LAND LAW – Strata title – nuisance – hazard – tobacco smoke transmission between lots

Pittman v Newport [2022] NSWCATCD 173 (11 October 2022)

LAND LAW – Strata title – Whether proposed by-law unreasonably refused

Knight v The Owners – Strata Plan 208 [2022] NSWCATCD 170 (20 July 2022)

BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – statutory warranties – due care and skill – materials – limitation period – minor defects – preferred outcome

Lamproglou v CTY Construction Pty Ltd [2022] NSWCATCD 165 (25 July 2022)

BUILDING AND CONSTRUCTION – NCAT – Appeal of NCAT Appeal Panel decision – application to extend time for this appeal refused – summons dismissed – statutory warranties as to residential building work – breach of statutory warranty – whether new contract entered into or original contract varied – offer and acceptance – consideration – forbearance to sue – completion date of building works – leave to appeal finding of facts – interpretation of s 3B Home Building Act 1989 (NSW)

James v Jandson Pty Ltd [2022] NSWSC 1686 (12 December 2022)

ADMINISTRATIVE LAW – Home building – Application for contractor licence – a “wide range of building construction work” – application of Instrument – experience which is considered relevant – Whether applicant satisfied criterion – Whether applicant is capable of doing or supervising work for which a contractor licence is required

Issa v Commissioner for Fair Trading [2022] NSWCATOD 159 (05 December 2022)

LAND LAW – Strata title – common property – maintenance of common property – breach – damages – whether damages claim is out of time – whether compliance with duty to maintain the common property in good and serviceable repair has been deferred

Wang v The Owners – Strata Plan No. 88789 [2022] NSWCATCD 157 (07 September 2022)

LAND LAW – Strata title – common property – maintenance of common property – breach – damages

Wang v The Owners – Strata Plan No. 92448 [2022] NSWCATCD 156 (09 September 2022

LAND LAW — Strata title — By-laws

Norman v The Owners Strata Plan No 60182 [2022] NSWCATCD 152 (06 September 2022)

LAND LAW – strata title – owners corporation –maintenance and repair of common property – breach of obligation to maintain and repair common property – whether lost rental income was reasonably foreseeable consequence of breach – whether lot owners failed to mitigate loss by not renting out unit on lot

Smith v Owners – Strata Plan No. 3004 [2022] NSWSC 1599 (28 November 2022)

REAL PROPERTY – STRATA MANAGEMENT – duty to maintain and repair common property – alterations to common property – common property rights by-law – compulsory strata management – Strata Schemes Management Act 2015 (NSW) ss 90, 106, 108, 126, 143, 149

Crespel v The Owners – Strata Plan No 66165 [2022] NSWCATCD 141 (05 September 2022)

LEASES AND TENANCIES — Repairs, maintenance and alterations — Obligation to repair and maintain — Where expedited proceedings concern three year and one month lease of a residential penthouse — Where substantial parts of the plaintiff’s case no longer pressed at the hearing due to defendant’s undertakings — Where balance of the case concerned specific performance of landlord’s repair covenants in respect of internal lift maintenance, some lights, a pool heater, fridge, barbeque and panel door — Where no breaches established — Where damages would be for loss of amenity — Where damages would be an adequate remedy and specific performance would be refused

Novelly v Tamqia Pty Ltd [2022] NSWSC 1607 (24 November 2022)

LAND LAW – possession of land – where one registered proprietor made bankrupt – where no defence to claim

Aravanis and Roy in their capacity as the Trustees of the property of Lynettte Blackburn, a Bankrupt v Cunningham [2022] NSWSC 1429 (20 October 2022)

APPEAL – application to admit further evidence refused – leave to appeal refused – service by post of notice of hearing on party sufficient – no obligation on Tribunal to serve notice of hearing by email – no denial of procedural fairness by proceeding with hearing when absent party served by post – no error on a question of law.

Cheung v Talal [2022] NSWCATAP 352 (10 November 2022)

CIVIL PROCEEDINGS – Interlocutory applications – Real property

LAND LAW — Mortgages — Statutory power of sale under Real Property Act 1900 (NSW)

Harriette & Co Pty Ltd v Platine Property Development Pty Ltd [2022] NSWSC 1536 (01 November 2022)

BUILDING AND CONSTRUCTION – date of practical completion of works – jurisdiction

Kakoz v G Storm Group Pty Ltd [2022] NSWCATCD 119 (01 September 2022)

LAND LAW – Strata title – Civil Penalty – contravention of Tribunal order – s 247A Strata Schemes Management Act 2015 – assessment of penalty – deterrence – relevant considerations – relevance of maximum penalty when assessing appropriate penalty – payment of penalty – whether penalty payable to applicant, the Crown or some other person – power of the Tribunal to direct to whom the penalty is to be paid

The Owners – Strata Plan No. 61285 v Taylor (No.2) [2022] NSWCATCD 118 (09 September 2022)

REAL PROPERTY – dispute arising out of oral agreement for sale and purchase of property – dispute about terms of oral agreement, including price – where vendor disputes the price stated in the transfer that was registered and claims that the purchaser forged his signature on the transfer or, alternatively, procured his signature by unconscionable conduct – where expert evidence of forensic document examiner is inconclusive

CONTRACTS – alleged oral loan agreements – no question of principle

Yin v Li; Li v Jiang [2022] NSWSC 1512 (07 November 2022

LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – premises not subject to occupation certificate and not legally able to be occupied at commencement of tenancy – premises nevertheless fit for habitation within meaning of s 52 of Act

Aboss v Hafeez [2022] NSWCATAP 345 (04 November 2022)

CORPORATIONS — Voluntary winding up — Practice and procedure — Leave to continue proceedings in circumstances where final hearing is one week away

OWNERS STRATA PLAN 95562 v CITY WIDE MAINTENANCE AND CONSTRUCTION PTY LTD [2022] NSWSC 1509

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — repairs — landlord’s duty – whether common property within definition of “residential premises” in s 62 of the Residential Tenancies Act – held, common property not within the definition of “residential premises” in s 62 of the Residential Tenancies Act

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — rent — excessive rent – whether the need for repairs not caused by the landlord fell within s 44(1)(b) of the Residential Tenancies Act – absent a breach of the landlord’s obligation to repair, the need for repairs does not amount to the reduction or withdrawal of goods, services or facilities by the landlord

Sewell v Zvirblis [2022] NSWCATAP 337 (28 October 2022)

COSTS – security for costs – building and construction dispute between plaintiff owners corporation and defendant builder over alleged defects in townhouses – Court’s inherent power to order security for costs – proceedings not vexatious or oppressive – Uniform Civil Procedure Rules 2005 (NSW), rule 42.21(1)(d) – whether owners corporation unlikely to be able to meet adverse costs order – where owners corporation is well-organised and has raised special levies in connection with these proceedings – Court’s inherent and statutory powers to order security for costs not enlivened – application dismissed.

STRATA PLAN 99960 v SPS BUILDING CONTRACTORS PTY LTD [2022] NSWSC 1464 (14 October 2022)

APPEAL – no question of law – leave to appeal – decision not against the weight of evidence – leave refused – appeal dismissed.

LAND LAW – Strata title – owners corporation breached the duty to properly maintain and keep in a state of good and serviceable repair the common property – Whether the owners corporation is liable for damages for loss of rent – whether one concurrent cause a cause of loss

The Owners – Strata Plan No 19410 v King atf the Cascade Trust [2022] NSWCATAP 326 (20 October 2022

REAL PROPERTY – RETIREMENT VILLAGES – RESIDENTIAL (LAND LEASE) COMMUNITIES – definition and interpretation – Retirement Villages Act
1989 (NSW) ss 3, 4, 5, 7, 24A, 40, 128, 129, 130, 136, 136A, 138, 139

Coolah Home Base Pty Ltd v Tait [2022] NSWCATAP 324 (17 October 2022)

CONTRACTS – construction – whether vendor’s covenant to construct building in a proper and workmanlike manner was only a “best endeavours” obligation – whether vendor is liable under covenant for incomplete or defective work by builder – where covenant did not merely require compliance with physical description of the building according to approved plans
CONTRACTS – construction – whether good workmanship covenant merged on completion – absence of express statement that the covenant survived completion – primary obligation to convey title merged upon completion – nature of subject matter of secondary obligation as to good workmanship – where performance of covenant could not be investigated prior to completion – where occupation certificate is not determinative of performance
CONTRACTS – damages – whether lot owners can claim damages in respect of proportionate share of cost to rectify common property – where damage to
common property is infringement of lot owner’s proprietary interest in common property as equitable tenant in common – whether lot owners can recover
costs of rectification where works have not been undertaken
CONTRACTS – assignment – whether assignment of chose in action was effective – whether assignee had genuine, substantial pre-existing commercial interest in
the suit – whether claim is time barred where plaintiff substituted – where effect of substitution order under UCPR, r 6.32 placed substituted plaintiff in same
position as party replaced APPEAL – orders on appeal – building case – whether appropriate relief is remitter for retrial or reference out to referee – where reference out is the most efficient and timely option

Rialto Sports Pty Limited v Cancer Railto Sports Pty Limited CCA Estates Pty Limited; Davjul Holdings Pty Limited; Armmam Pty Limited [2022] NSWCA 146 (10 August 2022)

COSTS—Special circumstances—Whether established

The Owners Strata Plan No 79633 v Graorovska (No 2) [2022] NSWCATAP 245 (26 July 2022)

COSTS – application for costs against a non-party – Tribunal has power to order a non-party to pay costs – whether special circumstances exist – the evidence and
circumstances fail to demonstrate special circumstances warranting a costs order against the non-party

The Owners – Strata Plan No 79749 v Dunstan [2022] NSWCATAP 262 (9 August 2022)

COSTS – dispute concerning a strata scheme – parties agree that proceedings should be transferred to NSW Civil and Administrative Tribunal – whether order for
costs should be made against plaintiff – plaintiff not shown to have acted unreasonably – appropriate to make no order as to costs

Selkirk v The Owners – Strata Plan No. 2661 [2022] NSWSC 858 (29 June 2022)

LAND LAW – Strata title – Civil Penalty – contravention of Tribunal order – s 247A Strata Schemes Management Act 2015 – assessment of penalty – deterrence – relevant considerations – relevance of maximum penalty when assessing appropriate penalty – payment of penalty – whether penalty payable to applicant, the Crown or some other person – power of the Tribunal to direct to whom the penalty is to be paid

The Owners – Strata Plan No. 61285 v Taylor (No. 2) [2022] NSWCATCD 117 (9 September 2022)

COSTS – costs on appeal – whether special circumstances established

Scott-Young v The Owners – Strata Plan 77303 [2022] NSWCATAP 289 (7 September 2022)

APPEAL – Costs of discontinued appeal – whether special circumstances established pursuant to s 60(2) of the Civil and Administrative Tribunal Act 2013 (NSW)

Li v Kerollos Property Pty Limited ACN 162 903 335 [2022] NSWCATAP 307 (20 September 2022)

APPEALS — constructive failure to exercise jurisdiction APPEALS — Procedure — Time limits — Extension of time – application granted COSTS – appeal from exercise of discretion in finding special circumstances to make award for costs – appeal dismissed COSTS – application that the appellant pay the respondent’s costs of the appeal – application dismissed

Hill v The Owners – Strata Plan No 16519 [2022] NSWCATAP 234 (18 July 2022)

APPEAL – proceedings commenced in the Supreme Court prior to commencement of tribunal proceedings – whether cl5(7) of schedule 4 of the Civil and Administrative Tribunal Act precluded the tribunal from having jurisdiction to determine relevant issues – whether an issue for determination before the tribunal was the subject of dispute before the Supreme Court – whether there is a risk of concurrent and inconsistent findings being made in the tribunal and the Supreme Court.

Sunaust Properties Pty Ltd v The Owners – Strata Plan No 64807 [2022] NSWCATAP 246 (27 July 2022)

APPEAL – application for a stay – dismissal of application against some but not all respondents at first instance – power to stay conduct of proceeding at first
instance in light of that order – parties to appeal not properly identified by appellant – costs – whether “special circumstances warranting an award of costs”
within the meaning of s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) established

Silberstein v Strata Choice Pty Ltd [2022] NSWCATAP 249 (28 July 2022)

ADMINISTRATIVE LAW – NCAT Appeal – Leave to appeal – Whether the Appeal Panel erred in joining parties – Whether there was an injustice going beyond
what was reasonably arguable – Whether there is an issue of principle or a question of public importance – Appeal dismissed

Keevers v Sarraf Property Group Pty Ltd [2022] NSWSC 1017 (28 July 2022)

LAND LAW – Strata schemes – Recovery of unpaid contributions and interest

The Owners – Strata Plan No. 1813 v Keevers [2022] NSWCATCD 104 (6 July 2022)

APPEAL – Strata – Contributions to a special levy – power to alter contributions – ambit of order making power under s 87 and s 232(1) – effect of order varying
unit entitlement

Quo Warranto Pty Ltd v Goodman [2022] NSWCATAP 315 (30 September 2022)

LAND LAW – Strata title – By-laws – Noise – Floor coverings – Interference with the peaceful enjoyment of the owner or occupier of another lot – Objective test

Hogan v Stebnicki [2022] NSWCATCD 63 (01 June 2022)

LAND LAW – Strata Management – alleged unreasonable refusal of consent by lot owners to proposed amendment – pre-conditions to challenge of refusal – proper parties

GS & CS Holdings Pty Ltd v The Owners – Strata Plan No. 63227 [2022] NSWCATAP 206 (22 June 2022)

STRATA SCHEMES MANAGEMENT – obligation of owners corporation to maintain and repair common property – alleged unauthorised works agreed to be
common property – liability for later repairs

The Owners – Strata Plan No 63607 v Kinsella [2022] NSWCATAP 184 (6 June 2022)

LAND LAW – strata title – common property – two bylaws to obtain rights to exclusive use and enjoyment of common property – first proposal offered repairs and
maintenance – second proposal offered monetary compensation – other lot owners concerned about noise, loss of privacy, lack of compensation, floodgates
for applications – whether refusal of first proposal unreasonable under Strata Schemes Management Act 2015 (NSW), s 149(1) – Tribunal not required to weigh
interests in determining whether refusal unreasonable – other lot owners entitled to have regard to own interests and rely on experience and beliefs
LAND LAW – strata title – Strata Schemes Management Act 2015 (NSW), s 149(2) – s 149(2) considerations addressed to whether to order making of by-law – proponents’ rights and expectations not to be weighed against other lot owners’ interests COSTS – party/party – appeal from NCAT Appeal Panel – finding of special circumstances – no mandatory considerations – unsuccessful appeal and fact of legal representation permissible considerations – finding of complexity – Tribunal’s power to award costs absent special circumstances – Civil and Administrative Tribunal Act 2013 (NSW), ss 35, 60 – Civil and Administrative Tribunal Rules 2014 (NSW), rr 38 and 38A

Kaye v The Owners – Strata Plan No 4350 [2022] NSWSC 1386 (14 October 2022)

APPEALS – Standing of lot owners to bring appeal on behalf of Owners Corporation where strata manager appointed by Tribunal with plenary power

BUILDING AND CONSTRUCTION – where no valid development consent or construction certificate in relation to building works – whether defence of illegality available in relation to claim for breach of statutory duty under s 37 of the Design and Building Practitioners Act 2020 (NSW) – whether managing director and project
site supervisor of builder capable of being persons for the purposes of s 37 of that Act PRACTICE AND PROCEDURE – whether cross claimant should have leave to amend Cross-Claim List Statement – where cross-claimant seeks to introduce claim for breach of statutory duty under s 37 of the Design and Building Practitioners Act 2020 (NSW) – whether leave should be refused because of availability of defence of illegality – whether amendment should be disallowed against proposed individual cross-defendants because they are not persons for the purposes of s 37 of that Act – whether amendment should be disallowed on the basis of prejudice to the proposed cross-defendants

Boulus Constructions Pty Ltd v Warrumbungle Shire Council [2022] NSWSC 1368 (12 October 2022)

BUILDING AND CONSTRUCTION – Contract – Whether contract existed – Whether respondent engaged as either builder or supervisor – Alleged partly
written and partly oral contract – No contract in existence
BUILDING AND CONSTRUCTION – Defective work – Duty to mitigate loss – Whether appellants acted reasonably to mitigate loss

Krolczyk v Winner t as J Winner Building Services [2022] NSWCA 196 (05 October 2022

BUILDING AND CONSTRUCTION — Contract — Damages — Quantification — Quantification of damages for the rectification of defects — Where there is disagreement between expert witnesses as to quantification

Warburton v County Construction (NSW) Pty Ltd [2022] NSWSC 1281 (21 September 2022)

LAND LAW – possession of land – default under loan agreement and mortgage – where agreement reached after proceedings commenced for consent judgment to be held in escrow on conditions – where defendant breached conditions – plaintiff entitled to judgment for possession

Commonwealth Bank of Australia v Watts [2022] NSWSC 1291 (26 September 2022)

Aimaway Holding Pty Ltd v Sutherland Shire Council [2022] NSWLEC 1511 (20 September 2022)

ENCROACHMENT OF WALL AND FOOTING – conciliation conference – agreement between the parties – orders

Berry v The Owners Strata Plan 1621 [2022] NSWLEC 1507 (20 September 2022)

LAND LAW – Strata titles –Common Property – Maintenance and repair of common property–Claim by lot owner for compensation pursuant to s 106(5) Strata Schemes Management Act 2015 (NSW)

APPEAL – Procedural fairness – Treasurer of owners corporation refused leave to represent the owners corporation until he produced evidence of authority – Whether refusal of leave could have affected the outcome of the proceedings

The Owners – Strata Plan No 2341 v P & M Sachs Pty Ltd [2022] NSWCATAP 304 (19 September 2022)

LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – s 50 – Quiet enjoyment – Whether service of retaliatory termination notice was a breach of quiet enjoyment

LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – s 115 – Retaliatory eviction – Whether notice of termination given after tenant resisted a rent increase was retaliatory

LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – Compensation for breach of tenancy agreement – Damages not recoverable in respect of wages lost by third party who provided assistance voluntarily

Yuwono v Koh [2022] NSWCATAP 306 (19 September 2022)

LAND LAW – strata title – leasehold development scheme under Strata Schemes Development Act 2015 – building subdivision includes part strata parcels – building management committee appoints managing agent – building’s strata management statement and constituent strata scheme by-laws require constituent owners’ corporations to “appoint and retain” building managing agent as strata managing agent for constituent strata schemes – validity – uncertainty – ultra vires – inconsistency with Strata Schemes Management Act 2015

Walker Corporation Pty Ltd v The Owners – Strata Plan No 61618 (16 September 2022)

TREES (DISPUTES BETWEEN NEIGHBOURS) –trees causing damage to wall and driveway – whether damage to infrastructure is caused by the trees – compensation for damage – consideration of privacy.

