Decisions table

BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — S 48O discretion — Defects

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

INTERIM ORDERS – whether interim orders are warranted in the circumstances. Act, ss 94 and 97

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

Determination of preliminary issue - Whether complaint item set out in complaint schedule filed in Tribunal has been referred to the Tribunal by the Building Commission

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

BY-LAW – whether a by-law restricting short-term letting of lots is valid. Act, ss 169, 180

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

ANIMAL BY-LAW – whether the body corporate failed to act reasonably when refusing permission for the applicant to have a dog at her lot Act, ss 94(2),100(5)

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

COMMON PROPERTY – where the applicant alleges there are alterations, obstructions and damage on an emergency evacuation route on common property – whether work is required to rectify the common property – whether orders are warranted. Act, ss 59, 67-70,94, 152, 171; Commercial Module, ss 30, 127, 133, 134, 140, 174, 177

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

BY-LAWS – where the respondent commenced construction of a patio roof on his lot without body corporate approval in contravention of the by-laws; whether he must obtain approval or remove the structure. Act, s 59(2)(b).

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

PROPERTY DAMAGE; MAINTENANCE – The applicant’s lot was damaged by water ingress from a leaking bath waste in the respondent’s lot. Whether the respondent must pay the cost of repairs. Act, ss 20; 281; Accommodation Module, s 201; Land Title Act 1994, s 48C.

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

RECORDS – where the applicant has sought but not been given various records – whether the applicant is entitled to the records. Act, s 205, Accommodation Module 220 - 222

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

• Michael David Horan lot owner
• The Owners – Strata Plan No. 68307 owners corp

The respondent was ordered to pay the appellant's costs of the appeal on an ordinary basis, as the appellant was successful in having the damages award increased from $9,325.19 to $46,616.26.

INSURANCE – The body corporate excluded the applicant’s lot from its building reinstatement insurance for many years. Should the body corporate take out a new policy of insurance that includes their lot, refrain from levying them for insurance contributions until it does, and credit their account for contributions paid while their lot was not covered? Accommodation Module, ss 187, 188, 191(1).

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

BY-LAW – INTERPRETATION – where an occupier parks in specified visitor parking spaces – where a by-law regulates parking – whether in fact the by-law prohibits parking in visitor parking spaces Act s 59

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

MAINTENANCE of COMMON PROPERTY; UTILITY INFRASTRUCTURE; PROPERTY DAMAGE Act, ss 20, 281; Standard Module, ss 180, 211(3)

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

GENERAL MEETING MOTION – where a motion proposed to record a new community management statement including an exclusive use by-law about car parking – where the motion failed to achieve a resolution without dissent - whether dissenting votes were unreasonable in the circumstances - whether the motion should be deemed passed Act, ss 170, 171, Schedule 5, Item 10

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

MAINTENANCE; GENERAL MEETING RESOLUTIONS – The applicant says rainwater enters his lot due to the contours of the surrounding common property and problems with the drainage infrastructure, some trees on common property are hazardous or may block drains with their roots, his patio balustrade is rusted through in places, and a light in the garage may be struck by the garage door when it opens. Several motions at a general meeting addressed these issues, but all failed. The applicant alleges a failure to maintain common property in good condition and asks that the motions are deemed to have passed. Act, ss 20, 280; Standard Module, ss 172, 173, 180, 186, 187.

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

MAINTENANCE – BODY CORPORATE DEBT – JURISDICTION – whether the respondent should reimburse the body corporate for a plumbing invoice where the applicant alleges the respondent engaged the plumber on behalf of the body corporate without authority, and further alleges maintenance of the hot water tempering valve was not the body corporate’s responsibility – whether the dispute is to be characterised as a debt dispute – whether the dispute is therefore within an adjudicator’s jurisdiction. Act, ss 37, 101B, 229A; Accommodation Module, ss 170, 202.

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

REASONABLENESS – whether the body corporate acted unreasonably by not providing retrospective approval for the installation of a fence on common property or the scheme boundary Act, ss 94(1) and (2), 100(5) and 152(1); Standard Module, s 180(1)

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

• Victor Keddis lot owner
• The Owners - Strata Plan No 20198 owners corp

Both proceedings were dismissed; the tribunal found that strata scheme 20198 is functioning satisfactorily, the owners corporation did not fail to perform its duties in material respects, and a compulsory strata manager should not be appointed.

