The Owners – Strata Plan SP20211 v Rosenthal; Rosenthal v The Owners – Strata Plan SP20211 [2018] NSWCATAP 243

The Owners – Strata Plan SP20211 v Rosenthal; Rosenthal v The Owners – Strata Plan SP20211 [2018] NSWCATAP 243

The Owners Corporation is liable to carry out specific repair works to address water ingress because statutory duties under s 106(1) SSMA 2015 were not displaced by unclear or insufficient by-laws, and only damage arising after 30 November 2016 is compensable. The full replacement of the membrane was unwarranted; only areas around lot 64 required replacement. The tribunal did not err in declining a costs order as no special circumstances were established.

Parties
Appellant in AP 17/41893, Respondent in AP 18/0172: The Owners – Strata Plan SP 20211; Respondent in AP 17/41893, Appellant in AP 18/0172: Thomas Rosenthal; Respondent in AP 17/41893, Appellant in AP 18/0172: Joanne Rosenthal
Jurisdiction
Australia
Judgment Date
15 October 2018
Procedural Posture
Appeals (internal) From Civil and Administrative Tribunal (consumer and Commercial Division) / Appeal Panel Decision
Outcome
Appeal AP 17/41893 allowed in part; orders of 29 August 2017 varied as set out; appeal AP 18/0172 refused and dismissed; costs reserved for submission.
Legal Topics
Owners Corporation Duties, Repair and Maintenance of Common Property, Interpretation of by Laws, Compensation for Breach of Statutory Duty, Costs in Tribunal Proceedings
Strata Law Administrative Law Property Law Owners Corporation Duties Repair and Maintenance of Common Property Interpretation of by Laws Compensation for Breach of Statutory Duty Costs in Tribunal Proceedings

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Parties

The Owners – Strata Plan SP 20211

Appellant in AP 17/41893, Respondent in AP 18/0172

Thomas Rosenthal

Respondent in AP 17/41893, Appellant in AP 18/0172

Joanne Rosenthal

Respondent in AP 17/41893, Appellant in AP 18/0172

Procedural Posture

Appeals (internal) From Civil and Administrative Tribunal (consumer and Commercial Division) / Appeal Panel Decision

Legal Issues

  1. 1 Whether the Owners Corporation breached its duty to repair and maintain common property under s 106(1) Strata Schemes Management Act 2015
  2. 2 Whether by-laws 6 and 23 imposed maintenance obligations on lot owners relating to works and alterations
  3. 3 Whether tribunal can award damages for breach of statutory duty under s 106(5)

Ratio Decidendi

The Owners Corporation is liable to carry out specific repair works to address water ingress because statutory duties under s 106(1) SSMA 2015 were not displaced by unclear or insufficient by-laws, and only damage arising after 30 November 2016 is compensable. The full replacement of the membrane was unwarranted; only areas around lot 64 required replacement. The tribunal did not err in declining a costs order as no special circumstances were established.

Court Disposition

Appeal AP 17/41893 allowed in part; orders of 29 August 2017 varied as set out; appeal AP 18/0172 refused and dismissed; costs reserved for submission.

Orders

  • Respondent shall investigate and correct all sources of water ingress to lot 64, including replacing waterproof membrane around lot 64 on level 20, addressing water ingress from downpipe within column to south end of main bedroom, and waterproofing the window hob to second bedroom, including correcting flashing and...
  • Respondent shall replace fire rated front door to lot 64.