THE OWNERS SP No 19443 v THE OWNERS SP No 2554 – [2022] NSWLEC 1475 (1 June 2022)

LAND LAW – Strata title – Civil Penalty – contravention of Tribunal order – s 247A Strata Schemes Management Act 2015 – assessment of penalty – deterrence – relevant considerations – relevance of maximum penalty when assessing appropriate penalty – payment of penalty – whether penalty payable to applicant, the Crown or some other person – power of the Tribunal to direct to whom the penalty is to be paid

The Owners – Strata Plan No. 61285 v Taylor (No. 2) [2022] NSWCATCD 117 (09 September 2022)

VENDOR AND PURCHASER – Put and call option deeds – block of 10 units sold in one line – interdependence of contracts – single conveyancer authorised to liaise with buyer and give permissions and receive notices under deeds – option period extended – initial buyer nominates corporate entity of which vendors’ agent is sole director and shareholder unbeknownst to vendors – but known to vendors’ conveyancer – contracts exchanged and notices to complete issued – dispute regarding notices and termination and ability of buyer to complete

VENDOR AND PURCHASER – Principles regarding electronic conveyancing – PEXA – co-operation requirements – principles regarding completion and tender of performance in electronic settlement – nomination of a particular hour of the day for completion – construed as a matter of convenience – whole day available to complete

VENDOR AND PURCHASER – duty of care owed by a conveyancer ordinarily excludes financial and commercial advice – agency obligations of conveyancer

CONTRACTS – Conveyancing – Principles regarding notices to complete – Making time of the essence – Requirements of form and content of notices – Construction of notices to complete – Equitable context to requirements for a valid notice – Whether failure to intimate a right to terminate invalidates notice

CONTRACTS – Notices to complete – whether purported nomination of place of settlement other than completion in electronic workspace invalidates notice

EQUITY – Equitable remedies – Differences as between common law and equity as to time stipulations – Whether vendors waved essentiality of time or elected to affirm the contracts

EQUITY – Equitable remedies – Specific performance – Whether vendors ready, willing and able to complete – Requirements of readiness in electronic conveyancing and workspace – Whether alleged late provision of settlement adjustment details precludes readiness – Dispute regarding default interest claim – Whether vendors’ interest in preferring to sell elsewhere demonstrates lack of willingness to complete and precludes entitlement to terminate

EQUITY – Equitable remedies – Defences to specific performance – Whether purchaser had available finance – Dispute regarding whether purchaser had unconditional or sufficient finance – Whether purchaser ready, willing and able to complete

AGENTS – fiduciary duties of disclosure – duration of obligations of agents

CONTRACTS – Illegality – Contract entered into in contravention of s 49 Property Stock and Business Agents Act 2002 (NSW) – Whether legislation has effect of making void or voidable contracts of sale

EQUITY – Equitable remedies – Defences to specific performance  – Unclean hands – different effects of doctrine of illegality and maxim of unclean hands – Whether unclean hands permanently disbars equitable relief – “washing one’s hands” – “Washing” by imposing terms on specific performance

EQUITY – Equitable remedies – Defences to specific performance – Delay

EVIDENCE – Admissibility of evidence of what a party would have done in a hypothetical situation

INTERPRETATION – What use can be made of extrinsic materials – Second Reading Speeches

D Capital 2 Pty Ltd v Western [2022] NSWSC 1064 (12 August 2022)

LEASES AND TENANCIES – Where residential premises are part of strata premises – Tenant’s obligation in relation to common property of strata premisesAPPEALS – Standing of lot owners to bring appeal on behalf of Owners Corporation where strata manager appointed by Tribunal with plenary powers

Nam v Zarb [2022] NSWCATCD 87 (15 June 2022)

LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – Rights and obligations of landlords and tenants – Rental bond

Wu v Liu [2022] NSWCATCD 90 (15 June 2022)

LAND LAW — Strata title — Obligations of owners and occupiers – Whether the respondent has created a nuisance

The Owners – Strata Plan No. 58615 v Almin [2022] NSWCATCD 91 (08 June 2022)

REAL PROPERTY – Strata titles – Section 130, Strata Schemes Management Act 2015 (NSW) – Personal property
REAL PROPERTY – Strata titles – Special by-laws – Proper construction

Sultan v The Owners – Strata Plan No.4382 [2022] NSWCATCD 96 (29 June 2022)

LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – rights and obligations of landlords and tenants – maintenance of premises in a reasonable state of repair
LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – remedies – order for repair – excessive rent order – compensation for disappointment and distress

Ramjan v Tang [2022] NSWCATCD 98 (30 June 2022)

CIVIL PROCEDURE — Hearings — Adjournment — Relevant factors
CIVIL PROCEDURE — Hearings — Procedural fairness – Bias — Actual bias
CIVIL PROCEDURE — Hearings — Procedural fairness – Apprehended bias
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — NSW Civil and Administrative Tribunal — Jurisdiction and power
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Termination — By landlord – expiry of fixed term
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Termination — Notices – defect in the manner of service

Lekhwar v Singh [2022] NSWCATCD 108 (24 June 2022)

BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – Statutory warranty – Due care and skill – Standing of Lot Owners to bring an application under the Home Building Act 1989 against a builder engaged by the Owners Corporation in relation to the repair of common property in a Strata Scheme

Fitzgerald v Waterstop Solutions (NSW) Pty Ltd [2022] NSWCATCD 84 (20 June 2022)

BUILDING AND CONSTRUCTION – Joinder of party after expiration of limitation period – Date when claim lodged – Whether Tribunal has jurisdiction

The Owners – Strata Plan No. 90347 v President Properties Pty Ltd [2022] NSWCATCD 99 (30 June 2022)

PRACTICE AND PROCEDURE – proposed amendment to Technology and Construction List Statement – whether amendment will introduce new causes of action under the Home Building Act 1989 (NSW)

BUILDING AND CONSTRUCTION – residential building work – whether separate causes of action for each breach of the statutory warranties under the Home Building Act 1989 (NSW) – whether single cause of action for all breaches of those statutory warranties or for each individual statutory warranty – application of Onerati principle

STATUTORY CONSTRUCTION – construction of statutory warranties under the Home Building Act 1989 (NSW) – whether separate cause of action for each breach of the statutory warranties under the Home Building Act 1989 (NSW) – whether single cause of action for all breaches of those statutory warranties or for each individual statutory warranty – application of Onerati principle

The Owners – Strata Plan No 90018 v Parkview Constructions Pty Ltd [2022] NSWSC 1123 (24 August 2022)

LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – fixed term lease for 52 weeks – obligation of the tenants to pay rent where landlord accepts return of vacant possession – abandonment by the tenants – compensation – obligation on the landlord to mitigate the loss – whether the Tribunal erred in failing to apply correct principles

Hill v Venkatesan [2022] NSWCATAP 278 (24 August 2022)

LAND LAW — Strata title — By-laws – Whether installation of structure permitted by by-law

The Owners – Strata Plan No 47383 v McCullum [2022] NSWCATAP 283 (31 August 2022)

LAND LAW – Strata title – Whether duty to repair and maintain common property was breached – Whether works authorised by common property rights by-law

Keyworth v The Owners – Strata Plan No. 45081 [2022] NSWCATCD 75 (06 May 2022)

LEASES AND TENANCIES — Residential (Land Lease) Communities Act 2013 (NSW) — Jurisdiction of Tribunal — Development lots in a community scheme established under the Community Land Development Act 1989 (NSW) do not constitute a community under the Residential (Land Lease) Communities Act even when leased to residents under agreements explicitly described as site agreements under that Act

Bunce v Antegra Management Leppington Pty Ltd [2022] NSWCATCD 82 (12 April 2022)

LAND LAW — Strata title — Keeping of animals — Where approval refused — Whether refusal unreasonable — Whether by-law prohibits keeping of more than one animal — Whether keeping of animal interferes with other occupant’s use and enjoyment

Bruce v The Owners – Strata Plan No. 98803 [2022] NSWCATCD 83 (11 April 2022)

BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Contract — Defects — Major defect — Assessment of damages

BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Defences — s 18F Home Building Act 1989 (NSW)

Fisher v N. Phillips and M. Phillips t-as Arise Building Services [2022] NSWCATCD 80 (25 May 2022)

BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Statutory warranty — Proceedings for breach — Where the plaintiff owners corporation seeks a range of relief relating to allegedly combustible cladding on a residential unit block — Where the parties seek the determination of several separate questions — Whether the cladding complied with the Building Code of Australia with respect to combustibility — Whether any statutory warranties were breached in relation to the cladding — Whether the plaintiff suffered assessable loss recoverable against the defendants.

Strata Plan 92450 v JKN Para 1 Pty Ltd & Anor [2022] NSWSC 958 (19 July 2022)

STRATA TITLE – common property by law – Unauthorised works – whether unauthorised works by lot owners altering common property should be ordered to be removed

The Owners – Strata Plan No 20427 v A Halliwell Nominees Pty Ltd [2022] NSWCATAP 225 (08 July 2022)

STRATA TITLE – Application for costs – Special circumstances – Claim that has no tenable basis in fact or law – Case that is unarguable

The Owners – Strata Plan No. 97383 v CLSM Pty Ltd [2022] NSWCATCD 59 (02 May 2022)

LAND LAW — Strata title — Strata managing agent – appointment under s 237 of the Strata Schemes Management Act 2015 (NSW) – dispute regarding
which strata managing agent should be appointed – factors relevant to determining whether a particular strata managing agent should be appointed

Pidgeon v Nagle [2022] NSWCATCD 61 (04 May 2022)

LAND LAW — Strata title — By-laws — By-law levying on contributions contrary to s 83(2) — Ultra vires — Declaration of invalidity

Ekg Pastries Pty Ltd v The Owners – Strata Plan No. 87145 [2022] NSWCATCD 65 (01 June 2022)

LAND LAW — Strata title — Appointment of compulsory strata managing agent — Order to supply information or documents

Chen v The Owners – Strata Plan No. 7262 [2022] NSWCATCD 58 (02 May 2022)

STRATA TITLE – awarding damages to a lot owner for breach of the statutory duty in s 106(1) of the Strata Schemes Management Act 2015 – duty to properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation – – whether the Tribunal had power under s232 of the SSMA to order the owners corporation to rectify damage to lot owner’s property – whether breach of s106(1) established – whether works to common property and repair to lot property can be order in the absence of an occupation certificate under the Environmental Planning and Assessment Act 1979 (NSW).

APPEAL – question of law – adequacy of reasons

The Owners – Strata Plan No 77559 v Touma; Touma v The Owners – Strata Plan No 77559 [2022] NSWCATAP 186 (07 June 2022)

LAND LAW – Strata titles – application for the appointment of a compulsory strata manager under s 237 of the Strata Titles Management Act 2015 (NSW) (SMA) – alleged failure by the owners corporation to comply with consent orders made in earlier proceedings in respect of rectification work to be done for the benefit of a lot owner, including to raise special levies – alleged breach by the owners corporation of s 106 of the SMA – costs order made against the lot owner in dismissing his proceedings against the owners corporation on the basis he was the unsuccessful party.

APPEAL – alleged errors of law, principally, by the Tribunal failing to respond to substantial and significant submissions and supporting evidence – whether Rule 38 of the Civil and Administrative Rules 2014 (NSW) was applicable to the proceedings at first instance and, hence, on appeal by reason of Rule 38A.

Marinko v The Owners – Strata Plan No 7596 [2022] NSWCATAP 187 (7 June 2022)

LEASES AND TENANCIES — retail leases — unconscionable and other misconduct alleged against the lessor – no errors in findings of fact – no question of principle

Freeman-Vagg v Oldstream Pty Ltd [2022] NSWCATAP 198 (15 June 2022)

Nuisance – Consequences and Remedies/ What constitutes

STRATA MANAGEMENT – smoking – claim of breach of Strata Schemes Management Act 2013 (NSW) s 153 – re-determination – onus of proof

Newport v Pittman [2022] NSWCATAP 150 (10 May 2022)

Lots – Damage to

STRATA MANAGEMENT – loss of lot owner as a result of failure of owners corporation to repair water leaks – whether lot owner’s claim was statute barred – Strata Schemes Management Act 2015(NSW) s 106(1), (2), (4), (5), (6).

Tezel v The Owners – Strata Plan No 74232 [2022] NSWCATAP 149 (10 May 2022)

Dispute Resolution Processes – Summary Dismissal/Summary Judgment/Striking Out Proceeding

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — No reasonable cause of action disclosed — where plaintiff described grievances without reference to cause of action known to law — where proceedings dismissed

CIVIL PROCEDURE — Parties — Removal of parties — where potential claim against company — where defendant joined was director of company — separate legal personalities — where defendant removed from proceedings

Qasim v Mitchell [2022] NSWSC 698 (30 May 2022)

Dispute Resolution Processes – Procedural Fairness and Natural Justice

LAND LAW—Strata title—Conduct of hearing—Excessive judicial intervention—Denial of procedural fairness—Applicable principles

The Owners-Strata Plan No 79633 v Graorovska [2022] NSWCATAP 152 (11 May 2022)

Dispute Resolution Processes – Awarding Costs

COSTS — party/party — general rule that costs follow the event — Court orders termination of strata scheme and winding-up of owners corporation — numerous appearances in Supreme Court and New South Wales Civil and Administrative Tribunal — parties achieve compromise in fact with assistance of Court and compulsory manager — application of principles in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6— no order as to costs

Brenchley v The Owners – Strata Plan No 80609 [2022] NSWSC 646 (23 May 2022)

Dispute Resolution Processes – Appeals

APPEAL – procedural fairness – insufficient time given for party to file submission in reply on issue of costs – appeal allowed – costs issue to be re-determined by Appeal Panel

de Tarle v Newland [2022] NSWCATAP 148 (9 May 2022)

By-Laws – Validity

LAND LAW – Strata schemes – Proposed common property rights by-law – Whether unreasonably refused

Kaye v The Owners – SP 4350 [2022] NSWCATAP 173 (25 May 2022)

By-Laws – Characteristics of – Validity

LAND LAW—Strata title—Whether common property rights by-law unreasonably refused—-Whether Tribunal has power to make certain money orders under s 232of the Strata Schemes Management Act 2015 (NSW)—Whether by-laws of strata scheme harsh, unconscionable or oppressive—Adequacy of reasons—Consideration of applicable principles

Coscuez International Pty Ltd v The Owners-Strata Plan No 46433 [2022] NSWCATAP 147 (9 May 2022)

Body Corporate Manager – Appointment and Delegation

APPEAL – Strata schemes – claim for appointment of compulsory strata manager resulting from breaches by owners corporation in the administration of a strata scheme – whether Tribunal erred in its discretion to decline to appoint compulsory strata manager.