BY-LAWS – where the respondent parked a vehicle in a visitor parking space, whether the respondent contravened the by-laws and the circumstances make it likely that the contravention will be repeated REASONABLENESS – where the body corporate relaxed the by-laws relating to visitor parking at a committee meeting and enabled occupiers to park in these spaces and where it denied the respondent’s request to park in these spaces, whether it acted unreasonably or made an unreasonable decision – whether the body corporate’s decision to enforce the by-laws against the respondent and not other occupiers who similarly contravened the by-laws is unreasonable Act, ss 183, 270(3) and 280; Accommodation Module, s 44(1)(b)

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

DAMAGES – costs of rectification works

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

COMMITTEE MOTION - whether the committee could prevent the use of power outlets on common property to charge electric vehicles – whether the decision was a restricted issue for the committee. Act, s 180; Standard Module, s 52(1)

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

INTERIM ORDER – whether interim orders are warranted. Act, s 279

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

GENERAL MEETING MOTIONS; MAINTENANCE Act, ss 94(2), 270, 279; Standard Module, ss 66, 86, 162,173, 180

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

INTERIM ORDERS – whether interim orders are warranted in the circumstances. Act, ss 270, 279; Accommodation Module, ss 74, 75, 83(1), and 95-97

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

INTERIM ORDER – whether an interim order is warranted Act, s279

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

INTERIM ORDER – where owner seeks retrospective approval for air-conditioner installed on common property – where body corporate is also considering motion to remove the air-conditioner - whether interim order is warranted to restrain the body corporate from removing the air-conditioner pending final orders. Act, s279(1)

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

IMPROVEMENT TO COMMON PROPERTY – where a fence has been installed on common property without approval – whether the installation should be allowed – whether a grant of exclusive use is required - whether the fence should be removed. Act, ss 170, 171; Accommodation Module, s 177

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

ARCHITECTURAL AND LANDSCAPE CODE – BY-LAWS – REASONABLENSS – where lot owners served body corporate with a notice that they believed another lot was contravening the community management statement by growing bamboo near the boundary fence, whether body corporate acted reasonably in the circumstances when it decided not to take action to enforce provisions of its CMS. Act, ss 94, 100(5), 182, 185; Standard Module, s 6(b)

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

• Samar Sultan lot owner
• The Owners Strata Plan no 54721 owners corp

The applications of both parties for costs of the appeal were dismissed; the appellant succeeded in having a costs order set aside but was unsuccessful in appealing the monetary order for outstanding levies, and the Appeal Panel made no order for costs of the appeal.

MAINTENANCE – whether the body corporate has failed to maintain elements associated with windows and doors in the applicant’s lot – RECORDS – whether the body corporate has failed to provide access to body corporate records. Act, ss 205, 270; Accommodation Module, ss 170, 201

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

MAINTENANCE; PROPERTY DAMAGE – The applicants’ lot and property were damaged by water ingress from their balconies, and the absence of waterproof membranes upon the balconies may have been to blame. The balconies may have been built without membranes as permitted at the time of their construction. Whether the body corporate failed to meet its obligation to maintain roofing membranes in good condition and must repair the applicants’ property. Act, s 24(2); Accommodation Module, ss 170(2)(a)(iii), 201(3).

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

• Brendan Campbell lot owner
• The Owners Strata Plan No 88807 owners corp

Application dismissed; the applicant failed to establish that the owners corporation breached its strict duty of maintenance and repair or that the alleged loss of rent was a reasonably foreseeable result of any breach.

