Decisions table

VALIDITY OF BY-LAWS- By-laws made under Strata Schemes Management Act 1996 authorising "Facilities Agreement" with Rec Club 15 minutes from resort- whether such by-laws were outside the powers of the Owners' Corporation- the power to make by-laws is to be construed liberally- limitations on the making of by-laws to be construed from the enabling statute- there must be a clear nexus between the subject matter of a by-law and the use or occupation of the property in question- there is no precise r

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

CONTEMPT:- failure to comply with Court orders to undertake works for fire safety measures within three months of the orders - guilty plea - whether contempt wilful - whether the Court has the power to impose a fine - whether a fine is warranted - no fine warranted

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

PROPERTY LAW - Authority of Owners Corporation to take legal action to recover outstanding levies - failure to pay levies contra to Strata Schemes Management Act - defence struck out at Local Court - denied permission to amend or re-plead defence - whether applicant denied procedural fairness - whether commencement of legal action by Owners Corporation valid - whether Magistrate justified in determining proceedings relating to the commencement of legal action where "no evidence" is

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

COSTS:- Class 4 proceedings to enforce Council cease use order discontinued - Respondent probably complied with order after proceedings commenced - no prior notice given to Respondent

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

INTERIM RELIEF - injunction - where the defendant has undertaken significant building works to a unit in a strata plan without the consent of the Owners Corporation - where the Owners Corporation has issued a notice of breach of by-laws - where the defendant has sold the unit to a third party purchaser - where the transfer has been lodged at the Land Titles Office but not yet registered - whether the Owners Corporation is entitled to an interim injunction to preclude the defendant from taking fu

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

DEVELOPMENT APPLICATION:- appeal following refusal of development consent - residential flat building - existing use - compatibility with existing and likely future character - Gosford Planning Scheme Ordinance - Gosford Development Control Plan No. 159 (Character) Amendment One - different but not incompatible character - bulk and scale - compatible with surrounding development - appeal upheld COSTS:- appeal following refusal of development consent - permissibility founded upon existing use - e

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’s use of lot causes damages to another lot owner and to walls of other lot being common property – inquiry as to damages – whether first lot owner liable to compensate other lot owner and/or owners corporation to whose lot first owner caused damage – duty of owners corporation to maintain common property

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

COSTS - application for costs of vacated

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

ASSIGNMENT - assignment of cause of action - GC9 of Building Contract forbade assignment of the contract or any payment thereunder without prior written approval - held an assignment of a claim for payment without consent by Liquidator of the contractor did not have effect as an equitable assignment. CORPORATIONS - winding up - disposition by Liquidator of claim for payment took effect under s477(2) of Corporations Act notwithstanding that assignment was not otherwise possible.

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

TORT - negligence - pathway across strata home units in use for many years as a short cut between a primary school and the main road - pathway visible at night for a short distance due to street lighting but otherwise unlit - plaintiff falls into a drain culvert which is visible during the day but not on a dark night - duty of care - whether duty of care breached - nature and extent of any obligation of the defendant to trespassers using the pathway at night - whether drain structure an obvious

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

COSTS -- assessment -- certificate -- taken to be

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

REAL PROPERTY – Strata schemes – Agreement for managing common property – Whether such agreement was authorised by general meeting of owners corporation, or by its executive committee, or by the affixation of its seal, or was entered into by conduct. - CONTRACT – Breach – Repudiation – Whether conduct of manager of common property of strata scheme in using electricity chargeable to the owners corporation was a breach justifying termination of the contract. - EQUITY – Remedies – Injunctions – Whe

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

STRATA MANAGEMENT – building with mixed commercial and residential – two Owners Corporations sharing costs for shared facilities – obligations in relation to determining shared costs – STRATA MANAGEMENT STATEMENTS (SMS) – whether dispute has arisen regarding proportions of shared costs – appointment of Expert under dispute resolution mechanism – conduct of parties – whether implied term – amendment of SMS – whether in circumstances Court should appoint Expert

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

PRACTICE AND PROCEDURE - proceedings - separate questions - where some issues might be more appropriately determined by an expert in accordance with agreement - whether part of proceedings should be stayed

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

COSTS - various applications for special costs orders including a Sanderson order or Bullock order and orders for indemnity costs following service of Offers of Compromise - application for an order that interest run on unpaid party/party costs

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

Home and Commercial Units - Strata Titles - Application to terminate strata scheme - Appropriate principles - Borsky v Proprietors Strata Plan No 19833 (1986) 7 NSWLR 84 applied - Strata Titles Act 1973, s 51

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

Proportionate liability provisions of Civil Liability Act - Whether proportionate liability provisions of Civil Liability Act apply to claims for breach of statutory warranties implied by Home Building Act