Ghosn v The Owners – Strata Plan No 87837 [2022] NSWCATAP 175 (26 May 2022)

Body Corporate – Maintenance and Repair/Powers, Authorities, Duties and Functions – Common Property/Repairs

LAND LAW – strata schemes – duty to repair common property – scope of duty – remedial orders – whether excessive

The Owners – Strata Plan No 33368 v Gittins [2022] NSWCATAP 130 (2 May 2022)

Body Corporate Committee/Council – Powers, authorities, duties and functions

LAND LAW – Strata title – Civil penalty proceedings – authority to commence proceedings – functions of strata committee – contravention of Tribunal order under Strata Schemes Management Act – availability of collateral challenge to primary order in proceedings for the imposition of a civil penalty

The Owners – Strata Plan No. 61285 v Taylor [2022] NSWCATCD 48 (19 May 2022)

Lot Entitlements – Adjustment/Allocations

LAND LAW – strata title – application under s 236 of the Strata Schemes Management Act 2015 (NSW) for an order allocating unit entitlements among the strata scheme lots – consideration of factors other than market values of the lots.

The Owners Strata Plan 675 v York and Edwards [2022] NSWCATAP 171 (24 May 2022

BUILDING AND CONSTRUCTION – Design and Building Practitioners Act 2020 (NSW) – proper construction of definition of “construction work” – proper construction of “otherwise having substantive control over the carrying out of any work” – proper construction of s 37(1) – whether “person” includes the “owner of the land in relation to which the construction work is carried out”

The Owners – Strata Plan No 84674 v Pafburn Pty Ltd [2022] NSWSC 659 (24 May 2022)

LAND LAW — Strata title — Appointment of compulsory strata manager — Whether grounds for compulsory appointment established

Larsen v The Owners – Strata Plan No. 3573 [2022] NSWCATCD 43 (03 March 2022)

LEASES AND TENANCIES — Rent reduction — No access to balcony

Campbell v Fazzolari [2022] NSWCATCD 44 (07 March 2022)

BUILDING AND CONSTRUCTION – malicious damage to property – action for trespass – standing of plaintiff to bring action for trespass – whether plaintiff had exclusive possession of the property – whether plaintiff entitled to recover loss for damage to the reversion – measure of damages for damage to the reversion – whether second defendant caused the malicious damage – whether second defendant carried out construction work for the purpose of the Design and Building Practitioners Act 2020 (NSW) – whether second defendant acted in breach of his statutory duty of care under that Act in relation to that construction work

Goodwin Street Developments Pty Ltd atf Jesmond Unit Trust v DSD Builders Pty Ltd (in liq) [2022] NSWSC 624 (19 May 2022)

LAND LAW – Strata title – Civil penalty proceedings – authority to commence proceedings – functions of strata committee – contravention of Tribunal order under Strata Schemes Management Act – availability of collateral challenge to primary order in proceedings for the imposition of a civil penalty

The Owners – Strata Plan No. 61285 v Taylor [2022] NSWCATCD 48 (19 May 2022)

REAL PROPERTY – caravan park with long-term cabin sites subject to company title – claim by purchasers of shares to equitable interests in cabin sites as well – whether purchase contracts included interests in land – specific performance – resulting trust – proprietary estoppel

CORPORATIONS – oppression – company owning caravan park with long-term cabin sites subject to company title – ownership company’s finances and operations managed by separate company controlled by directors – ownership company placed in administration by directors following contested application by shareholders for access to company documents – land sold to another company controlled by directors following adoption of deed of company arrangement proposed by directors – whether oppressive conduct by directors – relief

CONSUMER PROTECTION – misleading or deceptive conduct – unconscionable conduct – undue harassment or coercion – conduct “in trade or commerce” – contravention – loss and damage – purchase of company title shares in caravan park with long-term cabin sites – disappointment and distress

CORPORATIONS – voluntary administration – caravan park with long-term cabin sites subject to company title – claim by shareholders against administrators for compensation for loss arising out of sale of land pursuant to deed of company arrangement – whether administrators owed common law duty of care to shareholders – whether administrators negligent in discharge of their duties – causation – Insolvency Practice Schedule s 90-15 – whether unconscionable conduct by administrators – whether administrators “involved in” oppressive conduct by directors

McMillan v Coolah Home Base Pty Ltd (No 4) [2022] NSWSC 584 (13 May 2022)

LAND LAW — Strata title — Common property — Maintenance and repair of common property

Rook v The Owners – Strata Plan No. 32865 [2022] NSWCATCD 38 (24 March 2022)

LAND LAW — Strata title — Alteration of common property — Minor renovations — Removal of committee member

Stocker v The Owners – Strata Plan No. 6622 [2022] NSWCATCD 31 (25 March 2022)

TAXES AND DUTIES — Land tax — Conveyancing — Clearance certificate.

LAND LAW — Conveyancing — Contract for sale — Settlement requirements.

CONTRACTS — Termination — Repudiation of contract — where the vendor failed to provide a land tax certificate but sought completion — where the purchaser failed to respond to communications by the vendor to advance completion — where the vendor terminated the contract on the basis of the purchaser’s repudiation — where the purchaser denies the vendor’s right of termination and subsequently terminates the contract on the basis of the vendor’s repudiation — whether purchaser or vendor repudiated the contract

Hong v Gui [2022] NSWSC 431 (12 April 2022)

LAND LAW—Strata schemes—Resolution passed at general meeting—Discretion to invalidate—Applicable principles

Harris v The Owners-Strata Plan No 34056 [2022] NSWCATAP 111 (13 April 2022)

LAND LAW — strata title — owners corporation — meetings of owners corporation – order sought under s 24 of the Strata Schemes Management Act invalidating resolution of and election held by owners corporation – time at which the affected party must establish he or she was “adversely affected” within the meaning of that term in s 24

Chua v The Owners – Strata Plan No 36156 [2022] NSWCATAP 48 (18 February 2022)

CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Frivolous or vexatious proceedings – No reasonable cause of action disclosed – Want of due despatch

Sha v Strata Plus Pty Ltd [2022] NSWCATCD 8 (2 February 2022)

STRATA TITLES- access to CCTV footage – application of s 180 and 182 of the Strata Schemes Management Act 2015 – jurisdiction of the Appeal Panel to give an advisory opinion or grant declaratory relief

Benoit De Tarle v The Owners Corporation Strata Plan 576 [2022] NSWCATAP 77 (22 March 2022)

COSTS – Civil and Administrative Tribunal – whether special circumstances exist

Martire v The Owners – Strata Plan No. 42159 (No 2) [2022] NSWCATCD 3 (9 February 2022)

PRACTICE AND PROCEDURE – Application for costs – special circumstances

The Owners – SP No 91684 v Liu (No 2); The Owners – SP No 90189 v Liu (No 2) [2022] NSWCATAP 74 (18 March 2022)

APPEALS – costs of respondent where appeal withdrawn

Grasso v The Owners Strata Plan No. 52399 [2022] NSWCATAP 91 (30 March 2022)

APPEAL – stay pending appeal – concurrent proceedings in Supreme Court – strata scheme

Sunaust Properties Pty Ltd v The Owners – Strata Plan No 64807 [2022] NSWCATAP 55 (25 February 2022)

COSTS – appeal out of time – no special circumstances warranting an award of costs.

The Owners – Strata Plan No. 36965 v Alexander (No. 2) [2022] NSWCATAP 81 (25 March 2022)

LAND LAW – Strata titles – Strata Schemes Management Act – breach of duty to repair and maintain common property – claim for damages – time to commence proceedings – first aware of the loss suffered – levy of owners in respect of damages award and costs payable to successful lot owner by an unsuccessful owners corporation – power of Tribunal to make an order to adjust levies to exclude successful lot owner from obligation to contribute

The Owners – Strata Plan No 62713 v Liberant [2022] NSWCATAP 80 (24 March 2022)

STRATA TITLES LAW — Strata schemes — Conduct at extraordinary general meeting — Order sought for removal of strata committee member from office – Order sough to give effect to agreement arising out of mediation session

Lockrey v Rosewall [2022] NSWCATCD 27 (23 February 2022)

REAL PROPERTY – Torrens title – caveats – application to remove caveats – Real Property Act 1900, s 74MA(2) – real property development joint venture conducted through trustee company as trustee of a unit trust – plaintiff a 50% interest holder in the units in the unit trust – agreement to distribute the profits in specie in the form of lots of the development – distribution commenced but not completed – building under development the subject of defect proceedings – trust faced with unexpected external liabilities – further distribution suspended but plaintiff’s permitted to mortgage undistributed lots – freezing orders made by consent against lots to be distributed to second defendant – lots distributed to the third defendant – caveats placed on all lots respect parties – plaintiff seeks removal of caveats to enable distribution – whether caveats bad in form – what if any ancillary relief should be granted if caveats are removed.

Garawin Pty Ltd v 1A Eden Pty Ltd [2022] NSWSC 333 (25 March 2022)

REAL PROPERTY – securities – rights of a subsequent encumbrancer as against a prior encumbrancer – rights to enforce rights and equities of mortgagor against mortgagee – where plaintiff held an equitable charge over the property – where defendant held a registered mortgage over the property – whether the principle that a subsequent mortgagee can enforce the mortgagor’s rights or equities against a prior mortgagee applies in the case of an equitable charge and a registered mortgage – plaintiff held to have standing to enforce mortgagor’s rights and equities against the defendant

MORTGAGES – equity of redemption – clogs on the equity of redemption – where mortgage contained an option for the mortgagee to purchase the mortgaged property following failure of mortgagor to repay – whether the option to purchase constituted a clog on the mortgagor’s equity of redemption – whether the option to purchase was penal in nature – whether the option to purchase was unfair and unconscionable

Yang Bai v Watson Elite Pty Ltd [2022] NSWSC 318 (23 March 2022)

CIVIL PROCEDURE – notice of motion – joinder of defendant – application granted – costs

Application of Qasim [2022] NSWSC 302 (16 March 2022)

LAND LAW – Strata title – Whether the owners corporation breached the duty to properly maintain and keep in a state of good and serviceable repair the common property – Whether the owners corporation is liable to carry out remedial works – Whether the owners corporation is liable for damages for loss of rent

King as trustee for Cascade Trust v The Owners – Strata Plan No. 19410 [2022] NSWCATCD 24 (24 January 2022)

LAND LAW – Strata title – Building manager – Whether caretaker agreement should be terminated -Whether saving provision applies – Whether ancillary orders should be made

The Owners – Strata Plan No. 64807 v Sunaust Properties Pty Ltd [2022] NSWCATCD 20 (17 January 2022)

LAND LAW — Strata title — Breach of owners corporation’s obligation to repair and maintain common property — Measure of damages for breach — Mitigation

Gregg v The Owners -Strata Plan No. 80881 [2022] NSWCATCD 17 (12 January 2022)

APPEAL – NCAT – leave to appeal – principles – appeal on question of law, with leave – leave refused – no issue of principle or of general importance – no error
of law

ADMINISTRATIVE LAW – jurisdiction of NCAT – strata titles – broad jurisdiction – importance of finality – alleged denial of procedural fairness – none disclosed

STATUTORY INTERPRETATION – Strata Schemes Management Act 2015 (NSW) – common property – alteration of definition of boundary between lots –
common property on upper surface of floor, inner surface of wall and under surface of ceiling – cosmetic work still on common property – rights and obligations
of owners corporation

Huang v The Owners Strata Plan 7632 tas The Owners Strata Plan 7632 [2022] NSWSC 194 (2 March 2022)

LAND LAW – Strata Schemes Management Act – validity of by-law – harsh, unconscionable or oppressive – without power – severability

TThe Owners – SP No 91684 v Liu; The Owners – SP No 90189 v Liu [2022] NSWCATAP 1 (5 January 2022)

APPEALS – Standing of lot owners to bring appeal on behalf of Owners Corporation where strata manager appointed by Tribunal with plenary powers

The Owners – Strata Plan 2010 v Kahn [2022] NSWCATAP 9 (13 January 2022)

APPEALS – Standing of lot owners to bring appeal on behalf of Owners Corporation where strata manager appointed by Tribunal with plenary powersAPPEALS – Standing of lot owners to bring appeal on behalf of Owners Corporation where strata manager appointed by Tribunal with plenary powersCONTRACTS—Contract for the sale of land — Construction — Purchase of strata title unit by description — Building as constructed manifestly
different from draft strata plan attached to contract — Purchaser entitled to rescind and return of deposit

Jin Yi Construction Pty Ltd v Romeciti Eastwood Pty Ltd [2022] NSWSC 56 (4 February 2022)

APPEALS – Land law – Strata titles – Owners corporation – Duty to repair common property – Whether duty breached – Whether decision fair and equitable

Ashlin v The Owners-Strata Plan No 50705 [2021] NSWCATAP 413 (21 December 2021

APPEALS – appeal lodged out of time – no evidence to provide a proper explanation for the delay

Teixeira v The Owners SP No 37534 [2021] NSWCATAP 366 (17 November 2021)

APPEAL – failure by appellant to provide recording and transcript of proceedings from which appeal is brought

STRATA TITLES LAW – exclusive use and enjoyment by appellant of area created by by-law – by-law provided for appellant to be responsible to keep area in good repair – held appellant responsible for cost of maintaining the area.

Sorbara v The Owners – Strata Plan 75666 [2021] NSWCATAP 369 (18 November 2021)

APPEAL; extension of time for late lodgement – appellants prospects of success – appeal against dismissal of costs application where appellant had mixed success.

Shousha v Owners Strata Plan 2657 [2021] NSWCATAP 405 (15 December 2021)

LAND LAW – Strata Scheme – subdivision and transfer of common property – agreement to transfer – common property – agreement to grant of exclusive use rights – enforceability of agreement – certificate issued under Strata Schemes Development Act – conclusive evidence – when certificate operates – power of
Tribunal to determine dispute concerning transfer of common property – power of Tribunal to make orders for the registration of an exclusive use by-law.
LAND LAW – Strata schemes –power of the Tribunal to make order under the Strata Schemes Management Act excluding a successful lot owner from being levied
in respect of an award of damages and costs – operation of ss 90 and 104 of the Strata Schemes Management Act – scope of power under s 232 of the
Strata Schemes Management Act.

The Owners Strata Plan No 74698 v Jacinta Investments Pty Ltd [2021] NSWCATAP 387 (30 November 2021)

PRACTICE AND PROCEDURE – Strata Schemes Management Act – Penalty application – permissibility of seeking multiple penalties for breach of different by-laws in one application – subsequent proceedings duplicating earlier application – dismissal as abuse of process under s 55(1)(b) of the Civil and Administrative Tribunal Act

The Owners – Strata Plan No. 21367 v Letchford [2021] NSWCATCD 112 (9 November 2021)

LAND LAW — Strata schemes — Appointment of compulsory strata manager — Whether grounds for compulsory appointment established

Maple v The Owners – Strata Plan No. 8950 [2021] NSWCATCD 108 (19 November 2021)

LAND LAW — Strata title — Repair and maintain common property – Standing of applicant

Wu v The Owners – Strata Plan No. 80611 [2021] NSWCATCD 109 (24 November 2021)

LAND LAW – Strata Schemes Management Act – whether dog is an assistance animal – requirements for training – whether Federal matter arises- extension of
time to lodge appeal – relevant principles.

The Owners-Strata Plan 36965 v Alexander [2021] NSWCATAP 407 (15 December 2021)

APPEALS – Land law – Strata titles – Owners corporation – Duty to repair common property – Whether duty breached – Whether decision fair and equitable

Ashlin v The Owners-Strata Plan No 50705 [2021] NSWCATAP 413 (21 December 2021

RETAIL LEASES – Mitigation of loss

Pocket Pizza v Melani; Melani v Pocket Pizza [2021] NSWCATCD 107 (12 August 2021)

LAND LAW – Strata title – Challenges to decisions of strata committee – Appointment of compulsory strata managing agent

Velastegui v Chan [2021] NSWCATCD 98 (06 September 2021)

LAND LAW – Strata title – Common property – whether awning over roof terrace was common property – Common property memorandum – Common property rights by-law requires lot owner to repair and maintain common property

Worrall v The Owners – Strata Plan No. 43357 [2021] NSWCATCD 99 (16 September 2021)

BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Residential building work — contractual breach — Delay

Balogh v Cardno (NSW Act) Pty Ltd [2021] NSWCATCD 102 (15 October 2021)

LAND LAW – Strata title – Maintenance and repair of common property – Access order – Work order – Consideration of reasonable scope of works

The Owners – Strata Plan No 79633 v Graorovska; Graorovska v The Owners – Strata Plan No 79633 [2021] NSWCATCD 103 (29 October 2021

LAND LAW — Strata title — Consent for installation of security cameras on common property— Interference in the reasonable use of a lot or common property

Stojiljkovic v Whittle [2021] NSWCATCD 97 (21 September 2021)

APPEAL – consumer contract – home building – unlicensed works – no issue of principle.