INTERIM ORDER – whether interim order is warranted. Act, ss 279, 94(2), 100(5)

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

BY-LAWS – whether the respondent lot owner is breaching the parking by-law – whether the respondent’s partner is an occupier or invitee. Act, ss 94, 182-186

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

COMMITTEE MOTION – whether the committee made decisions about restricted issues when it made decisions concerning security access fobs. Accommodation Module, s 44

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

GENERAL MEETING MOTIONS – whether motions proposing restrictions to access to parts of common property required a motion without dissent because they had the effect of disposing of, leasing, or licensing parts of common property or granting exclusive or special rights to groups of lot owners – whether body corporate acted unreasonably in passing the motions. Act, ss 94, 152, 154, 170; Accommodation Module, s 106

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

GENERAL MEETING MOTIONS – where the body corporate approved improvement works undertaken by the owners of 2 lots – whether those motions required a resolution without dissent - whether the body corporate decided not to pass motions submitted by the applicant about gas infrastructure and the maintenance of palm trees - whether those motions should be deemed passed. Act, ss 94, 270; Accommodation Module, ss 174, 182, 184

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

ADMINISTRATOR – whether to order that an administrator be appointed. Act, s 301

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

Building and Property

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

INTERIM ORDER – whether the body corporate should be prevented from acting upon general meeting resolutions for works pending final orders because of alleged technical deficiencies or unreasonable decisions by the committee in setting the agenda. Act, s 100(5); Accommodation Module, ss 152, 163.

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

IMPROVEMENT TO LOT; REASONABLENESS – where the body corporate refused approval for an alteration to a load-bearing wall within a lot despite engineering advice that it could be done without adverse structural consequences; whether the body corporate acted unreasonably; whether body corporate approval should be deemed to have been given. Act, ss 59(2)(b), 94(2), 100(5), 169(2)(b)(i), 180(7), 270(1)(c); Accommodation Module, s 63(6).

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

MATERIAL CHANGE OF USE APPLICATION – where tenant made application to Cairns Regional Council to approve Material Change of Use under town planning scheme to legitimise their business which had been operating for several years – where majority of owners in body corporate consent to the MCU application PROMOTION FUND- where monies deposited in promotion fund for purpose of obtaining professional advice regarding termination or “separation” of Community Title Scheme – whether monies dealt with in accordance with Commercial Module MAINTENANCE – where scheme is registered under a building format plan- maintenance obligations of the body corporate. Act ss 238, 247, 276, Commercial Module ss 30, 32, 117, 119, 127

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

• The Owners-Strata Plan No. SP54026 owners corp
• Kastri Aev Pty Ltd lot owner

The appeal panel found the respondent lot owner was successful in the appeal proceedings, made no order as to costs of the appeal, and noted the effect of section 104 of the Strata Schemes Management Act 2015 (NSW) in favour of the respondent.

IMPROVEMENT TO COMMON PROPERTY – where an owner sought body corporate approval to install air-conditioning units on common property – where the motion was defeated – whether the body corporate acted reasonably – whether opposition to a motion proposing exclusive use of the area was unreasonable in the circumstances. Act, s 94(2); Standard Module, s187

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

APPLICATION FOR INTERIM ORDER – where the body corporate passed a motion to repair the roof at a cost exceeding the major spending limit, but only presented owners with a single quotation; whether the body corporate should be prevented from implementing the motion prior to final orders. Act, ss 279(1), 281; Accommodation Module, ss 163, 170(1).

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

REASONABLENESS – whether the body corporate is acting unreasonably and contrary to the community management statement by withholding approval for proposed development on the applicant’s lot, including the removal of surrounding vegetation. Act, ss 94, 100(5), 118.

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

INTERIM – whether an interim order is warranted Act, s 279

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

ADMINISTRATOR – whether an administrator should be appointed – whether any other orders are warranted in the circumstances. Act, ss 270, 287, 288, 301, 318; Small Schemes Module, ss 117, 120, 125

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

• Kristen Nimmons lot owner
• The Owners Strata Plan No 10441 owners corp

Appeal allowed in part: quarantine order made to levy all lot owners other than the applicant in proportion to unit entitlements for costs of rectification works; appeal otherwise dismissed and leave to appeal refused on other grounds.

• The Owners – Strata Plan No. 82089 owners corp
• Omaya Holding Pty Ltd developer
• Arinson Pty Ltd contractor
• Omaya Investments Pty Ltd party
• BSM Holdings Pty Ltd party
• Integrated Design Group Pty Ltd consultant
• Bernie Cohen & Associates Pty Ltd trading as Essential Certifiers consultant

Summary dismissal application dismissed; strike-out application upheld with leave to replead; application to withdraw admissions dismissed; amendment made to correct obvious error in list response.