Decisions table

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.

PRACTICE & PROCEDURE – Application by first and fifth defendants to strike out plaintiff’s amended statement of claim – Application by first and fifth defendants that proceedings be summarily dismissed – Plaintiff’s causes of action allegedly statute barred – Section 14(1)(b) Limitation Act 1969 (NSW) – Whether limitation question should be decided in interlocutory proceedings - TORT – First defendant engaged to design and construct works of refurbishment on building – Fifth defendant engaged to

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

Special levy under s76(4) of Strata Schemes Management Act - Service of notice of imposition of levy under s78 Strata Schemes Management Act - Indemnity costs

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

REAL PROPERTY – strata and related titles and occupancy – charge given by individual lot holders over their lots – nature of interest of lot holder in common property – whether charge extends to lot holders interest in common property – CONVEYANCING – LAND TITLES UNDER THE TORRENS SYSTEM – caveats against dealings – application for extension of caveat – whether to be considered as analogous to application for interlocutory injunction, or as analogous to application for final injunction – appropr

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

Disqualification for apprehended bias - test that fair-minded lay observer might reasonably apprehend the judge might not bring impartial mind to decision - observations which in isolation expressed views on credibility without opportunity for submissions - hypothetical observer is informed, and does not look at matters in isolation - taking into account circumstances in which observations made and totality of what judge said, test not satisfied. D

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

EVIDENCE - Admissibility and Relevancy - Whether the tender of an agreement to the terms of a deed of settlement and release agreed to after a mediation is governed by the Civil Procedure Act 2005, s 29(2) or the Supreme Court Act 1970, s 110P(4) and s 110P(5) - Whether the Civil Procedure Act 2005, Sch 6, cl 5(1) or cl 10(a) applies - Whether agreement on the deed occurred in the course of the follow-up of the mediation and hence during the mediation session as defined in s 110P(1) - Whether so

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

Appeal - Costs Review Panel - cross claim, solicitor's hourly rates, disbursements

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

PROCEDURE - Amendment - late amendment of pleading during trial - whether triable case on proposed new particular - application rejected

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

EVIDENCE - expert evidence - expert "safety consultant" - opinions no more than common sense, or speculation not based on training experience or study - report rejected

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

Development Consent :- consent to development application for strata title unit - work undertaken on common property - whether consent of owners' corporation required - whether development application related to work on common property - whether consent invalid - discretion

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

Notice of Motion seeking Mareva order in relation to commercial real estate - general principles restated - Question of characterisation of claim as a claim for resulting or constructive trust

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

Challenge to decision on appeal from adjudication - new evidence - fresh hearing or appeal - statutory construction - power to order payment of costs when appeal is dismissed because of specified reasons - meaning of "lacking in substance" - the making of the order is discretionary - extension of time.

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 - Lots used by lessees as fast food outlets - Proper construction of Statement - Whether obligation in Statement imposed upon lessees or proprietors only - Whether lessees in breach of covenant contained in s 28W(2)(b) of Strata Schemes (Freehold Development) Act 1973 - PROCEDURE - Whether leave should be granted to raise point not taken in cour

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

PROCEDURE - Application of Civil Liability Act 2002 as amended by the Civil Liability Amendment (Personal Responsibility) Act 2002 to re-trial. - LIABILITY AND DAMAGES - Appellant unsuccessfully sought damages when he caught his foot in raised concrete lip and fell while carrying a ladder in a driveway between two blocks of flats - Whether risk reasonably foreseeable - duty of care of occupier to invitee on domestic site for occupier's benefit as compared to highway authority's duty of care to p

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

NEGLIGENCE - Personal injury - Occupiers' liability - Breach of duty of care - Nature and extent of owners corporations' statutory duties of maintenance and repair - Resident injured when glass in front door of building shattered over his arm - Whether owners corporation of building under a duty to inspect and replace glass in accordance with current safety standards - Whether s 62 of the Strata Schemes Management Act 1996 imposed on owners' corporation duty to inspect common property over and a

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

NEGLIGENCE - isolated step - obvious hazard - everyday risk - failure to alert pedestrians - reasonable care for the safety of an invitee to commercial premises - Wyong Shire v Shirt calculus - temporary glare - distraction of injured person - causation.(ND)

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

Appeal

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

PROCEDURE - costs - where defendant files submitting appearance after claims in summons amended - whether defendant's costs

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

PRACTICE AND PROCEDURE - interlocutory application - where plaintiff purportedly held extraordinary meeting appointing new strata managing agent - where plaintiff sought interlocutory orders against former strata managing agent providing for delivery up of documents and payment of trust moneys to it - where plaintiff gave notice under s 105 of the Strata Schemes Management Act - whether extraordinary general meeting validly called - balance of convenience - where alternative dispute mechanism av

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

Contract - whether void for illegality - Strata Schemes Management Act 1996 - "initial period" when developer controls owners corporation prior to lot owners having control - s 113(1)(b) prohibits owners corporation from incurring a debt for an amount exceeding the amount then available for repayment of the debt from administrative fund or sinking fund - owners corporation entered into caretaker agreement under which fee was payable - incurred a debt - nothing in funds - whether prohibition on e

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

PROCEDURE - costs - no question of principle

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

Practice & Procedure - Standing of owners corporation to sue in negligence with respect to common property - Meaning of section 227 of the Strata Scheme Management Act 1996 - Nature of an owners corporation's statutory agency

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

REAL PROPERTY - Crown lands - licence granted by Crown over site of jetty and slipway on bank of tidal river - nature of rights created - whether jetty and slipway are fixtures - effect of provisions of licence declaring them to be "property of" licensee but precluding alteration, removal and destruction while licence subsists - common law rights of public in relation to tidal foreshore - attenuation thereof by statute - TORTS - trespass to land - whether contractual licensee without right of ex

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

STRATA SCHEME - caretaker agreement - meaning of "incur a debt" - whether debt incurred in initial period without available funds - whether agreement illegal - UNENFORCEABILITY - principles - scope and purpose of statutory prohibition - whether recovery of debt only consequence of illegality - whether unenforceability a legal consequence - public policy

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

Appeal from the Consumer Trader and Tenancy Tribunal's determination as to validity of by-law - Factual issues - No error of law

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

EVIDENCE - admissibility - correspondence on settlement negotiations - prima facie inadmissible - whether admissible because of need to "control the conduct of a proceeding" or under exception for "deliberate abuse of power"

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

COSTS of appeal

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

ASSESSMENT OF DAMAGES - injury to ankle - effect on employment and ability to play sport - whether damages awarded for non-economic loss, future economic loss, future domestic assistance and loss of future superannuation were manifestly excessive - meaning of 'most extreme case'.

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

[CONTRACT] - Whether the parties agreed that the plaintiff's use of the common property in a high rise apartment block was to be without fee - Whether the signing of and support for the plaintiff's development application constituted a contract between the parties that no fee would be charged for the use of common property. - [MISLEADING & DECEPTIVE CONDUCT] - Whether a letter from the Executive Committee of the defendant contained a representation that no fee would be charged to the plaintiff f

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