Selkirk v The Owners - Strata Plan No 2661 [2024] NSWCATAP 17

Selkirk v The Owners - Strata Plan No 2661 [2024] NSWCATAP 17

The primary Tribunal erred in law by misallocating the evidential onus regarding the scope and cause of repair obliged by the strict duty under Strata Schemes Management Act 2015 (NSW) s 106, misapplying principles concerning restoration to like or substantially similar condition, and incorrectly evaluating causation, mitigation, and quantification of the appellant's loss, particularly lost rent, leading to wrongly dismissing the appellant's claims. The appeal is allowed and remitted for reconsideration consistent with these findings.

Jurisdiction
Australia
Judgment Date
06 February 2024
Procedural Posture
Appeal / Appeal Determination With Remittal
Outcome
Appeal allowed in part/remitted
Legal Topics
['strata Schemes Management Act 2015 (nsw) S 106 Liability' 'strict Duty to Repair' 'owners Corporation Obligations' 'mitigation of Loss' 'measure and Quantification of Loss' 'onus of Proof']
['real Property' 'strata Management'] ['strata Schemes Management Act 2015 (nsw) S 106 Liability' 'strict Duty to Repair' 'owners Corporation Obligations' 'mitigation of Loss' 'measure and Quantification of Loss' 'onus of Proof']

Case Brief

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Procedural Posture

Appeal / Appeal Determination With Remittal

Legal Issues

  1. 1 ['Whether the Tribunal erred in imposing the onus of proving the scope, cause, and consequences of water damage on the appellant rather than the owners corporation' 'Whether the Tribunal misapplied the strict duty of repair under s 106 of the Strata Schemes Management Act 2015 (NSW)' 'Whether rent loss and restoration scope were properly considered and evaluated' 'Whether mitigation, causation, and evidentiary principles were properly applied, particularly regarding conduct and attempts to seek insurance or alternate remedies']

Ratio Decidendi

The primary Tribunal erred in law by misallocating the evidential onus regarding the scope and cause of repair obliged by the strict duty under Strata Schemes Management Act 2015 (NSW) s 106, misapplying principles concerning restoration to like or substantially similar condition, and incorrectly evaluating causation, mitigation, and quantification of the appellant's loss, particularly lost rent, leading to wrongly dismissing the appellant's claims. The appeal is allowed and remitted for reconsideration consistent with these findings.

Court Disposition

Appeal allowed in part/remitted

Orders

  • ['As against the first respondent Owners Strata Plan No 2661, (a) to the extent necessary leave to appeal is granted, and (b) the appeal is allowed.' 'Note that the second respondent was by consent order dated 26 October 2023 removed as a party to the appeal.' 'The proceedings are remitted for determination by the...