolous or vexatious proceedings – Whether proceedings constituted collateral attack on prior judicial decision

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

• The Owners – Strata Plan No 2341 owners corp
• P & M Sachs Pty Ltd party

The respondent's application for costs of the appeal was dismissed as the Appeal Panel found there were no special circumstances warranting an award of costs against the self-represented appellant.

• The Owners-Strata Plan No 93227 owners corp
• In Style Developments Pty Ltd developer
• Arden CH (NSW) Pty Ltd developer

The Tribunal made work orders against both respondents requiring them to perform rectification works identified in the Scott Schedule and Building Work Rectification Order by 30 July 2023, with the application otherwise dismissed and costs to be determined separately.

• The Owners – Strata Plan No. 61285 owners corp
• Cameron Taylor lot owner
• The Commissioner of Fair Trading, Department of Finance, Services and Innovation government

The Tribunal ordered the respondent to pay a civil penalty of $3,850.00 to the Commissioner of Fair Trading for contravening a Tribunal order, and to pay the applicant $2,430.80 in costs.

• The Owners – Strata Plan No 77109 owners corp
• Gokani-Robins Pty. Ltd. lot owner

The Appeal Panel made a costs order requiring the appellant to pay 20% of the respondent's costs of the stay application on the ordinary basis, finding special circumstances existed due to the appellant's late service of material but not warranting full indemnity costs.

• Lewis Elliot Franklin lot owner
• The Owners—Strata Plan No. 87497 owners corp

Paragraphs (1) and (2) of by-law 25 prohibiting cooking in lots were declared invalid as harsh, unconscionable and oppressive, being an unjustified blanket ban on cooking that limits fundamental property rights without protecting other occupants' use and enjoyment.

• The Owners - Strata Plan No 19341 owners corp
• Brian Charles Dehlsen lot owner

The Tribunal prescribed a common property rights by-law for the lot owner's 2005 renovations and ordered the respondent to waterproof the planter boxes within 3 months, but declined to find the work caused water penetration into lot 2.

• The Owners – Strata Plan No 89005 owners corp
• Thomas Stromer lot owner
• Simone Stromer lot owner
• Nathan Stromer lot owner
• Farad Electric Co Pty Ltd builder
• Mondan Management Pty Ltd (in liq) t/as Vic Lilli & Partners party
• Peter Smith Constructions Pty Limited consultant

Paragraphs 20 to 33 of the cross-claim were struck out as defectively pleaded, but the cross-claimant was given a further opportunity to amend the pleading to properly allege negligence by identifying specific actions a reasonable building supervisor would have taken to avoid the relevant risks of harm.

• The Owners – Strata Plan No 95230 owners corp
• Stacey Maister lot owner
• Terry Maister lot owner
• Debby-Lee Maister lot owner

The Appeal Panel stayed Order 7 (ongoing damages for alternative accommodation) pending appeal determination but dismissed the application to stay the work orders for mould remediation and retiling.

• Jessica Hetty Silberstein lot owner
• The Owners – Strata Plan No 55468 owners corp
• Michael Adamo party
• Peter Michael Hans Engelbert party
• William Paul O'Brien party
• Terrence Matthew Gagen party
• Strata choice Pty Ltd manager
• Hecker Australia Pty Ltd contractor

Paragraph 3 of the summons relating to documents concerning the respondents' knowledge of the applicant's husband's disability and health issues was set aside as lacking reasonable particularity and constituting a fishing expedition; Categories 1 and 2 relating to water ingress documents were not pressed by the applicant but the tribunal indicated the terms were too broad and problematic.

• Sunaust Properties Pty Ltd party
• The Owners – Strata Plan No 64807 owners corp

The Court dismissed the Owners Corporation's application to transfer proceedings from the Supreme Court to the NSW Civil and Administrative Tribunal, finding that the Court's jurisdiction should be retained due to uncertainty regarding the Tribunal's jurisdictional scope, the substantial quantum of the claim (over $750,000 in unpaid fees plus claims for loss of profits around $3 million), and the estimated hearing time of 8-10 days which exceeded the Tribunal's capacity.

• Peter Robert McDonnell lot owner
• Janette Carolyn McDonnell lot owner
• Peter McDonnell Pty Ltd lot owner
• The Owners – Strata Plan No 64191 owners corp

Application to extend time to bring appeal is refused, summons dismissed, and plaintiffs ordered to pay defendant's costs.