Woolaston t as AAA Z Prop Maintenance v Robertson [2021] NSWCATAP 382 (25 November 2021)

CORPORATIONS — Contracts — Formalities — Statutory assumptions — Whether documents were properly executed to bind the defendant company — Where the plaintiffs argued that they were entitled to rely upon the assumptions in s 129 of the Corporations Act with respect to the purported proper execution of documents by two directors of the defendant — Where the apparent signatures of the two directors had been forged and every apparent communication between the plaintiffs, their agent and the defendant had been fraudulently undertaken by a person who had no authority to act in any way on behalf of the defendant — Whether the plaintiffs had dealings with the defendant for the purpose of s 128 of the Act — Where the Court found that the plaintiffs were not entitled to rely on the assumptions in s 129 because the plaintiffs had no dealings with the defendant — Where the Court held that the plaintiffs have failed to establish that the defendant is precluded from denying that it is bound by the documents

EQUITY — Equitable interests in property — Priority disputes — Earlier legal interest — Where the plaintiffs claimed that they had an equitable interest in property in circumstances where their registered mortgage did not on its proper construction and in the events which had happened secure the advance made by the plaintiffs — Where the plaintiffs’ interest in the defendant’s property was created by the fraud of a third party — Where the plaintiffs argued that the defendant’s conduct disentitled it from asserting its priority as the registered proprietor of the property over the plaintiffs’ equitable interest — Whether the earlier legal interest of the defendant would lose its priority to the later equitable interest of the plaintiffs — Where the Court found that the plaintiffs have not established that the defendant lost its entitlement to priority as the registered proprietor LAND LAW — Torrens title — Compensation for loss of interest in land — Torrens assurance fund — Where the plaintiffs claimed that, in the event the Court found that the registered mortgage was not effective to secure the amount advanced and that their later equitable interest did not have priority over the defendant’s legal interest, they are entitled to be paid compensation from the Torrens assurance fund on the basis of s 129(1)(e) of the Real Property Act — Whether the loss or damage that the plaintiffs would suffer would be as a result of the operation of the Act — Where the Registrar-General submitted that the plaintiffs are not entitled to compensation because the loss or damage would arise from the plaintiffs conduct rather than as a result of the operation of the Act — Where the plaintiffs argued that the Court should conclude that the plaintiffs will suffer loss as a result of fraud in that they will be deprived of an estate or interest in the property as a consequence of fraud — Where the Court found that the loss or damage that the plaintiffs will suffer is not as a result of the Act — Where the Court held that the plaintiffs’ claim for compensation from the Torrens assurance fund must be dismissed

LAND LAW — Torrens title — Exceptions to indefeasibility — Fraud — Where the plaintiffs claimed that they had a registered mortgage over the defendant’s property — Where the registered mortgage was procured by the fraud of a third party — Whether the plaintiffs’ registered mortgage was indefeasible — Where the Court found that the mortgage in effect did not secure any money — Where the Court held that the plaintiffs’ registered mortgage was indefeasible but that because it secured nothing, the defendant

Wassell v Ken Carr Bobcat and Tipper Hire Pty Ltd [2021] NSWSC 1415 (03 November 2021)

ESTOPPEL – proprietary estoppel – encouragement – nature of promise – strata title – promise of easement – whether representation sufficiently clear – where representation made at general meeting – where representation did not define the interest in property the representee was expected to receive – where further documentation was required to be executed to give effect to the representation

ESTOPPEL – proprietary estoppel – encouragement – detrimental reliance – strata title – promise of easement – whether reliance was that of the owners corporation – Strata Schemes Management Act 1996 (NSW) s 21(2) – Strata Schemes Management Act 2015 (NSW) ss 8, 254

ESTOPPEL – proprietary estoppel – encouragement – detrimental reliance – strata title – promise of easement – whether the evidence indicated that the representation was such that the conduct of the lot holders was sufficiently influenced by the representation

Trentelman v The Owners – Strata Plan No 76700 [2021] NSWCA 242 (13 October 2021)

COSTS – no question of principle

The Owners – Strata Plan No 76700 v Trentelman (No 2) [2021] NSWCATAP 268 (10 September 2021)

APPEAL-NCAT-costs –special circumstances-nature and complexity of proceedings.

Foong v Scutella [2021] NSWCATAP 294 (29 September 2021)

COSTS – Whether special circumstances existed – Costs where appeal is withdrawn without a hearing on the merits

Brenchley v Clissold [2021] NSWCATAP 319 (20 October 2021)

APPEAL – failure to bring originating application within a reasonable time – failure of Tribunal to consider arguments not put to it where litigant self-represented –
matters raised on appeal not raised before Tribunal at first instance

Taylor v The Owners SP No 61285 [2021] NSWCATAP 270 (10 September 2021)

Strata and community schemes – duty of owners corporation to maintain and repair common property – reinstatement duty in respect of damage to or removal of lot property in course of access to fulfil duty in respect of common property – costs protection for successful lot owners under SSMA ss 90, 92, 104

The Owners – Strata Plan No. 36613 v Doherty; Doherty v The Owners – Strata Plan No. 36613 [2021] NSWCATAP 285 (22 September 2021)

APPEAL — Applicant seeking to set aside a default judgement — Where plaintiff has not filed or served affidavits on which she wishes to rely to establish the grounds of appeal — Adjournment application refused CIVIL PROCEDURE — Parties — Misjoinder — Failure to join proper party — Whether defendants having any
interest in the proceedings — Whether proceedings should be dismissed— rules 6.29 and 50.5 of the Uniform Civil Procedure Rules — Proceedings dismissed — Costs Orders

STRATA TITLE — Owners corporation — Whether a member of strata committee of the owner’s corporation has an interest in the appeal — Party removed from the proceedings

Qasim v Kekatos Lawyers [2021] NSWSC 1366 (26 October 2021)

COSTS — Security for costs — Whether security should be ordered against an Owners Corporation

Strata Plan 94417 trading as The Owners-Strata Plan 94417 v TC Build [2021] NSWSC 1284 (11 October 2021)

LAND LAW – strata title – common property – lot owners not to unilaterally conduct work on common property – orders to restore common property to pre-existing condition – impossibility of complying with part of order – order varied

Kendal v Mackay [2021] NSWCATAP 309 (07 October 2021)

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — termination — by landlord – authority of agent – landlord a foreign resident – subsequent District Court proceedings between the same parties – no question of principles

Seymour v Wu [2021] NSWCATAP 289 (27 September 2021)

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Retaliatory evictions

Rezay v Wang [2021] NSWCATCD 80 (17 August 2021)

BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) — Major defect — Whether any defects are a major defect — Whether a work or a money order should be made in respect of major defects as agreed or found

Dodd v Balmain Projects Group Pty Ltd [2021] NSWCATCD 82 (17 August 2021)

BUILDING AND CONSTRUCTION — Proper construction of payment provisions in clauses 12 and 14 of New South Wales Fair Trading residential building contract — Damages — Mitigation — Work order — Section 48MA of the Home Building Act 1989 (NSW)

Addbuild Master Builders Pty Ltd v Stern [2021] NSWCATCD 83 (13 August 2021)

COSTS – Applicant commences Class 4 proceedings seeking declaratory relief – proceedings concerned application of cl 4.1A of the Randwick Local Environmental Plan 2012 to nominated development proposal plans – Applicant subsequently amends relief – amended relief seeks abstract judicial advice concerning cl 4.1A – not appropriate to give judicial advice sought – related Class 1 proceedings based on cl 4.1A fail because design merit proceedings fail – Class 4 proceedings dismissed – no reason to depart from presumption that costs follow the event – Applicant to pay Respondent’s costs of Class 4 proceedings – Applicant to pay Respondent’s costs of Class 4 costs consideration.

Drake v Randwick City Council [2021] NSWLEC 98 (16 September 2021)

COSTS – Class 1 strata subdivision appeal – strata subdivision appeal contingent on successful outcome in Class 1 dual occupancy (attached) development appeal – development appeal unsuccessful – strata subdivision appeal necessarily dismissed as a consequence – Respondent applies for costs of day of strata subdivision appeal addressing jurisdictional issues – no determination of jurisdictional issues – inappropriate to conduct hypothetical determination of jurisdictional issues in strata subdivision appeal – no basis to award Respondent costs for jurisdictional hearing day.

Drake v Randwick City Council [2021] NSWLEC 97 (16 September 2021)

BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – ss 18B, 18F, 48MA – Statutory warranty – Defective work – Statutory defence -Whether failure to comply with specified purpose – Mitigation of damage – Work order or money order

Blackhall v Fine Cut Building Pty Ltd [2014] NSWCATCD 214 (22 June 2021)

LAND LAW — Strata title —Strata Schemes Management Act 1996 — Order invalidating resolution

Strang v The Owners – Strata Plan No. 92709 [2021] NSWCATCD 48 (08 July 2021)

LAND LAW – Strata title – Common property – Identification of common property – Delineation of boundaries between lot and common property – Interpretation of strata plan – Whether order should be made restraining a lot owner from exclusively occupying common property LAND LAW – Strata title – Owners corporation – Meetings of owners corporation – Whether the Civil and Administrative Tribunal has jurisdiction to order an owners corporation to convene a general meeting

The Owners – Strata Plan No 68255 v Downs Downs v The Owners – Strata Plan No 68255 [2021] NSWCATCD 34 (22 July 2021)

BUILDING AND CONSTRUCTION—Residential building work—Written contract—Whether payments made outside terms of written contract—Whether contract had been varied—No error established

Garofali v Moshkovich [2021] NSWCATAP 242 (13 August 2021)

APPEALS — from exercise of discretion — procedural decisions — refusal to extend time for filing summons — reasons for delay — significance of first instance decision decided on basis of authority later overturned on appeal — interest rei publicae ut sit finis litium

COSTS — costs assessment — determination — review/appeal — jurisdiction to appeal from certificates in proceedings commenced prior to 1 July 2015

HUANG v THE OWNERS OF STRATA PLAN No 7632 – [2021] NSWCA 194 (3 September 2021)

LAND LAW- Strata title- reallocation of unit entitlements – unreasonable initial allocation – application by owners corporation – requirement for a certificate of valuation – hardship to lot owner – restitutio in integrum -.

Newcastle Central Plaza Pty Ltd v The Owners – SP; No 80412 [2021] NSWCATAP 169 (9 June 2021)

ADMINISTRATIVE LAW — particular administrative bodies — NSW Civil and Administrative Tribunal – Tribunal not bound by the rules of evidence – Tribunal made order that Procedural Direction 3 apply to the proceedings – whether there was power to make order that Procedural Direction 3 apply to the proceedings when s 38(2) of the Civil and Administrative Tribunal Act 2013 provided that the Tribunal was not bound by the rules of evidence – held that there was power – although not bound by the rules of evidence the Tribunal had power to order that Procedural Direction 3 apply to the proceedings to ensure the Tribunal was provided with a satisfactory basis for the findings to be sought at the hearing and that expert opinions were soundly based, complete and reliable

McGrath v The Owners – Strata Plan No 13631 [2021] NSWCATAP 167 (4 June 2021)

APPEAL — NCAT— leave to appeal from interlocutory decision of Consumer and Commercial Division – question of law – leave to appeal

STRATA SCHEMES – interlocutory question – application under s 238 Strata Schemes Management Act 2015 – whether “interested person” under s 226
Strata Schemes Management Act 2015 – meaning of “lawful occupier” – application by executor prior to grant of probate – whether an “estate or interest” in a lot

PRACTICE AND PROCEDURE – orders outside scope of interlocutory question – final orders dismissing parts of Application – orders quashed

Wang v MacDermott [2021] NSWCATAP 75 (24 March 2021)

COSTS – whether there are special circumstances warranting an award of costs

Y E Holdings Pty Limited v The Owners – Strata Plan No. 80877 [2021] NSWCATCD 22

APPEAL – strata scheme – reallocation of unit entitlements – application to vary past contributions in line with new allocation of unit entitlements – application of s 87 of Act – denial of procedural fairness – exercise of discretion – while error of law found no error in exercise of discretion

Trentelman v The Owners – Strata Plan No 76700 [2021] NSWCATAP 222 (21 July 2021)

APPEALS — procedure — time limits — extension of time — principles — delay of two years — no question of principle

The Owners – Strata Plan No 76700 v Trentelman [2021] NSWCATAP 205 (9 July 2021)

APPEALS – Application for leave to appeal – no question of principle – whether the Tribunal erred in finding that the appellants were not parties to the contract relied on

Stemp v Otis Elevator Company Pty Ltd [2021] NSWCATAP 220 (20 July 2021)

APPEALS-orders consequential upon substantive decision-remittal of claims for redetermination-costs COSTS – -costs of the appeal follow the event-substantial success by the appellant LAND LAW – Strata title –orders consequential upon substantive decision-set aside appointment of compulsory strata manager-set aside orders varying amount of the levy

The Owners – Strata Plan No 1813 v Keevers, Bourke and Fardell (No 2) [2021] NSWCATAP 229 (30 July 2021)

LAND LAW – strata title – common property – common property rights by-law – whether unreasonable refusal to consent

Bruce v Knight [2021] NSWCATAP 224 (23 July 2021)

LANDLAW – strata title – appointment of compulsory manager to strata scheme, whether appointment possible in light of appointment of existing strata manager, whether appointment possible when no meeting has occurred under s 237(6)

Foong v Scutella [2021] NSWCATAP 225 (23 July 2021)

STRATA TITLES – claim for breach of duty to maintain and keep in good repair the common property – s 106(1) of the Strata Schemes Management Act – whether common property memorandum or bylaw exempted owners corporation from the claim – whether the Tribunal had power under s232 of the SSMA to order the owners corporation to rectify damage to lot owners property – whether breach of s106(1) established -whether causation established APPEAL – error of law – new hearing pursuant to s 80(3) of the Civil and Administrative Tribunal Act

Mastellone v The Owners-Strata Plan No 87110 [2021] NSWCATAP 188 (25 June 2021)

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rent — abatement of rent — whether premises became partly uninhabitable during the term of the tenancy agreement

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Repairs

Stokes v Zarimis [2021] NSWCATCD 23 (07 June 2021)

APPEALS-orders consequential upon substantive decision-remittal of claims for redetermination-costs

COSTS – -costs of the appeal follow the event-substantial success by the appellant

LAND LAW – Strata title –orders consequential upon substantive decision-set aside appointment of compulsory strata manager-set aside orders varying amount of the levy

The Owners – Strata Plan No 1813 v Keevers, Bourke and Fardell (No 2) [2021] NSWCATAP 229 (30 July 2021)

LAND LAW – Strata title – Appointment of compulsory strata managing agent – Limited to functions – Appointment of existing strata managing agent

Lee v The Owners – Strata Plan No. 56120 [2021] NSWCATCD 8 (25 May 2021)

LAND LAW – strata title – award of damages under s.106(5) of the Strata Schemes Management Act 2015 – foreseeable loss of rent through failure to repair

Huang & Giang The Owners Strata Plan No.65865 [2021] NSWCATCD 15 (31 May 2021)

CIVIL PROCEDURE – application for leave to file a cross-summons and list cross-claim statement against sub-contractors of the defendant builder – where no material facts pleaded or alleged defects particularised in support of the allegations – application dismissed

The Owners – Strata Plan No 89005 v Stromer [2021] NSWSC 853 (14 July 2021)

BUILDING AND CONSTRUCTION – claim against builder and developer for building defects – claim settled on date of hearing – settlement agreement – provision that rectification works be effected in accordance with remedial contract – provision in settlement agreement that if default occurs judgment to be entered in accordance with pre-signed short minutes of order – whether parties obliged to refer alleged dispute about whether there had been such default to expert determination – whether settlement agreement or remedial contract frustrated

The Owners – Strata Plan No 85561 v Omaya Holdings Pty Ltd [2021] NSWSC 918 (27 July 2021)

LAND LAW – strata title – common property – common property rights by-law – whether unreasonable refusal
to consent

Bruce v Knight [2021] NSWCATAP 224 (23 July 2021)

LANDLAW – strata title – appointment of compulsory manager to strata scheme, whether appointment possible in light of appointment of existing strata manager, whether appointment possible when no meeting has occurred under s 237(6)

Foong v Scutella [2021] NSWCATAP 225 (23 July 2021)

BUILDING AND CONSTRUCTION – Home Building Act 1989 – statutory warranty – proceedings for breach – time in which proceedings to be commenced – calculation of time – applicability of s 36 of the Interpretation Act 1987

ADMINISTRATIVE LAW – particular administrative bodies – NSW Civil and Administrative Tribunal – discretionary decision on practice and procedure – failure to take into account relevant matters

Heys v Balmain Projects Pty Ltd [2021] NSWCATAP 192 (29 June 2021)

LEASES AND TENANCIES — Renewals and options — Exercise of option — Where lessee commenced original proceedings seeking declaration that the parties had entered into a retail lease — Where Court of Appeal held the parties had entered into a retail lease — Where lessee now seeks specific performance of lessor’s agreement to renew the lease pursuant to lessee’s exercise of option — Where lessor pleads that the Court should use its discretion to withhold specific performance on account of the inability of the parties to cooperate, the toxic interpersonal relationship between the principals of the lessor and lessee, and because damages would be an adequate remedy — Where the Court found that a breakdown in personal relations between principals of parties to the lease is not a proper basis for the Court to deny the lessee its proprietary right to a renewal of the lease — Where the Court found that damages are not an adequate remedy — Where the Court grants specific performance of lessor’s agreement to grant a renewed lease to lessee

