Silberstein v Strata Choice Pty Ltd & Hecker Australia Pty Ltd [2022] NSWCATAP 375

Silberstein v Strata Choice Pty Ltd & Hecker Australia Pty Ltd [2022] NSWCATAP 375

The Tribunal erred in concluding that it lacked jurisdiction and power under s 232 of the Strata Schemes Management Act 2015 (NSW) to make a damages order against the strata managing agent and building manager. Vickery and Coscuez establish that s 232 is broad enough to support damages relief for complaints or disputes within s 232(1)(a)-(f), and that power is not confined to s 106 claims against an owners corporation. Section 232 is also not limited to functions of an owners corporation, because s 232(1)(e) refers to functions conferred or imposed by or under the Act and the Act refers to functions of strata managing agents and building managers. Whether the appellant's pleaded claims in...

Jurisdiction
Australia
Judgment Date
05 December 2022
Procedural Posture
Internal Appeal in a Strata Title Management Dispute / Appeal From a Decision Summarily Dismissing the Appellant's Claims Against the First and Second Respondents; Leave to Appeal Granted and Appeal Allowed
Outcome
Leave to appeal granted; appeal allowed; orders of the Tribunal set aside; respondents ordered to pay the appellant's costs of the summary dismissal application and the appeal.
Legal Topics
['strata Scheme Dispute Resolution' 'tribunal Jurisdiction and Powers' 'damages Under S 232 of the Strata Schemes Management Act 2015 (nsw)' 'summary Dismissal' 'leave to Appeal' 'claims Against Strata Managing Agent and Building Manager']
['land Law' 'strata Title' 'civil and Administrative Procedure' 'negligence'] ['strata Scheme Dispute Resolution' 'tribunal Jurisdiction and Powers' 'damages Under S 232 of the Strata Schemes Management Act 2015 (nsw)' 'summary Dismissal' 'leave to Appeal' 'claims Against Strata Managing Agent and Building Manager']

Case Brief

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Procedural Posture

Internal Appeal in a Strata Title Management Dispute / Appeal From a Decision Summarily Dismissing the Appellant's Claims Against the First and Second Respondents; Leave to Appeal Granted and Appeal Allowed

Legal Issues

  1. 1 ["Whether leave to appeal was required and should be granted from the Tribunal's summary dismissal decision." 'Whether the Tribunal has jurisdiction and power under s 232 of the Strata Schemes Management Act 2015 (NSW) to order damages in a strata scheme dispute against a strata managing agent and building manager.' 'Whether s 232 of the Strata Schemes Management Act 2015 (NSW) is confined to claims and orders against an owners corporation.' 'Whether the Tribunal may determine negligence or general law claims where the complaint or dispute falls within s 232(1)(a)-(f) of the Strata Schemes Management Act 2015 (NSW).']

Ratio Decidendi

The Tribunal erred in concluding that it lacked jurisdiction and power under s 232 of the Strata Schemes Management Act 2015 (NSW) to make a damages order against the strata managing agent and building manager. Vickery and Coscuez establish that s 232 is broad enough to support damages relief for complaints or disputes within s 232(1)(a)-(f), and that power is not confined to s 106 claims against an owners corporation. Section 232 is also not limited to functions of an owners corporation, because s 232(1)(e) refers to functions conferred or imposed by or under the Act and the Act refers to functions of strata managing agents and building managers. Whether the appellant's pleaded claims in...

Court Disposition

Leave to appeal granted; appeal allowed; orders of the Tribunal set aside; respondents ordered to pay the appellant's costs of the summary dismissal application and the appeal.

Orders

  • ['Leave to appeal is granted.' 'The appeal is allowed.' 'The orders made by the Tribunal on 20 May 2022 and 23 September 2022 are set aside.' "The appellant's costs of the summary dismissal application determined by the Tribunal on 20 May 2022 are to be paid by the first and second respondents." "The appellant's...