Chang v The Owners – Strata Plan No. 92448 [2022] NSWCATCD 156

Chang v The Owners – Strata Plan No. 92448 [2022] NSWCATCD 156

The common property waterproofing affecting Lots 9 and 10 was defective from about November 2020 and was not finally rectified until 9 February 2022, so the Owners Corporation breached its strict duty under s 106(1). Delays caused by the insurer or COVID-19 Public Health Orders did not excuse that strict duty. The defective waterproofing caused recurring water ingress, mould and demolition of the hallway floor in Lot 10, making the premises uninhabitable between 21 July 2021 and 9 February 2022. The Lot Owner proved that, but for the breach, she would have received rent of $430.00 per week for 204 days, making lost rent of $12,531.43 a reasonably foreseeable consequence of the breach.

Jurisdiction
Australia
Judgment Date
09 September 2022
Procedural Posture
Application Under S 106(5) of the Strata Schemes Management Act 2015 (nsw) for Damages for Breach of Statutory Duty to Maintain Common Property / Principal Judgment After Special Fixture Hearing
Outcome
Application allowed in part; damages awarded for proved lost rent.
Legal Topics
['common Property' 'maintenance and Repair of Common Property' 'breach of Statutory Duty' 'damages for Lost Rent' 'water Ingress and Mould']
['land Law' 'strata Title'] ['common Property' 'maintenance and Repair of Common Property' 'breach of Statutory Duty' 'damages for Lost Rent' 'water Ingress and Mould']

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Procedural Posture

Application Under S 106(5) of the Strata Schemes Management Act 2015 (nsw) for Damages for Breach of Statutory Duty to Maintain Common Property / Principal Judgment After Special Fixture Hearing

Legal Issues

  1. 1 ['Whether the Owners Corporation was in breach of its duty under s 106(1) of the Strata Schemes Management Act 2015 (NSW) to maintain the common property in a good and serviceable state of repair.' 'Whether the Lot Owner suffered reasonably foreseeable loss because of that breach.' 'Whether delays caused by the insurer or COVID-19 Public Health Orders answered the claim.' 'Whether Lot 10 was uninhabitable between 21 July 2021 and 9 February 2022.']

Ratio Decidendi

The common property waterproofing affecting Lots 9 and 10 was defective from about November 2020 and was not finally rectified until 9 February 2022, so the Owners Corporation breached its strict duty under s 106(1). Delays caused by the insurer or COVID-19 Public Health Orders did not excuse that strict duty. The defective waterproofing caused recurring water ingress, mould and demolition of the hallway floor in Lot 10, making the premises uninhabitable between 21 July 2021 and 9 February 2022. The Lot Owner proved that, but for the breach, she would have received rent of $430.00 per week for 204 days, making lost rent of $12,531.43 a reasonably foreseeable consequence of the breach.

Court Disposition

Application allowed in part; damages awarded for proved lost rent.

Orders

  • ['The Owners – Strata Plan No. 92448 must pay Matilda Chang $12,531.43 immediately.']