LEASES AND TENANCIES — Retail leases — Retail shop lease — Lessee in breach of obligations — Where lessor claimed lessee failed to pay rent in circumstances where lessee paid less than the rent due under the lease on its interpretation of the operation of the Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW) — Where COVID-19 regulatory regime required rent to be renegotiated in good faith by lessor and lessee — Where lessor failed to renegotiate in good faith — Where the Court found that the lessor will never be entitled to take a prescribed action against lessee in respect of the short payments in rent

LEASES AND TENANCIES — Retail leases — Retail shop lease — Lessee in breach of obligations — Where lessor claimed lessee failed to pay insurance premiums in relation to outgoings pursuant to the lease — Where lessor and lessee disputed the meaning of ‘insurance’ — Where lessor claimed lessee must pay a share of product and public liability insurance — Where lessee held its own insurance in that regard — Where the Court held that the lessee did not breach the lease by failing to pay the share of premiums claimed by the lessor

LEASES AND TENANCIES — Retail leases — Retail shop lease — Lessee in breach of obligations — Where lessor claimed lessee failed to maintain the premises in good condition — Where lessor sought order requiring lessee to perform a list of maintenance tasks — Where it is unclear on the evidence whether the rectification of the alleged breaches are the responsibility of the lessor or lessee under the lease — Where the Court held that it should make an appropriate order that will facilitate the Court being able to make an order in relation to the cleaning, repair and maintenance of the Premises

LEASES AND TENANCIES — Retail leases — Retail shop lease — Lessee in breach of obligations — Where lessor claimed lessee failed to provide access to the premises for inspection — Where no evidence lessor sought to access premises for purpose of inspection — Where the Court refused to make the orders sought by the lessor

TORTS — Trespass to land — Damages — Where lessor claimed damages against lessee for trespass on parts of property outside leased premises — Where lessor has not proved that it suffered any loss — Where lessor has not establish that it had title to bring a claim in trespass against lessee — Where the Court found that if the lessor has title to bring a claim in trespass, the damages awardable would be nominal in any event

Darzi Group Pty Ltd v Nolde Pty Ltd [2021] NSWSC 774 (28 June 2021)

STRATA TITLES – claim for breach of duty to maintain and keep in good repair the common property – s 106(1) of the Strata Schemes Management Act – whether common property memorandum or bylaw exempted owners corporation from the claim – whether the Tribunal had power under s232 of the SSMA to order the owners corporation to rectify damage to lot owners property – whether breach of s106(1) established -whether causation established

Mastellone v The Owners-Strata Plan No 87110 [2021] NSWCATAP 188 (25 June 2021)

LAND LAW — Conveyancing — Options — Call options — Whether on proper construction option could be validly exercised if purchase price had not yet been determined in accordance with terms of agreement — No issue of principle

Hobhouse v Mount Gilead Pty Ltd [2021] NSWSC 684 (11 June 2021)

Dispute Resolution Processes – Appeals –  Summary Dismissal/Summary Judgment/Striking Out Proceedings

PRACTICE AND PROCEDURE – time to appeal – extension of time for application – refused – no adequate explanation – whether reasonable prospects of success – relevance of extent of delay

The Owners – Strata Plan No 3004 v Smith [2021] NSWCATAP 141 (18 May 2021)

Dispute Resolution Processes – Adjudicator’s Role – Bias – Transfer of Proceedings

ADMINISTRATIVE LAW – Bias – apprehended bias – interest or association bias – Member of Tribunal providing lay and expert evidence in support of a claim brought by his domestic partner in proceedings in the Tribunal – application to transfer proceedings to a court pursuant to Sch 4 cl 6 of the Civil and Administrative Tribunal Act 2013 – appeal against refusal – whether all Members of the Tribunal affected by apprehended bias so as to necessitate the transfer of the proceedings to a court – challenge to exercise of discretion – principles applicable in claim for apprehended bias

The Owners – Strata Plan No 4159 v Wolff [2021] NSWCATAP 135 (14 May 2021)

Contributions – Imposing Levies

Dispute Resolution Processes – Standing

Resolutions – Validity

LAND LAW – Strata title – special levy – resolution for large amount in respect of common property works – whether special levy went beyond what required to carry out repair work required pursuant to s 106 of the Strata Schemes Management Act (SSMA) – whether resolution to impose special levy made for an improper purpose – controlling lot owners’ objective to buy out other lots in order to redevelop – appointment of strata manager under s 237 of the SSMA – whether improper purpose an irrelevant consideration – variation of special levy

APPEALS – Standing to bring appeal on behalf of Owners Corporation – errors of law – errors in fact-finding – absence of probative evidence for factual conclusions – appropriateness of finding suggesting dishonesty – availability of adverse credit finding -affidavit evidence from two witnesses about a conversation virtually identical – leave to appeal. under s 87 SSMA as excessive.

The Owners – Strata Plan No 1813 v Keevers [2021] NSWCATAP 130 (12 May 2021

BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Statutory warranty – Compliance with the law – Construction work carried out that did not comply with development consent or construction certificate – Whether in breach of statutory warranty – Whether builder entitled to payment for work – Whether builder repudiated contract – Whether builder entitled to terminate contract by reason of the owner’s non-payment of a progress payment and the exclusion of the builder from the site.

Shanahan v Erwin Fornasier tas Enhance Building [2021] NSWCATAP 158 (31 May 2021)

HOME BUILDING – basis of costs orders with remaining areas of dispute but largely by consent – effect of calderbank offer

Bright Build Pty Limited v The Owners – Strata Plan No 94514 [2021] NSWCATAP 163 (02 June 2021)

REAL PROPERTY – strata titles – section 80D of the Strata Schemes Management Act 2015 (NSW)

Bradshaw v Cooke and the Owners – Strata Plan No 91905 [2021] NSWCATAP 156 (31 May 2021)

DEVELOPMENT APPLICATION – conciliation conference – strata subdivision of dual occupancy – agreement between the parties – orders

 Bereveskos v Sutherland Shire Council [2021] NSWLEC 1276 (24 May 2021)

DEVELOPMENT CONTROL ORDER – fire safety orders – conciliation conference – agreement between the parties – modification of order

 Owners Strata Plan 74232 v Waverley Council [2021] NSWLEC 1275 (24 May 2021)

LAND LAW – Adverse possession – Actual possession – Old system title – Conversion to Torrens title – Limited title – Indefeasibility of title – Exceptions to indefeasibility – Where successful claim at trial in respect of adverse possession of small portion of a ‘dunny lane’ commencing before creation of limited folio – Whether statutory possessory application over Torrens title land able to be made – Alternatively, whether adverse possession claims preserved at common law by reason of possession for any length of time commencing prior to creation of folio – Whether wrong description of parcel or boundaries in circumstances where adverse possessory claim inchoate but not crystallised at time of conversion – Appeal dismissed
LIMITATION OF ACTIONS – Actions to recover land – Adverse possession – Interaction of Limitation Act 1969 (NSW), ss 27 and 65, with Real Property Act 1900 (NSW), s 45C
STATUTORY INTERPRETATION – Interpretation of Real Property Act 1900 (NSW) – Extrinsic materials – Explanatory memoranda and notes – Legislative history – Registrar-General’s guidelines – Second reading speeches
MORTGAGES AND SECURITIES – Mortgages – Duties, rights and remedies of mortgagee – Right to notice of proceedings in which orders might be made affecting mortgagee’s interest – Where no notice given and no application by mortgagee to set aside orders below – Where application may not succeed – Where if successful, ultimate result unlikely to be different – Where impact on value of mortgagee’s security likely de minimis – Absence of notice not decisive of appeal APPEALS – Leave to appeal – Whether leave required – Monetary threshold – Whether threshold denotes value of whole parcel of land or disputed portion only – Where questions of principle and public importance as to Torrens system also raised – Leave granted

 Sidoti v Hardy [2021] NSWCA 105 (26 May 2021)

Dispute Resolutions Processes – Awarding Costs

COSTS – Section 60 of the Civil and Administrative Tribunal Act 2013 (NSW) – special circumstances

 Macey’s Group Pty Ltd v The Owners – Strata Plan No 33591 [2021] NSWCATAP 88 (12 April 2021

COSTS – costs of appeal and at first instance, special circumstances.

 Gelder v The Owners – Strata Plan No 38308 [2021] NSWCATAP 109 (29 April 2021)

COMPULSORY ACQUISITION OF LAND – Valuer General determines market value of acquired land – acquired land subject of contract for sale -Valuer General apportions market value between vendor and contracted purchaser – contract to purchase contingent on simultaneous settlement of two other purchases by interests related to purchaser of the acquired land – deed between the three vendors and the three purchasers requiring that all purchases be settled at the same time – purchasers would have been unable to settle at the same time – determination of the value of the equitable estate of the purchaser of the acquired land – value of the equitable estate of the purchaser of the acquired land is “Nil”
CROSS-CLAIM – Valuer General’s apportionment of compensation for market value fails to account for necessity for simultaneous settlement of three purchases – acquiring authority pays compensation to purchaser for market value of equitable interest based on Valuer General’s determination – acquiring authority cross-claims to recover amount paid for equitable interest as the market value of the equitable interest is “Nil” – no opposition from purchaser to acquiring authority’s cross-claim – jurisdiction and power of Land and Environment Court to order repayment – purchaser ordered to repay acquiring authority the amount paid in reliance on the Valuer General’s determination of the purchaser’s equitable interest in the acquired property
COMPULSORY ACQUISITION OF LAND – claim for compensation of an equivalent payment to stamp duty for the value of a replacement property – three compulsory acquisitions by the acquiring authority – each acquired property part of a common set of business interests – claim for stamp duty equivalent payment based on s 59(1)(d) of the Land Acquisition (Just Terms Compensation) Act 1992 – claims founded on asserted possible relocation of business of holding land – earlier finding (undisturbed on appeal) that none of the dispossessed owning entities was undertaking any actual use of the relevant acquired land – consideration of whether compensation entitlement arose when no actual use of the acquired land – held that actual use of the acquired land a necessary prerequisite for the award of stamp duty equivalent compensation – stamp duty compensation claims rejected.

 G Capital Corporation Pty Limited v Transport for NSW; Gertos Holdings Pty Ltd v Transport for NSW; Marsden Developments Pty Ltd v Transport for NSW [2021] NSWLEC 44 (20 May 2021)

APPEAL – procedural fairness – application determined on a basis not raised with parties or sought or addressed by them
COSTS – principles as to when fixed sum costs order should be made – need for sufficient material

 Neighbourhood Association DP No 285853 v Kannapiran [2021] NSWCATAP 92 )16 April 2021).docx

Body Corporate – Powers, Authorities, Duties and Functions
Common Property – Maintenance –  Powers, Authorities, Duties and Functions – Repairs
Dispute Resolution Processes – Appeals –  Time Limitations
STRATA TITLE – appeal from order of Tribunal awarding damages to a lot owner for breach of the statutory duty in s 106(1) of the Strata Schemes Management Act 2015 – duty to properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation
STATUTORY INTERPRETATION – meaning of 2 year limitation period in s 106(5) of the Strata Schemes Management Act 2015

 The Owners – Strata Plan No 80412 v Vickery [2021] NSWCATAP 98 (21 April 2021)

BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – residential building work – statutory warranty – proceedings for breach – damages – claimed loss of rent cause by breach of statutory warranty – no evidence to support claim – claim dismissed – no error in Tribunal rejecting evidence not previously served – fresh evidence rejected on appeal as not established that evidence not reasonably available at the time of the Tribunal hearing

 Lane v Bloc Constructions (NSW) Pty Ltd [2021] NSWCATAP 114 (05 May 2021)

STRATA TITLE – appeal from order of Tribunal awarding damages to a lot owner for breach of the statutory duty in s 106(1) of the Strata Schemes Management Act 2015 – duty to properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation
STATUTORY INTERPRETATION – meaning of 2 year limitation period in s 106(5) of the Strata Schemes Management Act 2015

 The Owners – Strata Plan No 80412 v Vickery [2021] NSWCATAP 98 (21 April 2021)

LEASES AND TENANCIES – excessive rent – reduction or withdrawal of goods, services or facilities – reduction or withdrawal must be by the landlord – covenant to provide the residential premises in a reasonable state of cleanliness and fit for habitation – covenant to provide and maintain the residential premises in a reasonable state of repair

 Pan v Malveholm [2021] NSWCATAP 101 (22 April 2021)

ADMINISTRATIVE LAW – Home building – Application for contractor licence – Whether applicant satisfied criterion in respondent’s policy of having experience in a wide range of building construction work – Whether applicant satisfied criterion in respondent’s policy of having been supervised by the holder of a contractor licence when doing that work – Whether applicant satisfied statutory criterion of having experience enabling him to do, or to supervise, the work for which a supervisor certificate is required – Whether applicant is capable of doing or supervising work for which a supervisor certificate is required

 Wilmot v Commissioner for Fair Trading [2021] NSWCATOD 43 (13 April 2021)

Common Property – Repairs – Definition of/What Constitutes
BUILDING AND CONSTRUCTION – Home Building Act 1989(NSW) – statutory warranties – whether defects part of lot property or common property

 The Owners – Strata Plan No 87265 v Saaib; The Owners – Strata Plan No 87265 v Alexandrova [2021] NSWSC 150 (1 March 2021)

Dispute Resolution Processes – Appeals – Awarding Costs – Orders – Standing
APPEAL — NCAT— leave to appeal from interlocutory decision of Consumer and Commercial Division – question of law – leave to appeal
STRATA SCHEMES – interlocutory question – application under s 238 Strata Schemes Management Act 2015– whether “interested person” under s 226 Strata Schemes Management Act 2015 – meaning of “lawful occupier” – application by executor prior to grant of probate – whether an “estate or interest” in a lot
PRACTICE AND PROCEDURE – orders outside scope of interlocutory question – final orders dismissing parts of Application – orders quashed

 Wang v MacDermott [2021] NSWCATAP 75 (24 March 2021)

Dispute Resolution Processes – Appeals – Awarding Costs
COSTS – appeals – held appeal proceedings were without merit and endeavoured to re-agitate and relitigate matters previously decided adversely to the appellants – held constituted “special circumstances” justifying the making of a costs order.

 Huang v The Owners – Strata Plan No 7632 (No 2) [2021] NSWCATAP 67 (19 March 2021)

Dispute Resolution Processes – Appeals – Awarding Costs
COSTS – general rule that costs follow the event – appeal abandoned in light of recent New South Wales Court of Appeal authority – costs should follow the event following abandonment of appeal

 The Owners – Strata Plan No 30361 v Morgan [2021] NSWCATAP 50 (8 March 2021).pdf

Animals – Consent to Keeping – Validity of by-law
LANDLORD -STRATA TITLE -STRATA SCHEMES MANAGEMENT ACT 2015, ss150, 157 – Validity of by law – keeping of dog

 McGregor v The Owners – Strata Plan No 74896 [2021] NSWCATCD 1 (1 March 2021)

CONTRACTS — Performance — deed of settlement — deed between owners corporation and owner as a result of water damage to property and resulting mould and related illnesses — whether Defendant had properly fulfilled obligations under the deed.

