Tezel v The Owners - Strata Plan No 74232 [2022] NSWCATAP 149

Tezel v The Owners - Strata Plan No 74232 [2022] NSWCATAP 149

Tribunal erred in its construction of s 106(6): the limitation applies to crystallised claims and does not extinguish rights to claim for loss arising from ongoing breaches within two years prior to proceedings. The appellant's loss was recoverable, as the claim was brought in time and liability/quantum was not challenged.

Parties
Appellant: Feride Tezel; Respondent: The Owners – Strata Plan No 74232
Jurisdiction
Australia
Judgment Date
10 May 2022
Procedural Posture
Appeal / Appeal Panel Decision
Outcome
Appeal allowed
Legal Topics
Statutory Duty to Repair Common Property, Limitation Period for Damages, Loss of Rental Income, Interpretation of Strata Schemes Management Act 2015 (nsw)
Strata Law Limitation of Actions Statutory Duty to Repair Common Property Limitation Period for Damages Loss of Rental Income Interpretation of Strata Schemes Management Act 2015 (nsw)

Case Brief

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Parties

Feride Tezel

Appellant

The Owners – Strata Plan No 74232

Respondent

Procedural Posture

Appeal / Appeal Panel Decision

Legal Issues

  1. 1 Whether lot owner's claim for damages for lost rent was statute barred under s 106(6) of Strata Schemes Management Act 2015 (NSW)
  2. 2 Application and construction of limitation period for claim under s 106(5) and (6)
  3. 3 Nature of ongoing statutory duty for repair and its impact on limitation period

Ratio Decidendi

Tribunal erred in its construction of s 106(6): the limitation applies to crystallised claims and does not extinguish rights to claim for loss arising from ongoing breaches within two years prior to proceedings. The appellant's loss was recoverable, as the claim was brought in time and liability/quantum was not challenged.

Court Disposition

Appeal allowed

Orders

  • The appeal is allowed.
  • The decisions of the Tribunal delivered on 2 November 2021 and on 10 December 2021 (the latter on costs) are set aside.