King as trustee for Cascade Trust v The Owners - Strata Plan No. 19410 [2022] NSWCATCD 24

King as trustee for Cascade Trust v The Owners - Strata Plan No. 19410 [2022] NSWCATCD 24

The owners corporation breached s 106(1) of the Strata Schemes Management Act 2015 (NSW) by failing to maintain and repair the external wall of lot 43, causing mould on the outer wall of the second bedroom. This breach rendered the premises uninhabitable and entitled the applicants to remedial works (specified in orders) and damages for loss of rent. The respondent did not prove that the applicants failed to mitigate their loss by not proceeding with works that would unreasonably reduce amenity. Damages are awarded for the period from 7 November 2020 to 24 May 2022.

Jurisdiction
Australia
Judgment Date
24 January 2022
Procedural Posture
Application Under Strata Schemes Management Act 2015 (nsw) / Final Decision in Consumer and Commercial Division of NCAT
Outcome
Partially in favour of applicants
Legal Topics
['strata Title' 'common Property Maintenance' 'breach of Statutory Duty' 'remedial Works' 'damages for Loss of Rent']
['land Law'] ['strata Title' 'common Property Maintenance' 'breach of Statutory Duty' 'remedial Works' 'damages for Loss of Rent']

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Procedural Posture

Application Under Strata Schemes Management Act 2015 (nsw) / Final Decision in Consumer and Commercial Division of NCAT

Legal Issues

  1. 1 ['Whether the owners corporation breached the duty to properly maintain and repair the common property under s 106(1) of the Strata Schemes Management Act 2015 (NSW)' 'Whether the owners corporation is liable to carry out remedial works' 'Whether the owners corporation is liable to pay damages for loss of rent, and in what amount' 'Whether the applicants failed to mitigate their loss']

Ratio Decidendi

The owners corporation breached s 106(1) of the Strata Schemes Management Act 2015 (NSW) by failing to maintain and repair the external wall of lot 43, causing mould on the outer wall of the second bedroom. This breach rendered the premises uninhabitable and entitled the applicants to remedial works (specified in orders) and damages for loss of rent. The respondent did not prove that the applicants failed to mitigate their loss by not proceeding with works that would unreasonably reduce amenity. Damages are awarded for the period from 7 November 2020 to 24 May 2022.

Court Disposition

Partially in favour of applicants

Orders

  • ['The respondent is to carry out remedial works limited to treating mould on the outer wall of the second bedroom, and laundry exhaust/plant removal, by 24 May 2022 at no cost to the applicants, conditional on access.' 'Applicants have leave to renew proceedings if respondent fails to comply with the work orders,...