 BYRNE v STRATA PLAN – [2021] NSWSC 342 (9 April 2021)

HOME BUILDING – whether costs order appropriate on consent transfer to Supreme Court – costs on appeal against primary costs order where a different order is made but not substantially that sought by appellant

 OWNERS SP 92648 v BINAH CONSTRUCTIONS PL & ANOR [2021] NSWCATAP 68 (22 March 2021)

Common Property – Definition of/What Constitutes
Resolutions – Validity – Sale of Lots – Condition precedent
CONTRACT – formation and validity – proposal by owner of development lots to convert lots into non-strata blocks and build townhouses of specified height – cooperation of strata corporation required – development lot owner promised proposal would result in continuing access for strata owners to swimming pool on her land – resolution passed at general meeting – no contractual effect
ESTOPPEL – proprietary estoppel – encouragement – detrimental reliance – whether lot owner’s promise made to strata corporation – whether reliance by corporation – corporation entitled to easement over pool land
EQUITY – rectification – mistake – strata plan of subdivision included notation that pool structures formed part of common property – notation failed to include three-dimensional space around pool structures – inclusion of notation deliberate and mistake established but intended form of plan could not be determined – rectification refused

 Trentelman v The Owners – Strata Plan 76700 The Owners – Strata Plan 76700 v Trentelman [2021] NSWSC 155 (26 February 2021)

BUILDING AND CONSTRUCTION – Proceedings settled by Deed of Settlement entitling plaintiff to judgment against the first defendant in the event that the defendant did not carry out certain remedial building works, in particular in relation to fire safety – Deed included an undertaking by the first defendant to pay legal costs in three fixed instalments – Where first defendant breached the Deed – Plaintiff accordingly entitled to judgment

 Owners Strata Plan 93810 v KCN Constructions Pty Ltd [2021] NSWSC 176 (03 March 2021)

BUILDING AND CONSTRUCTION – Proceedings settled by Deed of Settlement entitling plaintiff to judgment against the first defendant in the event that the defendant did not carry out certain remedial building works, in particular in relation to fire safety – Deed included an undertaking by the first defendant to pay legal costs in three fixed instalments – Where first defendant breached the Deed – Plaintiff accordingly entitled to judgment

 Owners Strata Plan 93810 v KCN Constructions Pty Ltd [2021] NSWSC 176 (03 March 2021)

AGENCY – whether implied actual authority to enter building contract – where builder did not sign contract – where numerous documents signed in name of builder – whether builder authorised nephew to enter into contract on his behalf – no authority found from the circumstances
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – statutory warranties – whether defects part of lot property or common property
CONSUMER LAW – misleading or deceptive conduct – causation or reliance – where home warranty insurance issued due to misleading representations made by insurance broker – whether representations sufficiently causative of loss to Owners Corporation EVIDENCE – tendency evidence – conduct – whether evidence of builder performing favours for friends characterised as tendency evidence of conduct regarding commercial development

 The Owners – Strata Plan No 87265 v Saaib;; The Owners – Strata Plan No 87265 v Alexandrova [2021] NSWSC 150 (01 March 2021)

Dispute Resolution – Awarding Costs
APPEAL — NCAT — leave to appeal from decision of Consumer and Commercial Division of NCAT — assessment of whether decision is “against the weight of evidence” where Appeal Panel is not provided with all of the material that was before the Tribunal
COSTS — whether special circumstances warranting an award for costs are established — whether discretion to award costs should be exercised

 Delmont Purcell v The Owners – Strata [2021] NSWCATAP 3 (6 January 2021)

Dispute Resolution Process – Awarding Costs
COSTS – Amount in dispute – Rule 38 – Rule 38A

 Burbank Montague Pty Ltd v The Owners – Strata Plan No. 8531 and Ors (No 2) [2021] NSWCATAP 15 (28 January 2021)

By-Laws – Changes to
Dispute Resolution Settlement
STRATA TITLES LAW – Repeal of by-law – enforcement of settlement agreement reached at mediation under Part 12Division 2 of the Strata Schemes Management Act 2015 – resolution to repeal by-law in consequence of settlement agreement – refusal by lot owner to consent to the repeal – power of Tribunal to make an order under s 149 of the Strata Schemes Management Act 2015 – whether refusal was unreasonable
ADMINISTRATIVE LAW – power of the Tribunal under s 58of the Civil and Administrative Tribunal Act to impose conditions

 Macey’s Group Pty Ltd v Owners – Strata Plan No 33591 [2021] NSWCATAP 7 (18 January 2021)

LAND LAW – Strata title – Strata managing agent – Compulsory appointment of strata managing agent

 Robert Nigel Dickson Pty Ltd v The Owners – Strata Plan No. 69703 Medium Neutral Citation [2021] NSWCATCD (13 January 2021)

HOME BUILDING — costs applications — confusion over correct identification of respondents — substantive proceedings largely settled by agreement — remaining issues determined by Tribunal — Offers of Settlement — Calderbank Offer —

The Owners — Strata Plan No. 94514 v Bright Built Pty Ltd and Saade Construction Pty Ltd and Saade Construction Group Pty Ltd [2020] NSWCATCD 4 (04 September 2020)

BUILDING AND CONSTRUCTION – Contract – Home Building Act 1989 (NSW) – Statutory warranties – whether contract confined to negotiated scope of works or expanded to include other works by virtue of the implied statutory warranties – whether building in breach of statutory warranties
CONTRACTS – Remedies – Damages – where loss claimed would have been suffered if contract had been properly performed

 Oikos Constructions Pty Ltd tas Lars Fischer Construction v Ostin & Anor [2020] NSWCA 358 (24 December 2020)

By-Laws – Validity

YBOS Pty Ltd t/as BIG4 Tweed Billabong Holiday Park v Creek [2020] NSWCATAP 284 (23 December 2020)

COMMUNITY SCHEME – Residential (Land Lease) Communities Act 2013(NSW) – residential and tourist sites – age restriction rule for residents – home owner – occupant – whether rule fair and reasonable and clearly expressed – age restrictions for additional occupants – whether rule inconsistent with another Act – anti-discrimination – age discrimination – whether operator under a site agreement provides goods and services – community rules – statutory and other instruments – application of community rule to tourists

 YBOS Pty Ltd t as BIG4 Tweed Billabong Holiday Park v Creek [2020] NSWCATAP 284 (23 December 2020)

Dispute Resolution Process – Awarding Costs
COSTS — operation of r 38A of the Civil and Administrative Tribunal Rules 2014

 Loneragan v The Owners – Strata Plan No 16519 (No 2) [2020] NSWCATAP 283 (22 December 2020)

Common Property – Damage/changes to Dispute Resolution Process – Awarding Costs
STRATA TITLE- appeals from orders of Tribunal requiring appellants to remove work carried out by them on common property without authority and to pay legal costs of body corporate – finding that work was carried out on common property upheld-adverse costs order upheld- appeals dismissed

 Huang v The Owners – Strata Plan No 7632 [2020] NSWCATAP 278 (21 December 2020)

Dispute Resolution Process – Awarding Costs
COSTS – s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) – special circumstances – complexity of proceedings – statutory construction – issue not previously decided by Appeal Panel

 The Owners – Strata Plan No 63731 v B & G Trading Pty Ltd (No 2) [2020] NSWCATAP 273 (17 December 2020)

Insurance – (Claims by Body Corporate) – Policy
INSURANCE – strata insurance policy for damage to property – property damaged by fire – occupation of a unit within the strata by an “outlaw motorcycle gang” (‘OMCG’) for use as its clubhouse – proposal form for insurance referred to nature of occupation of the unit as an ‘office’ – whether fact of occupation by OCMG disclosed by Insured, by its insurance broker, to underwriting agent for Insurer prior to the policy being entered into – materiality of non-disclosure of occupation by OMCG – whether Insurer entitled to reduce liability to nil under Insurance Contracts Act 1984(Cth), s 21(3)
TORTS – negligence – whether insurance broker negligently failed to disclose fact of OMCG’s occupation to Insurer’s underwriting agent – whether negligent failure to advise Insured of the risk of an unenforceable policy of insurance if OMCG’s occupation not disclosed – whether broker’s negligent failure to advise client of alternative options – causation – scope of liability where only part of the loss claimed premised upon Insurer’s breach of contract of indemnity – proportionate liability defence – whether author of earlier proposal form and earlier broker were ‘concurrent wrongdoers’
TORTS – negligence – on contingent cross-claim whether insurance agent in breach of duty of care – whether negligence is said to be direct or vicarious
DAMAGES – assessment of value of indemnity if insurer liable for breach of policy
LIMITATION OF ACTIONS – Insurer’s contingent cross-claim against underwriting agent – premise that OMCG’s occupation was disclosed contrary to underwriter’s representation to Insurer – concession that if OMCG’s occupation was disclosed on the insured’s behalf, there was breach by underwriter of strict contractual obligation – whether cause of action against underwriter in contract statute barred – whether cause of action fraudulently concealed – Limitation Act 1969(NSW), s 55 – whether ordinary operation of s 14 may exclude period in which wrongful conduct prevents action being commenced
ESTOPPEL – conventional estoppel
EVIDENCE – common knowledge – whether occupation by OMCG of a tenancy was material fact requiring disclosure to Insurer
PRACTICE AND PROCEDURE – Brokers and Insured argue that duty of disclosure waived or modified by disclosure of information – no pleading of the contention – Insurer and Agent argue Owners Corporation had no standing to claim for financial loss asserted by lot owners – no pleading of absence of standing – whether arguments should be considered by the Court

 The Owners – Strata Plan No 55682 v W. R. Berkley Insurance (Europe), PLC & Ors [2020] NSWDC 758 (17 December 2020)

By-Laws – Exclusive Use and Special Privileges
RETIREMENT VILLAGES – Retirement Villages Act 1999(NSW), s 5 – meaning of “retirement village” – “village contracts” – whether contracts giving rise to “residence right” – whether contracts “under which” services provided – whether complex “predominantly or exclusively” occupied or intended to be occupied by residents having village contracts with operator
RETIREMENT VILLAGES – Retirement Villages Act 1999(NSW) – meaning of “operator” of retirement village – whether plaintiff manages or controls village – whether sufficient that plaintiff owns land in the village or is within Retirement Villages Regulation 2017 (NSW), reg 6 – meaning of “land”
RETIREMENT VILLAGES – Retirement Villages Act 1999(NSW), s 171 – where prospective seller not a resident – whether “vendor” must be a “resident” of village – whether s 171 applies to operator not involved in management or control of village
CONTRACTS – uncertainty – where clause requires that any contract for sale of property be subject to purchaser’s agreement with third party – whether clause void for uncertainty as agreement to agree – whether purchaser under contract for sale would have discretion not to perform
CONTRACTS – restraints on alienation – where clause requires that any contract for sale of property be subject to purchaser’s agreement with third party – whether clause void as impermissible restraint on alienation of land – whether restraint has valid collateral purpose

 Bondi Beach Astra Retirement Village Pty Ltd v Assem [2020] NSWSC 1814 (16 December 2020)

Lots – Boundary
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – Building dispute – Tribunal powers – Whether the Tribunal had jurisdiction to determine an application which had been accepted despite the absence of an investigation by Fair Trading NSW or a direction by the President
PRACTICE AND PROCEDURE – Whether it was an error of law for the Tribunal to refuse a party leave to amend its Points of Defence at the final hearing

 Maygood Australia Pty Ltd v The Owners – Strata Plan No 85338 [2020] NSWCATAP 237 (16 November 2020)

Dispute Resolution Process –  Orders -Procedural Fairness and Natural Justice
JUDGMENTS AND ORDERS – Consent order – meaning of order – interim or final order – admissibility of extrinsic evidence
ADMINISTRATIVE LAW – procedural fairness – order made without submissions from parties and without providing parties with an opportunity to be heard

 Rosenthal v The Owners – Strata Plan No 20211 [2020] NSWCATAP 251 (26 November 2020)

Dispute Resolution – Awarding Costs
COSTS – party/party – disbursements – disbursements of respondent paid out of strata manager’s trust fund from funds deposited by appellants pursuant to special by-law – whether disbursements were the appellants’ costs of the proceedings – not the appellants’ costs of the proceedings – authority of respondent to use trust funds to pay its disbursements doubted

 Khoury v The Owners – Strata Plan No 4115 [2020] NSWCATAP 241 (18 November 2020)

Common Property – Maintenance – Powers, Authorities, Duties and Functions
Dispute Resolution – Jurisdictional – Standing
STRATA TITLES – obligation of owners corporation to maintain common property in good repair – owners corporation breached obligation, causing damage to lot owner – NCAT authorised to make orders to “settle” a complaint or dispute about strata scheme – whether NCAT authorised to award damages to lot owner – consideration of nature of lot owner’s cause of action – consideration of conferral of jurisdiction and power upon NCAT – consideration of legislative history – consideration of interaction of jurisdiction of courts and NCAT – appeal allowed, NCAT authorised to award damages.
TORT – breach of statutory duty – statute authorised lot owner to recover damages for breach of statutory duty – consideration of nature of lot owner’s cause of action.

 Vickery v The Owners – Strata Plan No 80412 [2020] NSWCA 284 (11 November 2020)

By-Laws – Validity
Common Property – Consent to Build On
LAND LAW – strata title – common property – common property rights by-law – whether unreasonable refusal to consent – errors of law

 Gelder v The Owners – Strata Plan No 38308 [2020] NSWCATAP 227 (5 November 2020)

BUILDING AND CONSTRUCTION – limitation period – limitation period for actions arising out of defective building work more than ten years after completion of work – limitation period originally contained in s 109ZK of Environmental Planning and Assessment Act 1979 – section renumbered as s 6.20 – as originally enacted, s 109ZK applied only prospectively – defendant’s building work done before enactment of s 109ZK – whether limitation period applied to building work done before section enacted – whether s 6.20 replaced s 109ZK – whether limitation period applied to loss of the kind alleged by the plaintiff.
STATUTORY CONSTRUCTION – amending legislation – limitation section renumbered and reworded – transitional and savings regulations – regulations deferred commencement and qualified scope of limitation period – effect of repeal of regulation – further regulations including amended regulations preserving repealed sections and qualifying renumbered section – whether effect of legislation and amendment was a period of time during which limitation period did not apply – whether legislation displaced operation of Interpretation Act 1987 – observations on undesirability of regulations affecting operation of statute.

 Bandelle Pty Ltd v Sydney Capitol Hotels Pty Ltd [2020] NSWCA 303 (25 November 2020)

APPEAL – residential tenancy – social housing – mould – expert report obtained by landlord – report not provided to tenant – production on appeal under summons – whether access should be granted – whether substantial new evidence not reasonably available – whether decision not fair and equitable

 Chen v NSW Land and Housing Corporation [2020] NSWCATAP 238 (18 November 2020)

BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – Building dispute – Tribunal powers – Whether the Tribunal had jurisdiction to determine an application which had been accepted despite the absence of an investigation by Fair Trading NSW or a direction by the President
PRACTICE AND PROCEDURE – Whether it was an error of law for the Tribunal to refuse a party leave to amend its Points of Defence at the final hearing

 Maygood Australia Pty Ltd v The Owners – Strata Plan No 85338 [2020] NSWCATAP 237 (16 November 2020)

LAND LAW – strata title – common property – common property rights by-law – whether unreasonable refusal to consent – errors of law

 Gelder v The Owners – Strata Plan No 38308 [2020] NSWCATAP 227 (05 November 2020)

LAND LAW – strata title – strata managing agent – fees– no evidence of work done for and reasonableness of fees charged – work for which fees charged included in annual base fee

 Perpetual Strata Management Pty Ltd v The Owners – Strata Plan no 97977 [2020] NSWCATAP 228 (04 November 2020)

APPEAL – Residential Tenancy – findings of fact – failure to deal with issues in dispute

 Chung v Zadeh [2020] NSWCATAP 230 (05 November 2020)

BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – major defect – major element – caused or likely to cause the inability to inhabit the building or part of the building or the destruction of the building or part of the building or a threat of collapse of the building or part of the building. – meaning of waterproofing – evidence relevant to determination of whether defect likely to cause prescribed consequences
APPEALS – leave to appeal – substantial miscarriage of justice – new evidence following completion of work subsequent to determination of claim

 Ashton v Stevenson; Stevenson v Ashton [2020] NSWCATAP 233 (09 November 2020)

LAND LAW – strata schemes – by-laws – scope of subject-matter – purposive limits to the power to make by-laws – Strata Schemes Management Act 2015 (NSW), s 136(1) LAND LAW – strata schemes – by-laws – restrictions on by-laws – requirement that by-law not be harsh, unconscionable or oppressive – whether by-law imposing blanket prohibition on keeping animals contravenes provision – Strata Schemes Management Act 2015 (NSW), s 139(1)
STATUTORY INTERPRETATION – use of dictionaries – whether three words comprise a composite statutory criterion
WORDS AND PHRASES – “harsh, unconscionable or oppressive” – Strata Schemes Management Act 2015 (NSW), s 139(1)

 Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250 (12 October 2020)

ADMINISTRATIVE LAW – Civil & Administrative Tribunal (NSW) – appeal on a question of law, substantial miscarriage of justice, appointment of a compulsory strata manager, orders disproportionate to alleged failings of Owners Corporation

 The Owners – Strata Plan No 76317 v Ho [2020] NSWCATAP 205 (6 October 2020)

LAND LAW – strata title – building manager – duration of caretaker agreement – agreement made in 2001 provides for 10 year term with options for three additional 5 year terms – legislation introduced in 2003 regulates appointments of caretakers and duration of caretaker agreements – effect of legislation including transitional provisions upon variations to caretaker agreement made in 2010 and 2015 – variations provided for additional options for further terms – held that agreement as varied not an agreement the duration of which is protected by transitional provisions – held that agreement as varied has maximum duration of 10 years from date when agreement as varied authorised caretaker to act under it – Strata Schemes Management Act 1996, s 40B and Sch 4 Part 4, cl 12 – effect of transitional provisions of Strata Schemes Management Act 2015, ss 66-70 and Sch 3 cll 3, 15
LAND LAW – strata title – owners corporation – meetings of owners corporation – voting by proxy – voting by a proxy who is a caretaker – where vote would confer or assist in conferring a material benefit on the proxy – where proxies held by persons said to be acting on behalf of caretaker as its agent – the provision that invalidates certain votes by a proxy who is a caretaker held to apply only to votes by the caretaker itself as proxy – Strata Schemes Management Act 1996, Sch 2 Part 2 cl 11
LAND LAW – strata title – building manager – cl 9.3 of caretaker agreement gives owners corporation the right to terminate the agreement if caretaker guilty of gross misconduct or gross negligence in performing its responsibilities – numerous allegations of misconduct or negligence including overcharging, standing for election to executive committee, improper use of electricity and failures in respect of fire safety – held that caretaker was guilty of gross misconduct in taking supply of electricity paid for by owners corporation over 18 year period – held that caretaker was guilty of gross misconduct or gross negligence in failing to promptly report to executive committee about unresolved faults in fire alarm system – owners corporation entitled to terminate caretaker agreement under cl 9.3 – right to terminate exercised by executive committee of owners corporation – right to terminate validly exercised despite no advance approval of general meeting of owners corporation – action of executive committee later ratified by resolution passed at general meeting – caretaker had not in the meantime terminated the agreement for repudiation by owners corporation – upon termination under cl 9.3 parties bound to follow regime laid down by cl 10 of agreement – owners corporation in breach of cl 10 by taking possession of caretaker lot, but conduct held not to be repudiatory – caretaker entitled to damages and compensation pursuant to usual undertaking as to damages for deprivation of possession of caretaker lot – Strata Schemes Management Act 2015, s 68(3)

 Australia City Properties Management Pty Ltd v The Owners – Strata Plan No 65111 [2020] NSWSC 1505 (28 October 2020)

MONIES PAID INTO COURT – council sold unit for unpaid rates – owner missing – net proceeds of sale paid into court – PAYMENT OUT – owners corporation and purchaser claim monies – agreement to distribute monies pari passu – r 41.3 UCPR – r 55.11 UCPR – owners corporation’s recovery expenses disproportionate – purchaser paid in full and balance to owners corporation.
STRATA SCHEMES – expenditure on legal services –obligations of strata managing agent and owners’ corporation lawyers to supervise legal expenditure – owners’ corporation entitled to recover reasonable expenses – s86(2A) Strata Schemes Management Act.