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

STRATA TITLES – whether agreement is a “caretaker agreement” – power to make by-laws – validity of by-laws – by-laws and necessary degree of connection. - CONTRACTS – illegal and void contracts – whether grant of rights was illegal because party did not hold licence as required by statute – whether contract void or unenforceable because of illegality – impermissible delegation of the owners corporation’s functions. - PRACTICE AND PROCEDURE – discretionary grounds for granting declaratory relief

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

PRACTICE AND PROCEDURE :- separate determination of questions - whether facilitate just; quick and cheap resolution of real issues - order for separate determination not made - early final hearing of all issues ordered - directions for preparation for hearing made

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

PERSONAL INJURY - claim in contract and tort by a guest at premises for injuries sustained in a fall at the top of the entrance steps - whether any of the defendants owed a duty of care as occupier of the premises at the point of the plaintiff’s fall - if so, whether the duty of care as occupier was breached - contributory negligence - whether Trade Practices Act 1974 applies - if so, whether there was a breach of an implied warranty DAMAGES - out-of-pocket expenses - future medical expenses - e

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

PROCEDURE – Supreme Court Procedure – New South Wales – Jurisdiction and generally – Jurisdiction – whether Supreme Court of New South Wales has jurisdiction to remove from the District Court, pursuant to Civil Procedure Act 2005, s 140, an appeal under (NSW) Strata Schemes Management Act 1996, s 200.

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

ORDERS - final orders in lengthy reference process - whether

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

PROCEDURE – Costs – Departing from the general rule – costs follow the event – interest on costs

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

BUILDING AND CONSTRUCTION—Home Building Act 1989 Part 2C—joint venture to construct aged person units—one joint venturer contracts with builder to erect units on land—other joint venturer is the registered proprietor of the land—owners corporation acquires title from registered proprietor—whether owners corporation is entitled to the benefit of a statutory warranty enforceable against the builder by operation of s 18D of the Home Building Act 1989

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

CORPORATIONS – STATUTORY DEMAND – COSTS – SOLICITORS – Defendant overlooks service of Statutory Demand – Plaintiff takes advantage of oversight, knowing debt disputed, and files winding up application against obviously solvent Defendant – proceedings eventually settled – costs dispute – indemnity costs sought – both parties’ solicitors acted in inflammatory manner – observations on professional conduct.

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

ADMINISTRATIVE LAW – statutory appeal under s 67(1) of the Consumer, Trader and Tenancy Tribunal Act 2001 – decision by Consumer, Trader and Tenancy Tribunal concerning the amount of excess payable for an insurance claim made under a statutory policy of insurance issued pursuant to Home Building Act 1989 – $500 or $100,500 – whether only a factual question involved or whether the appeal involves a question with respect to a matter of law - INSURANCE LAW – construction of statutory policy of insu

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

CONTRIBUTION - whether a dismissal of main proceedings against a joint tortfeasor on a procedural basis precludes a claim for contribution by another joint tortfeasor - STATUTORY INTERPRETATION - whether the imposition of the statutory obligation on an owners corporation under s 62 of the Strata Schemes Management Act 1996 amounts to "damage" - REFEREES - adoption of report

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

COSTS - application for indemnity costs based on an offer of compromise in respect of which the defendant obtained a

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

BUILDING CONTRACT - breach by builder - work not in conformity with plans & specifications - waterproofing system - whether system installed as effective as that specified - query whether issue one of mitigation with onus on builder. - BUILDING CONTRACT - breach by builder - whether demolition and reinstatement to produce compliance with contract reasonable - whether damages recoverable on that basis. - HOME BUILDING INSURANCE - breach of statutory implied warranties by builder – insurance - suc

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

APPEAL - Practice and procedure - Question of law - Cross claim in Local Court for damages and loss of rent - Finding by Magistrate that plaintiff statute barred from cause of action and that defendant did not breach statutory duty - Whether Magistrate erred in not finding for plaintiff

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

CORPORATIONS – COSTS – Application to set aside Statutory Demand – whether Defendant creditor should bear costs on the indemnity basis when put on notice of fatal flaw in creditor’s Statutory Demand.

