Shih & ors v The Owners - Strata Plan No 87879 [2018] NSWCATCD 74

Shih & ors v The Owners - Strata Plan No 87879 [2018] NSWCATCD 74

The respondent was entitled to defer compliance with the duty to repair under s 106(4) during periods when actions against the builder (via OFT or Tribunal) were on foot, provided safety was not affected. For the period (11 March 2017 to 31 March 2017) when no such action was ongoing, the respondent remained strictly liable for loss caused by the water penetration. Damages for lost rent were awarded for that period, reduced by the rent that could have been achieved with the premises in its defective state. The claim for carpet damage failed as it predated the relevant legislative amendment allowing damages claims. The Tribunal declined to make a rectification order as the respondent was...

Parties
Applicant: Susan Shih; Applicant: Virginia Shih; Applicant: Emiliano Shih; Respondent: The Owners-Strata Plan No 87879
Jurisdiction
Australia
Judgment Date
28 November 2018
Procedural Posture
Strata/consumer and Commercial Dispute / Hearing and Determination at Tribunal
Outcome
The respondent to pay the applicants $542.86, otherwise the application dismissed.
Legal Topics
Common Property, Owner Corporation Duties, Damages, Statutory Interpretation
Land Law Strata Law Common Property Owner Corporation Duties Damages Statutory Interpretation

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Parties

Susan Shih

Applicant

Virginia Shih

Applicant

Emiliano Shih

Applicant

The Owners-Strata Plan No 87879

Respondent

Procedural Posture

Strata/consumer and Commercial Dispute / Hearing and Determination at Tribunal

Legal Issues

  1. 1 Whether s 106(4) of the Strata Schemes Management Act 2015 (NSW) excepts the respondent from liability under s 106(5)
  2. 2 Whether there was a failure to mitigate losses
  3. 3 Whether the claimed loss of rental income is a reasonably foreseeable loss

Ratio Decidendi

The respondent was entitled to defer compliance with the duty to repair under s 106(4) during periods when actions against the builder (via OFT or Tribunal) were on foot, provided safety was not affected. For the period (11 March 2017 to 31 March 2017) when no such action was ongoing, the respondent remained strictly liable for loss caused by the water penetration. Damages for lost rent were awarded for that period, reduced by the rent that could have been achieved with the premises in its defective state. The claim for carpet damage failed as it predated the relevant legislative amendment allowing damages claims. The Tribunal declined to make a rectification order as the respondent was...

Court Disposition

The respondent to pay the applicants $542.86, otherwise the application dismissed.

Orders

  • The respondent, The Owners-Strata Plan No 87879, pays to the applicants, Susan Shih, Virginia Shih and Emiliano Shih, the amount of $542.86 immediately.
  • Otherwise the application is dismissed.