 Council of the City of Sydney v Baboon Pty Limited [2020] NSWSC 1480 (16 October 2020)

TORTS– Negligence – Nuisance – Where Plaintiff Owners Corporation of Strata Plan claims First and Second Defendant caused damage to common property – Where First Defendant runs powder coating business out of Second Defendant’s Lot in Strata Complex – Whether garnet and powder was emitted during course of First Defendant’s business – Whether duty is owed by the Second Defendant to Plaintiff – Failure to take proper precautions in running of business – Whether the First Defendant’s business constituted nuisance DAMAGES – Issue of causation – Common law and Civil Liability Act applied – Damage to roof – Whether residue caused further damage – Whether charges could be claimed for cleaning and replacing fire detectors – Whether fire detection system needed to be replaced as result of Defendants negligence – False fire alarm charges

 The Owners Strata Plan No. 72250 v Letmin Pty Limited tas Dubbo Powder Coating [2020] NSWDC 378 (16 July 2020)

CONTRACTS – building and construction – variation claims – whether provision for variations was itself varied – whether implied term incorporated through prior course of dealing – alleged defective works – whether owner’s claim limited in time – whether claimed defects appeared during defects liability period – whether builder liable for “design defects” in commercial contract for construction
DAMAGES – claim for rectification costs for defective works – whether owner intended to rectify – whether proposed works reasonable

 Deane Projects Building Pty Ltd v Kinda Kapers Holdings Pty Ltd [2020] NSWDC 622 (19 October 2020)

LEASES AND TENANCIES — Strata title — Leasehold strata scheme — Common property — Maintenance and repair of common property — Obligations of owner and occupiers — Continual water damage — Renewal of lease despite water damage
RESIDENTIAL AGREEMENT — Purported breach of lease — Failure to fix damaged property — Whether defendants failed to act reasonably in the circumstances — Whether making an application under s 140 of the SSMA Act 1996 would have been a reasonable step in fixing property

 Pursell v Eversham Close Pty Ltd [2020] NSWDC 372 (13 February 2020)

VALUATION OF LAND – consideration of Strata Scheme Development Act 2015 irrelevant to hypothetical valuation of vacant land required by Valuation of Land Act 1916

 Alexandrou v Valuer General of NSW – [2020] NSWLEC 139 (14 October 2020)

COSTS – s 60 of the Civil and Administrative Tribunal Act 2013 – special circumstances – statutory construction – complexity of proceedings – issue not previously decided by Appeal Panel – overruling of previous first instance decisions

The Owners – Strata Plan No 58068 v Cooper (Costs) [2020] NSWCATAP 198 (29 September 2020)

LAND LAW – covenants – restrictive covenants – construction – where restrictive covenant states that no matter or thing of any nature whatsoever shall be constructed on erected on placed on or permitted to remain on the servient tenement that exceeds a height of RL 26 AHD – where airspace above the servient tenement became part of the dominant tenement after registration of the restrictive covenant – whether on the proper construction of the restrictive covenant there is an implied positive covenant or easement allowing the owner of the servient tenement to enter into the airspace on a transitory basis – restrictive covenant held not to include a positive covenant or easement
LAND LAW – easements – implied easements – easements of necessity – where airspace above the putative dominant tenement is owned by putative servient tenement – where that airspace previously formed part of the property of the putative dominant tenement until the registration of a plan of subdivision under which the airspace became part of the putative
servient tenement – whether easement over airspace is essential for the use of the putative dominant tenement – implied easement of necessity held to have arisen at the time of the registration of the plan of subdivision – easement not enforceable by current owners of putative dominant tenement
TORTS – trespass – trespass to land – title to sue – where owners corporation of a strata scheme is the registered proprietor of airspace which contains a view of Sydney Harbour and is located above an adjacent property – where airspace forms part of the common property of the owners corporation – owners corporation held to have standing to bring a claim for trespass to airspace TORTS – trespass – trespass to land – where owners corporation of a strata scheme is the registered proprietor of airspace which contains a view of Sydney Harbour and is located above an adjacent property – where it is not possible for owner of the adjacent property to access roof of that property without encroaching into the airspace – where agents of adjacent property owner enter into airspace on several occasions to effect repairs to and survey the roof for possible future development – defence of necessity established in relation to some but not all of the encroachments into the airspace – trespass held to have occurred on the other occasions – compensatory damages awarded TORTS – private nuisance – title to sue – whether the owners corporation of a strata scheme can bring a claim for private nuisance in respect of damages or loss allegedly suffered by individual lot owners in the strata scheme – owners corporation held not to have standing to bring a claim for private nuisance on behalf of lot owners
LAND LAW – covenants – restrictive covenants – application to modify or extinguish restrictive covenant pursuant to s 89 of the Conveyancing Act 1919 (NSW) – power to make orders – where proposed modification to restrictive covenant seeks in substance to create an easement – no power to create an easement under s 89 of the Conveyancing Act
LAND LAW – easements – court-imposed easements – Conveyancing Act 1919 (NSW), s 88K – proposed easement to access the airspace owned by putative servient tenement as reasonably necessary and on a temporary basis to repair, maintain and/or improve structures on the putative dominant tenement – whether reasonably necessary for the effective use or development of the putative dominant tenement – proposed easement reasonably necessary for effective use or development insofar as it permits access to the airspace as necessary and on a temporary basis for repairs and maintenance only
LAND LAW – easements – court-imposed easements – Conveyancing Act 1919 (NSW), s 88K – compensation – whether the lot owners in a strata scheme are entitled to be compensated for any loss or other disadvantage arising from an easement to be imposed over common property of owners corporation – lot owners are not persons having an estate or interest in the common property that is evidenced by an instrument registered in the General Register of Deeds or the register kept under the Real Property Act 1900 (NSW) – lot owners not entitled to compensation – Community Association DP 270447 v ATB Morton Pty Ltd (2019) 240 LGERA 32; [2019] NSWCA 83 applied
LAND LAW – easements – court-imposed easements – Conveyancing Act 1919 (NSW), s 88K – whether reasonable attempts have been made to obtain the easement or an easement having the same effect – where first attempts to obtain the easement or an easement having the same effect made only after the commencement of proceedings – where attempts made after the commencement of proceedings were sufficient in circumstances where lengthy correspondence between the parties about access, and the owner of the putative servient tenement was not prepared to grant an easement on any terms prior to receiving the first offer
PRACTICE AND PROCEDURE – applications – leave to amend pleadings – application to amend summons and statement of claim – application made on the last day of a four-day hearing – no adequate explanation for the delay in making the application – where the proposed amendment merely clarifies what was already implicit in the existing pleadings – application granted
LAND LAW – Torrens title – contents of Register – where restrictive covenant recorded in a previous folio of the dominant land – where that restrictive covenant is not recorded in current folio of dominant land – observations about whether the dominant and servient tenements’ title is subject to the restrictive covenant

 The Owners – Strata Plan 85044 v Murrell Murrell v The Owners – Strata Plan 85044 [2020] NSWSC 20 (01 October 2020)

LAND LAW – strata title – by-laws – whether by-law was a common property rights by-law – whether “special privileges” in s 142(2) of the Strata Schemes Management Act 2015 (NSW) includes purported exemption from compliance with the obligations imposed by s 108 – by-law cannot provide exemption from obligations imposed by s 108 – s 111 of the Strata Schemes Management Act 2015 (NSW) subordinate to s 108 – difference between “validity” and “of no force or effect”

 The Owners – Strata Plan No 63731 v B & G Trading Pty Ltd [2020] NSWCATAP 202 (30 September 2020)

LAND LAW – Strata title – contravention of by law – failure to comply with notice to remove animals – order for removal under s 157 of the Strata Schemes Management Act 2015
PRACTICE AND PROCEDURE – costs – s 60 of the Civil and Administrative Tribunal Act 2013 – no special circumstances

 Nelson v The Owners – Strata Plan No.49504 The Owners – Strata Plan No.49504 v Nelson [2020] NSWCATAP 194 (18 September 2020)

LANDLORD AND TENANT. Tenant vacates property and ceases to pay rent 13 months before end of term of lease. Rent for whole 13 months recoverable.
GUARANTEE. LIABILITY OF GUARANTORS. Former directors of tenant had given unlimited guarantee for tenant’s liabilities. Whether liability of guarantors affected by a change of position brought about by tenant’s dealings with a third party. INTEREST. Whether stipulated interest rate of 12% per annum in lease was a penalty.
CONTRACT. SALE OF BUSINESS AND CERTAIN ASSETS OF BUSINESS. Tenant agrees to sell business and certain assets of business to a third party (‘TP’). What assets sold. Whether parties to contract of sale could vary its terms.
EQUITY. EQUITABLE ASSIGNMENT. Whether an equitable assignment of tenant’s lease to TP. TP enters into possession of demised premises. Whether TP equitable assignee or weekly tenant.
COMPANY LAW. Whether TP or its director liable to landlord. Whether weekly tenancy between landlord and company, or landlord and director personally.
TRESPASS TO LAND. Removal of certain fittings from demised property by TP.
DAMAGES. MITIGATION. Whether landlord failed to mitigate its losses.
DAMAGES. QUANTUM. Whether “make good”, painting and carpet provisions in lease breached. Replacement costs.
CONTRACT. IMPLICATION OF TERMS.

 Pinaki Holdings Pty Limited v HSDCTLVMB Pty Limited & Anor Pinaki Holdings Pty Limited v David John Byrne & Anor [2019] NSWDC 855 (06 December 2019)

APPEAL — leave to appeal from decision of Consumer and Commercial Division of Tribunal
STRATA TITLE – order of Tribunal refusing inspection of financial information and accounting records of Owners Corporation – levies – levy register – privacy – exercise of discretion by Tribunal to refuse inspection of records – application of s 182 Strata Schemes Management Act 2015 – inspection of levy register granted

 Walker v The Owners – Strata Plan No 1992 [2020] NSWCATAP 192 (16 September 2020)

REAL PROPERTY – Conveyancing Act 1919 (NSW) s 37A – where real property was sold by the second defendant to the third defendant at an undervalue and proceeds distributed immediately – where transactions were completed soon after the second defendant became aware that the plaintiff was contemplating litigation against it for alleged building defects – whether alienations were made with intent to defraud creditors – HELD – the alienations were made with intent to defraud the plaintiff as a creditor

 The Owners Strata Plan 97121 v RCBS Devco Pty Ltd [2020] NSWSC 1247 (14 September 2020)

COURTS AND TRIBUNALS – jurisdiction – jurisdiction of Supreme Court and NSW Civil and Administrative Tribunal – Civil and Administrative Tribunal Act 2013 (NSW), Sch 4, cl 5(3) – where proceeding commenced in NSW Civil and Administrative Tribunal (“NCAT”) concerning the validity of an annual general meeting called by the managing agent of a strata scheme – where another proceeding is subsequently commenced in the Supreme Court raising substantially the same issues – whether the Court has jurisdiction to hear and determine those issues in light of the previously commenced NCAT proceeding – no jurisdiction to hear and determine those issues
PRACTICE AND PROCEDURE – transfer – transfer from Supreme Court to NSW Civil and Administrative Tribunal (“NCAT”) – where prayer for relief in summons claims an order for the managing agent of a strata scheme to deliver up to the chairman of the strata committee a list of owners and their contact details – where NCAT has jurisdiction to determine such claim – whether appropriate to transfer claim to NCAT for determination – proceeding transferred

 The Owners Corporation – Strata Plan 64807 v BCS Strata Management Pty Ltd [2020] NSWSC 1040 (7 August 2020)

STRATA TITLE – appeal from order of Tribunal ordering repayment of contributions for cost of heating water not used by some lot owners – held s 232 and other provisions of the Strata Schemes Management Act 2015 did not empower order – appeal allowed.

 The Owners – Strata Plan No 76830 v Byron Moon Pty Limited [2020] NSWCATAP 186 (07 September 2020)

BUILDING AND CONSTRUCTION — Negligence — Miscellaneous forms of negligent conduct — Right of support — Application of Conveyancing Act 1919 (NSW) s 177 and common law — Whether loss of support caused damage to adjoining property. TORTS — Negligence — Essentials of action for negligence — Whether there was a failure to take reasonable care — Whether any failure caused damage — Assessment of expert evidence. TORTS — Negligence — Proof of negligence — Res ipsa loquitur.
Legislation Cited: Civil Liability Act 2002 (NSW) ss 5D and 5E Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) Conveyancing Act 1919 (NSW) s 177 Corporations Act 2001 (Cth)

 Owners of Strata Plan No 30791 v Southern Cross Constructions (ACT) Pty Ltd (in liquidation) [2020] NSWCA 199 (31 August 2020)

APPEAL — NCAT — questions of law — leave to appeal from decision of Consumer and Commercial Division of NCAT
LAND LAW — strata title — common property — maintenance and repair of common property ─ relationship between ss 106 and 108 of the Strata Schemes Management Act 2015
EVIDENCE — expert evidence — whether Tribunal permitted to consider whether witness was an expert in proceedings in which NCAT Procedural Direction 3, Expert Evidence did not apply

 Loneragan v The Owners – Strata Plan No 16519 [2020] NSWCATAP 177 (25 August 2020)

APPEALS – from findings of fact – credibility of witnesses – limitation on appeal where findings of fact based on demeanour of witnesses – procedural fairness – bias or apprehension of bias – prior professional association as members of the same chambers – insufficient of its own – requirements to be satisfied
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – definition of dwelling – for use as a residence or for use in conjunction with a dwelling – time for assessment – quantum meruit – benefit when not the owner of the land

 Slaven v Bryant [2020] NSWCATAP 168 (07 August 2020)

LAND LAW – Strata title – functions of owners corporation – consent to development application affecting common property – power of Tribunal to make an order requiring an owners corporation to give consent to a development application affecting common property – test to be applied in determining whether to make an order requiring an owners corporation to give consent to a development application affecting common property
LANDLAW – Strata title – owners corporation – functions of owners corporation – issue of keys – whether the owners corporation of a mixed commercial and residential strata scheme should be directed to provide the owners of a commercial lot with keys giving access to utility meters and keys giving access to residential areas

 Dehsabzi v The Owners Corporation – Strata Plan No 83556 [2020] NSWCATAP 142 (16 July 2020)

LAND LAW – application for mesne profits – where defendant failed to provide possession pursuant to a notice of termination of a contract for sale – where defendant remained in possession for over two years – no issue of principle – mesne profits and interest ordered

 Hua Cheng International Holdings Group Pty Ltd (Receivers and Managers Appointed) (In Liquidation) v James Hui Xiao Xu [2020] NSWSC 922 (20 July 2020)

APPEAL – leave to appeal – exercise of discretion – leave refused – leave to adduce new evidence refused – strata scheme – common property defects – scope of works – rectification costs – whether strata levy excessive – costs of appeal

 Burbank Montague Pty Ltd v The Owners – Strata Plan No 85312 [2020] NSWCATAP 100 (2 June 2020)

APPEALS — Appeal from NSW Civil and Administrative Tribunal Appeal Panel — where Tribunal listed matter for hearing when plaintiffs’ legal representatives unavailable — where plaintiffs’ subsequent application for adjournment refused — where Appeal Panel refused leave to appeal — whether decision of Appeal Panel or original listing decision was legally unreasonable — whether each decision constituted denial of procedural fairness