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

REFEREES/REFERENCES - Whether the Referee's explanation impacts on findings previously made in

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

STRATA TITLES – Duty of Owners’ Corporation to maintain common property in Strata Schemes Management Act 1996 s 62(1) – Ingress of water through exterior walls caused damage to carpet in August 2003, ineffective repairs were arranged by Owners’ Corporation, dampness and water leaks in 2005 and 2006, flooding in June 2007, extensive interior damage, tenant left, premises uninhabitable from about August 2006 – Many calls for action by Owners’ Corporation and no effective response – Claim for damag

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

TORTS - claim by a tenant against the proprietors of a strata plan for injuries received on the common property of a building in which he resided - whether the duty of care as occupier was breached - contributory negligence

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

BUILDING CONTRACTS - Building and Construction Industry Security of Payment Act 1999 (NSW) - progress claim served on superintendent - whether service of progress claim on superintendent that is also a payment claim under the Act constitutes valid service of payment claim on owners corporation for the purpose of s 31 - no stipulation in contract authorising service of payment claim on superintendent on behalf of owners corporation - whether as a matter of practice parties objectively intended th

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

CORPORATIONS - winding up in insolvency - requirements for service of statutory demand and originating process - effect of tender of payment of creditor's claim - presumption of insolvency from non-compliance with statutory demand - requirements for proof of solvency

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

COSTS – where plaintiff seeks leave to discontinue proceedings in light of action taken by defendant after proceedings instituted which removes need for further proceedings – where plaintiff’s success is only partial – whether to depart from ordinary costs consequences of discontinuance.

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

COSTS :- principles to apply in Class 1; effective surrender of a party; absence of disentitling conduct by moving party

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

Proceedings commenced by summons - grounds for relief unclear - application for summary dismissal on grounds that no reasonable cause of action disclosed - Held: application for dismissal premature - orders made requiring plaintiff to plead its case.

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

Building and construction contract – Fire detection and alarm system - Total failure of consideration - Requirement to supervise – Responsibility for design

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

PROFESSIONS AND TRADES – lawyers – liens – whether the client should pay the solicitors professional and photocopying costs incurred after termination of the retainer – construction of retainer agreement – where there is no distinction to be drawn between this case and another case considering the same form of retainer

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

LIMITATION OF ACTIONS - general - statute of limitation – plaintiff sought to join, under r 6.19 of the Uniform Civil Procedure Rules 2005, an additional defendant (“Brookfield”) to the action so as to make a claim against it in tort – whether the joinder was futile because the claim was statute barred under s 14(1)(b) of the Limitations Act 1969 – held that there was not sufficient information known of the damage suffered by the plaintiff as a result of Brookfield’s negligence and the circumsta

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.

PROCEDURE - costs - departing from the general rule - order for costs on indemnity basis –defendants made an offer to the plaintiff under r 20.26 of the UCPR, to which r 42.15(2)(b)(i) applied, which the plaintiff rejected – whether the Court should exercise its discretion not to award the defendants indemnity costs as contemplated by r 42.15(2) – plaintiff argued that such discretion should be exercised because the plaintiff’s non-acceptance of the offer was “not plainly unreasonable” – held th

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

PROFESSIONS AND TRADES - lawyers - liens - whether the client should pay the solicitors professional and photocopying costs incurred after termination of the retainer - construction of retainer agreement - no express obligation in the retainer agreement that firm should be paid professional and photocopying costs incurred after termination

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

PRACTICE AND PROCEDURE – Claim for damages by Owners’ Corporation against builders for defective construction - reference to referee of both liability and quantum – referee reports on liability and quantum – parties agree that reports on liability should be adopted – parties also agreed on quantum of damages in respect of some defects – application by plaintiff that report on quantum should be rejected and application by defendants that report on quantum should be adopted – where referee rejecte

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

Strata Schemes Management Act - obligations on owners corporation under section 62 to properly maintain and keep in a state of good and serviceable repair common property - owners corporation brings proceedings against builders for defective balustrades on balconies - individual owner seeks damages against owners corporation for breach of obligations imposed by section 62 - query whether bringing and prosecuting action against builder satisfies the owners corporations obligations under section 6

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

PROCEDURE – security for costs – cross-defendants seek orders that cross-claim filed by first defendant be dismissed under r 42.21(3) of the Uniform Civil Procedure Rules for failure to comply with order requiring provision of security for costs – consideration of all relevant circumstances - cross-claim dismissed - PROCEDURE – cross-defendants seek orders that cross-claims filed by second defendant be dismissed under r 13.4(1) of the Uniform Civil Procedure Rules – onus on cross-defendants to s

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

STRATA TITLES - execution of deeds - deed executed by Strata Managing Agent without complying with s238(3) of Strata Schemes Management Act and attesting date of affixing seal did not bind the Owners Corporation - CONTRACT - repudiation - Building Manager used electricity through the meter of the Owners Corporation for five years without installing its own meter and without paying - HELD repudiatory conduct termination was effective

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

BUILDING AND CONSTRUCTION CONTRACTS – home owners’ warranty insurance – date of commencement of work – whether statutory test of commencement is exclusive – limitation periods – whether notification of defects provided within time – statutory discretion to extend time – whether discretion arises – if discretion had arisen, whether it should have been exercised. - STRATA TITLES – management and control – awareness of defects – whether through owners’ corporation or proprietors.

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