The Owners – Strata Plan No 2661 v Selkirk [2024] NSWSC 760

The Owners – Strata Plan No 2661 v Selkirk [2024] NSWSC 760

It is open to an owners corporation to establish that all or part of a lot owner's claimed damages are not damages for foreseeable losses as a result of the owners corporation's breach of duty, including by establishing that the lot owner has behaved unreasonably in failing to mitigate loss; the Appeal Panel erred in law to the extent it held otherwise by treating the statutory power under s 122 as a complete answer to mitigation.

Jurisdiction
Australia
Judgment Date
21 June 2024
Procedural Posture
Appeal / Decision on Application for Leave to Appeal and Substantive Appeal
Outcome
Grant leave to appeal (confined to mitigation defence); appeal allowed; mitigation defence is available; remittal as per reasons; referral to Office of the Legal Services Commissioner.
Legal Topics
['strata Title' 'owners Corporation Duties' 'duty to Repair and Maintain Common Property' 'claims Under Strata Schemes Management Act 2015 (nsw)' 'mitigation of Loss' 'statutory Damages' 'causation']
['land Law'] ['strata Title' 'owners Corporation Duties' 'duty to Repair and Maintain Common Property' 'claims Under Strata Schemes Management Act 2015 (nsw)' 'mitigation of Loss' 'statutory Damages' 'causation']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal / Decision on Application for Leave to Appeal and Substantive Appeal

Legal Issues

  1. 1 ['Whether a mitigation defence is available in answer or partial answer to a claim for damages under s 106(5) of the Strata Schemes Management Act 2015 (NSW)' "Whether the lot owner's conduct bars or reduces recovery of damages" 'Whether the Appeal Panel erred in law by excluding mitigation as a consideration under s 106(5)' 'Proper application of statutory causation and mitigation in strata claims']

Ratio Decidendi

It is open to an owners corporation to establish that all or part of a lot owner's claimed damages are not damages for foreseeable losses as a result of the owners corporation's breach of duty, including by establishing that the lot owner has behaved unreasonably in failing to mitigate loss; the Appeal Panel erred in law to the extent it held otherwise by treating the statutory power under s 122 as a complete answer to mitigation.

Court Disposition

Grant leave to appeal (confined to mitigation defence); appeal allowed; mitigation defence is available; remittal as per reasons; referral to Office of the Legal Services Commissioner.

Orders

  • ['Grant leave to appeal, confined to ground 3 of the summons filed on 5 March 2024, and otherwise refuse leave.' 'Appeal allowed.' "Answer the question 'Whether a mitigation defence is available in answer or partial answer to a claim for damages under s 106(5)': It is open to an owners corporation to seek to...