Horan v The Owners – Strata Plan No. 68307 [2024] NSWCATAP 118

Horan v The Owners – Strata Plan No. 68307 [2024] NSWCATAP 118

The Tribunal erred in its requirement for proof of certainty regarding the tenant's intention to remain for the entire vacancy period. The principles in Sellars and Malec allow estimation of the value of lost opportunity, and evidence established a non-negligible chance the property would have continued to be rented for a period beyond July 2020. Damages should be awarded for five additional months (July to December 2020) at the established monthly rent, plus electricity charges for the later period. Leave to appeal is granted, the appeal is allowed in part, and the orders are varied accordingly.

Jurisdiction
Australia
Judgment Date
24 June 2024
Procedural Posture
Civil Appeal / Appeal Decision
Outcome
leave to appeal granted, appeal allowed in part
Legal Topics
['assessment of Damages' 'statutory Duty' 'loss of Opportunity' 'breach of Duty' 'procedural Fairness' 'statutory Interpretation']
['damages' 'administrative Law'] ['assessment of Damages' 'statutory Duty' 'loss of Opportunity' 'breach of Duty' 'procedural Fairness' 'statutory Interpretation']

Case Brief

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Procedural Posture

Civil Appeal / Appeal Decision

Legal Issues

  1. 1 ['Whether the Tribunal erred in its approach to assessing damages for loss of opportunity to rent during the vacancy period' 'Whether the Tribunal applied the correct legal test for damages under s 106(5) of the Strata Schemes Management Act 2015 (NSW)' 'Whether procedural fairness was afforded in the assessment of damages' 'Whether irrelevant considerations impacted the damages assessment' 'Whether leave to appeal should be granted']

Ratio Decidendi

The Tribunal erred in its requirement for proof of certainty regarding the tenant's intention to remain for the entire vacancy period. The principles in Sellars and Malec allow estimation of the value of lost opportunity, and evidence established a non-negligible chance the property would have continued to be rented for a period beyond July 2020. Damages should be awarded for five additional months (July to December 2020) at the established monthly rent, plus electricity charges for the later period. Leave to appeal is granted, the appeal is allowed in part, and the orders are varied accordingly.

Court Disposition

leave to appeal granted, appeal allowed in part

Orders

  • ['Order 2(b) is varied: the loss of opportunity to rent the unit for the months of July to December 2020 in the amount of $45,060.' 'Order 2(c) is varied: electricity charges incurred by the applicant in the amount of $429.26 for the period the lot was unoccupied from 1 January 2021 to 11 November 2021.' 'Order 3 is...