The Owners – Strata Plan No 74232 v Tezel [2023] NSWCA 35

The Owners – Strata Plan No 74232 v Tezel [2023] NSWCA 35

The respondent first became aware in 2016 that she was suffering loss of rent caused by the owners corporation's breach of its duty to maintain and repair common property. On the proper construction of s 106(6) of the Strata Schemes Management Act 2015 (NSW), the two-year limitation period runs from first awareness of that kind or type of loss, not from awareness of the particular period of loss later claimed and not afresh each day while the breach continues. The claim commenced on 6 November 2020 was therefore out of time, and the Appeal Panel erred in holding otherwise.

Jurisdiction
Australia
Judgment Date
06 March 2023
Procedural Posture
Application for Leave to Appeal and Appeal on a Question of Law Under S 83(1) of the Civil and Administrative Tribunal Act 2013 (nsw), With Application for Leave to Cross Appeal / Court of Appeal From the Appeal Panel of the NSW Civil and Administrative Tribunal
Outcome
Leave to appeal granted; appeal allowed; Appeal Panel orders set aside and the appeal to the Appeal Panel dismissed; leave to cross-appeal refused with costs.
Legal Topics
['owners Corporation Duty to Maintain and Repair Common Property' 'recovery of Reasonably Foreseeable Loss Under S 106(5) of the Strata Schemes Management Act 2015 (nsw)' 'two Year Limitation Period Under S 106(6) of the Strata Schemes Management Act 2015 (nsw)' 'loss of Rent Caused by Water Ingress' 'appeal on a Question of Law From NCAT Appeal Panel' 'cross Appeal Under S 83 of the Civil and Administrative Tribunal Act 2013 (nsw)']
['land Law' 'strata Title' 'statutory Interpretation' 'limitation of Actions' 'appeals'] ['owners Corporation Duty to Maintain and Repair Common Property' 'recovery of Reasonably Foreseeable Loss Under S 106(5) of the Strata Schemes Management Act 2015 (nsw)' 'two Year Limitation Period Under S 106(6) of the Strata Schemes Management Act 2015 (nsw)' 'loss of Rent Caused by Water Ingress' 'appeal on a Question of Law From NCAT Appeal Panel' 'cross Appeal Under S 83 of the Civil and Administrative Tribunal Act 2013 (nsw)']

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Procedural Posture

Application for Leave to Appeal and Appeal on a Question of Law Under S 83(1) of the Civil and Administrative Tribunal Act 2013 (nsw), With Application for Leave to Cross Appeal / Court of Appeal From the Appeal Panel of the NSW Civil and Administrative Tribunal

Legal Issues

  1. 1 ["Whether the respondent's claim for loss of rent under s 106(5) of the Strata Schemes Management Act 2015 (NSW) was barred by s 106(6)." 'Whether the phrase "the loss" in s 106(6) refers to the kind or type of loss of which the lot owner first became aware, or to the particular loss claimed in the proceedings.' "Whether awareness of loss resets on a rolling basis while an owners corporation's breach of s 106 continues." 'Whether the proposed grounds of cross-appeal raised questions of law under s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW).']

Ratio Decidendi

The respondent first became aware in 2016 that she was suffering loss of rent caused by the owners corporation's breach of its duty to maintain and repair common property. On the proper construction of s 106(6) of the Strata Schemes Management Act 2015 (NSW), the two-year limitation period runs from first awareness of that kind or type of loss, not from awareness of the particular period of loss later claimed and not afresh each day while the breach continues. The claim commenced on 6 November 2020 was therefore out of time, and the Appeal Panel erred in holding otherwise.

Court Disposition

Leave to appeal granted; appeal allowed; Appeal Panel orders set aside and the appeal to the Appeal Panel dismissed; leave to cross-appeal refused with costs.

Orders

  • ['Leave to appeal granted.' 'The applicant file a notice of appeal in accordance with the draft notice of appeal within 7 days.' 'Appeal allowed.' 'Set aside the orders of the Appeal Panel of the Civil and Administrative Tribunal of New South Wales in proceedings 2021/347082 and in lieu thereof, order that the...