APPEAL – Interlocutory application

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

• Ross Harold Smith lot owner
• Jennifer Ann Smith lot owner
• The Owners – Strata Plan No. 3004 owners corp

The Smiths' appeal was dismissed; the Magistrate's decision to limit loss of rent damages to three months was upheld as the Smiths failed to mitigate their loss by choosing not to rent the unit while repairs were undertaken, despite there being no safety concerns.

• Leigh Allsopp lot owner
• The Owners - Strata Plan No 6006 owners corp

Leave to appeal was refused and the appeal was dismissed, with the appellate tribunal finding no error of law or appellable error of fact in the first instance tribunal's decision to dismiss the application for compulsory appointment of a strata managing agent.

ENCROACHMENT – ss 2, 3 and 4 of Encroachment of Buildings Act 1922 (NSW) – characterisation of encroaching owner and adjacent owner – Applicant encroaching owner – relief not available – discretion not exercised – application dismissed

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

• Coscuez International Pty Ltd lot owner
• The Owners – Strata Plan No 46433 owners corp

The Tribunal made a common property rights by-law proposed by the lot owner, declared three special by-laws invalid as harsh, unconscionable or oppressive, and dismissed the owners corporation's application for removal of the swinging door.

• The Owners – Strata Plan No 16857 owners corp
• Peter Barnett Hyman lot owner
• Janiene Hyman lot owner

Leave to appeal was refused and the Tribunal's interlocutory decision requiring production of an acoustic expert report was upheld, as the report was prepared for the dominant purpose of filing in the Tribunal rather than for provision of professional legal services and thus not subject to legal professional privilege.

• Hua Nan Trading Pty Ltd lot owner
• The Owners – Strata Plan No 32396 owners corp

The application was dismissed because it was filed outside the two-year statutory limitation period under section 106(6) of the Strata Schemes Management Act 2015, and the Tribunal does not have jurisdiction to extend this time limit under section 41 of the NCAT Act.

• Georgette Benson lot owner
• The Owners, Strata Plan No 17676 owners corp

The appeal was dismissed; the Tribunal's decision requiring Ms Benson to permit access to her lot for replacement of brushwood fencing as authorised common property work was upheld, and her cross-claim for a by-law was rejected.

• Maurice Clifford Westerweller lot owner
• The Owners - Strata Plan No. 18482 owners corp

The application for appointment of a compulsory strata managing agent was dismissed as the consent orders regarding roof repairs had been complied with and no grounds for appointing a compulsory manager under section 237 of the Strata Schemes Management Act 2015 were established.

• Nicholas Miroforidis and Alexandra Miroforidis lot owner
• The Owners - Strata Plan No 75809 owners corp

The Tribunal ordered the owners corporation to pay the lot owner $24,860 in damages for breach of its duty to keep and maintain common property in a state of good repair, comprising $5,940 for repairs and $18,920 for loss of rental income.

CORPORATIONS — Voluntary winding up — Practice and procedure — Leave to continue proceedings in circumstances where final hearing is one week away

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

• The Owners – Strata Plan No 90189 owners corp
• Parkview Constructions Pty Ltd builder

The defendant's motion for an advance ruling under section 192A of the Evidence Act seeking to exclude expert reports was dismissed, and the plaintiff was awarded indemnity costs from the date of the Calderbank letter because the defendant's rejection of the walk away offer was unreasonable given the motion's lack of merit and the plaintiff's prior warnings.

PRACTICE AND PROCEDURE – adjournment – application by plaintiff on morning of hearing – no basis – evidence provided inadequate – no utility in granting adjournment – application for adjournment refused

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

• Darren De-La-Garde lot owner
• The Owners – Strata Plan No 3260 owners corp

The parties settled all substantive issues by consent; the Tribunal ordered the respondent to pay 60% of the applicant's costs on the ordinary basis, rejecting the applicant's claim for indemnity costs.

• Michael Young lot owner
• The Owners – Strata Plan No 57860 owners corp

The applicant was awarded costs of $5188.54 against the owners corporation due to special circumstances, specifically the owners corporation's unreasonable prolongation of proceedings by failing to comply with a tribunal order to repair water ingress and instead delegating its statutory repair obligation to an insurer.