 Rodny v Stricke [2020] NSWSC 800 (25 June 2020)

APPEALS – application by the owners corporation for leave to be legally represented where no relief claimed against it – leave granted for solicitor to appear as amicus curiae – application by the appellant for an extension of time in which to appeal where he is no longer an interested person – application dismissed

 Vojkovic v Bicioc [2020] NSWCATAP 128 (30 June 2020)

APPEAL – leave to appeal – leave refused – costs – exercise of discretion – withdrawal of application – no hearing on the merits – special circumstances – no question of law – no demonstrated error – no substantial miscarriage of justice – costs of the appeal

 Shoal Bay Developments Pty Ltd v Community Association DP 270468 [2020] NSWCATAP 115 (19 June 2020)

BUILDING AND CONSTRUCTION – contract – defects – whether defendant had opportunity to rectify works – whether plaintiffs failed to mitigate their loss
BUILDING AND CONSTRUCTION – consideration of incomplete works and defective works – use of Scott Schedule

 Cohen v Zanzoul trading as Uniq Building Group (No 2) [2020] NSWSC 838 (30 June 2020)

LAND LAW – real property – joint venture agreement to develop properties owned by parties – where plaintiff commenced proceedings seeking specific performance of the joint venture agreement – those proceedings settled – where plaintiff now seeks specific performance of settlement deed – where settlement agreement agreed to be a contract for sale of land – whether terms were implied into settlement agreement by s52A(2)(b) of Conveyancing Act 1919 (NSW) and Conveyancing (Sale of Land) Regulation 2017 (NSW) concerning land tax certificates – whether purported notice to complete and notice of termination of settlement agreement effective CONTRACTS – remedies – specific performance – whether plaintiff entitled to specific performance of settlement agreement
Legislation Cited:

 Bondi Road Development Pty Ltd v Selected Properties Pty Ltd [2020] NSWSC 845 (01 July 2020)

APPEALS – the question of law alone – application of statute to facts fully found – no reasonable prospect of leave to appeal being granted LANDLORD AND TENANT – whether facts found constituted a residential tenancy agreement – whether tenancy terminated – whether tenant in occupation for 20 years for purposes of s 85(4) of the Residential Tenancies Act 2010 (NSW)

 O’Keefe v Integral Corporate Property Pty Ltd [2020] NSWSC 737 (05 June 2020)

LAND LAW – strata title – by-laws – construction of by-law – effect of new by-law passed following the enactment of the Strata Titles Act 1973 (NSW) – exclusive use of common property – provision for amendment of, addition to or repeal of exclusive use by-law
LAND LAW – strata title – common property – whether orders for remediation of common property lacked specificity such as to amount to error of law – whether failure to take into account – relevant (and necessary) consideration – substantial loss of amenity in Lot owners losing direct access to the roof of the building – direct access to roof not part of original, approved development – no evidence that subsequent approval has been given – whether denial of procedural fairness where reliance placed on the term “usual undertaking as to damages” as defined in interim consent orders

 Pollak v The Owners – Strata Plan No 2834 [2020] NSWSC 784 (24 June 2020)

REAL PROPERTY – EASEMENTS – PARTICULAR EASEMENTS AND RIGHTS – OTHER EASEMENTS
REAL PROPERTY – TORRENS TITLE – EASEMENTS – CREATION – BY PLAN OF SUBDIVISION
INTERPRETATION – ADMISSIBILITY OF EXTRINSIC EVIDENCE IN RELATION TO INSTRUMENTS – WHEN EVIDENCE ADMISSIBLE – IN GENERAL

 KI SEAPORT PTY LTD (ACN 167 774 058) v ABSTRAXION PTY LTD (ACN 125 885 109) & ANOR [2020] SASC 113 (23 June 2020)

APPEAL – Residential Tenancy – whether relevant evidence overlooked by Tribunal

 MacPherson v Chow [2020] NSWCATAP 119 (23 June 2020)

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payments Act 1999 (NSW) – builder served payment claim – developers failed to serve payment schedule – builder obtained judgment pursuant to Act – developers’ appeal from judgment dismissed – proceedings based on construction contract pending in Technology and Construction List – late filing of cross-claim by developers – no explanation for late filing of cross-claim – developers seek further stay of judgment pending determination of main proceedings – developers claimed that they would be wound up if no stay were ordered and the cross-claim would not be adjudicated – primary judge dismissed application for a stay – whether any error of principle – whether principles in a “Grosvenor stay” applicable – Grosvenor Constructions (NSW) Pty Ltd v Musico [2004] NSWSC 344 considered – whether developers had demonstrated basis for stay of execution – leave to appeal refused

 TFM Epping Land Pty Ltd v Decon Australia Pty Ltd [2020] NSWCA 118 (19 June 2020)

CORPORATIONS – application for reinstatement of company – company formerly involved in development of home units – wound up and deregistered soon after completion of development – proceeds of sale of apartments transferred prior to winding up to another company – alleged defects in construction – purpose of reinstatement to join company as a defendant in existing Technology and Construction List proceedings – principles relating to reinstatement of a corporation discussed.

 The Owners of Strata Plan No 91349 v Australian Securities and Investments Commission [2020] NSWSC 685 (3 June)

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payments Act – where builder served payment claim and developer did not serve a payment schedule – where builder obtained summary judgment – where developer unsuccessfully appealed from that judgment – where developer now brings a cross claim in main proceedings – where developer sought a “Grosvenor stay” – where stay brought on basis of developer’s parlous financial position rather than builder’s financial position – whether stay sought truly a “Grosvenor stay” – whether any stay should be granted

 Vannella Pty Ltd Atf Capitalist Family Trust v TFM Epping Land Pty Ltd Plus other companies (29 May 2020)

LAND LAW – Strata Title – Claim of Nuisance – Strata
Schemes Management Act 2015, s 153 –.Meaning of nuisance – proof of nuisance by noise transmission within Strata Scheme Adequacy of reasons

 Chehelnabi v Gourmet and Leisure Holdings Pty Ltd [2020] NSWCATAP 102 (03 June 2020)

LAND LAW – Torrens title – The register – Order for issue of new certificate of title – Bankrupt refuses to provide certificate of title to trustee

 Harrison v Office of Registrar General [2020] NSWSC 626 (25 May 2020)

BUILDING AND CONSTRUCTION – Breach of statutory warranties in the Home Building Act 1989 (NSW), s 18B – Application s 48MA of the Home Building Act 1989 (NSW) to proceedings brought before the Supreme Court – Whether the Court will order specific performance of a building contract – Whether damages for loss of rent were in the parties’ reasonable contemplation at the time the contract was entered into – Distinction between difficulty of assessing damages and failure to take reasonable steps to prove damages suffered.

 Ippolito v Cesco [2020] NSWSC 561 (14 May 2020

APPEAL – appeal from Local Court – appeal from costs – costs assessment under s 352(1) of the Legal Profession Act 2004 (NSW) – review decision – continued application of the Legal Profession Act 2004 (NSW) – costs order in Local Court – saving and transitional provisions of the Legal Profession Uniform Law Application Act – jurisdiction of Court – cost assessment and review appeal decision – whether amended summons brought out of time – application to extend time – refusal to extend time
Legislation Cited:

 YU HUANG v THE OWNERS OF STRATA PLAN No 7632 – [2020] NSWSC 488 (5 May 2020)

APPEAL – Building and Construction –Functus officio – Failure to exercise jurisdiction

 Jayasooriah v Wisdom Properties Group Pty Ltd [2020] NSWCATAP 81 (08 May 2020)

APPEAL – meaning of error of law – whether permitted to raise new issue on appeal
RESIDENTIAL TENANCY – whether relationship between the parties comes within the definition of residential tenancy under the Residential Tenancies Act 2010 (NSW)

 Graham O’Keefe v Integral Corporate Property Pty Ltd [2020] NSWCATAP 76 (05 May 2020)

LAND LAW – conveyancing – contract for sale – off-the-plan purchase – purchase of home unit and carspace – where home unit constructed as an adaptable unit and carspace marked with symbol for disabled persons access – purchaser rescinds contract under rule in Flight v Booth – whether presence of symbol means that owner would not have exclusive use of carspace or gave rise to risk of unauthorised use – held that owner would have exclusive right to possess and enjoy carspace – held that owner would have right to remove or conceal the symbol – purchaser not entitled to rescind contract – contract remains on foot – no warrant for deposit to be returned to purchaser
MISLEADING OR DECEPTIVE CONDUCT – off-the-plan purchase of home unit and carspace – purchaser not informed that unit would be constructed as an adaptable unit and that carspace would be marked with symbol for disabled persons access – not shown that at time of contract vendor had that intention – no false or misleading representations made by vendor – conduct of vendor not misleading or deceptive or likely to mislead or deceive

 Smogurzewski v AIT Investment Group Pty Ltd [2020] NSWSC 490 (5 May 2020)

COSTS – costs’ assessment – late application to review certificate – application to Manager, Costs Assessment to extend time – whether assessment under Legal Profession Uniform Law Application Act 2015 (NSW) or Legal Profession Act 2004 (NSW) – error by Manager as to applicable law – whether error material – whether applicant demonstrated available grounds for review
CIVIL PROCEDURE – application to review decision of Manager, Costs Assessment – whether proceedings for judicial review or review under Uniform Civil Procedure Rules 2005 (NSW), r 49.19, 49.20 – nature of review
WORDS AND PHRASES – “proceeding” – whether appeal is a different proceeding from trial – transitional provision – Legal Profession Uniform Law Application Regulation 2015 (NSW), cl 59
WORDS AND PHRASES – “review” – Uniform Civil Procedure Rules 2005 (NSW), cl 49.19 – distinguished from judicial review under Supreme Court Act 1970 (NSW), s 69

 Voicu v The Owners-Strata Plan No 1624 [2020] NSWSC 296 (27 March 2020)

JUDICIAL REVIEW – remedies – materiality – review of appeal of costs assessment – incorrect application of repealed statute – application of the correct statute would have led to the same order – whether error jurisdictional – refusal of relief on discretionary grounds
COSTS – appeal – cost assessment – costs assessment appeal – repealed Legal Profession Act 2004 (NSW) applied instead of Legal Profession Uniform Law Application Act 2014 (NSW) – effect of savings provisions – Interpretation Act 1987 (NSW), s 30
COSTS – appeal to District Court – indemnity costs ordered – incorrect law relied on by successful party – correct law resulted in same substantive order – costs of successful party
WORDS AND PHRASES – “proceeding” – “proceedings to which the costs relate commenced” – Legal Profession Uniform Law Application Regulation 2015 (NSW), cl 59

 Voicu v The Owners-Strata Plan No 1624 [2020] NSWCA 52 (27 March 2020)

COSTS – costs on appeal – whether costs should be ordered in favour of successful party – whether public interest litigation – significance of any change in the law COSTS – costs at first instance – whether first instance costs order should be reversed following a successful appeal

 The_Owners__Strata_Plan_No._80412_v_Vickery_No_2_2019_NSWCATAP_97_23_April_2019

COSTS – costs on appeal – whether costs should be ordered in favour of successful party – whether public interest litigation COSTS – costs at first instance – whether Appeal Panel has power to make a first instance costs order on appeal

 The Owners – Strata Plan No 74835 v Pullicin (Costs) [2020] NSWCATAP 49 (17 March 2020)

COSTS – Civil and Administrative Tribunal Act 2013 s 60 – special circumstances – delay in filing evidence –
withdrawal of application shortly before hearing when application for adjournment refused – special circumstances established

 Rodny v Stricke [2020] NSWCATAP 20 (10 February 2020)

CONTRACTS — Termination — Repudiation of contract — where purchasers raised requisitions — where plausible contentions and vendors refused to address LAND LAW — Conveyancing — Contract for sale — Breach — Error or misdescription — Requisitions — Vendors’ obligations — Notices to complete — Purchasers’ remedies
ENVIRONMENT AND PLANNING — Heritage conservation — Protection of Aboriginal heritage — meaning of “Aboriginal object” — National Parks and Wildlife Act 1974 (NSW)

 Mehmet v Carter [2020] NSWSC 413 (17 April 2020) (Ward CJ In Eq) (17 April 2020)

APPEAL – Building and Construction – Home Building Act 1989 (NSW) – Building dispute – appellant ordered to pay compensation for defective building work – appellant denied that he was the builder – Home Owners Warranty insurance issued in the name of the appellant – appeal dismissed – no issue of principle

 D’Amico v The Owners-Strata Plan No 87635 [2020] NSWCATAP 65 (20 April 2020)

LAND LAW – strata title – by-laws – construction – special by-law conferring right upon lot owner to use part of common property for parking – whether right conferred in substitution for right of lot owner to park in existing parking lot – use of extrinsic circumstances as an aid to construction – cautionary approach – special by-law construed so that right conferred is not in substitution for owner’s right to park in existing lot

LAND LAW – strata title – obligations of owners and occupiers – whether parking by lot owner in parking lot causes a nuisance to other occupiers of lots – inconvenience also caused by presence of gardens on common property – parking on lot held not to amount to a nuisance – not an unreasonable interference with the rights of other owners or occupiers of lots – Strata Schemes Management Act 2015 (NSW), s 153(1)(a)

THE OWNERS STRATA PLAN No 2245 v ALLAN VENEY – [2020] NSWSC 134 (27 February 2020)

Costs – costs on appeal – special circumstances

 Turek v The Owners Strata Plan No 70871 [2020] NSWCATAP14 (29 January 2020)

ADMINISTRATIVE LAW — Freedom of information — Access to information – application for Tribunal to refuse to deal with administrative review application under s 109 of the Government Information (Public Access) Act 2009– access application seeking access to excluded information – access application invalid – Tribunal refused to deal with and dismissed administrative review application

 Fearnley v Health Care Complaints Commission [2020] NSWCATAD 30

LAND LAW – Strata title – Owners corporation – By-laws

 The Owners – Strata Plan No 91157 v Yoolee Holdings Pty Ltd Limited; Yoolee Holdings Pty Limited v The Owners – Strata Plan No 91157 [2020] NSWCATAP 6 (16 January 2020)

CIVIL PROCEDURE – notices to produce – client legal privilege – whether documents privileged under s 119 Evidence Act 1995 (NSW) – communications between plaintiff and witness where witness is also defendant in contingent proceedings – implied obligation of confidentiality where dominant purpose of communications is obtaining evidence

 The Owners Strata Plan 87265 v Saaib [2020] NSWSC 21 (30 January 2020)

DEVELOPMENT APPEAL – multi-dwelling housing in R2 zone – whether a lot is an internal lot – clause 4.6 written request to justify height exceedance – streetscape and built form

 Team Tech Pty Ltd v Sutherland Shire Council [2020] NSWLEC 1033 (24 January 2020)

Strata Title- appeal from order of Tribunal making an award of damages under sec 106(5) of the Strata Schemes Management Act 2015- held Tribunal lacked jurisdiction and power to make an award of damages Strata Title – on appeal held Tribunal arguably may have power to make order for payment of compensation under section 232 of the Strata Schemes Management Act – Proceedings stood over with liberty to apply
Legislation Cited: Strata Schemes Management Act 2015 Civil and Administrative Tribunal Act 2013 Strata Schemes Management Act 1996 Strata Schemes Management Regulation 2016 Interpretation Act 1987 No 15

 Shih v The Owners – Strata Plan No 87879 [2019] NSWCATAP 263 (31 October 2019)

Practice and procedure — Proceedings — Transfer of proceedings — Forum – application for summary dismissal or stay of proceedings – application for disclosure of details recorded on strata roll per Strata Schemes Management Act 2015 (NSW), ss 187, 188 and 232 – whether appropriate proceedings be transferred to NCAT – jurisdiction of Tribunal.

LAND LAW — Strata title — Owners corporation —Strata roll – application for production from building manager of contact details of owners recorded on strata roll – Schemes Management Act 2015 (NSW), ss 187, 188 and 232 – jurisdiction of Tribunal.

 The Owners – Strata Plan No 54026 v Phillipa Ternes [2019] NSWSC 1579 (12 November 2019)

DEVELOPMENT APPLICATION: change of use to detached dual occupancy and strata subdivision – existing secondary dwelling approved under State Environmental Planning Policy (Affordable Rental Housing) 2009 – contravention of numerical development standard for minimum lot size for dual occupancies – written request seeking to justify the contravention has not demonstrated that compliance with the development standard is unreasonable or unnecessary to justify the contravention.

NATHAN HEAZLEWOOD v BYRON SHIRE COUNCIL – [2019] NSWLEC 1429

COSTS – Indemnity for costs – whether Strata Corporation should indemnify plaintiffs for costs incurred in proceedings under Strata Schemes Management Act 1996 (NSW) (“SSMA”), ss 229 and 230 – distinction between grounds of appeal which advanced interests of Strata Corporation as a whole and those propounding a dispute between individual lot owners – whether Court’s powers under ss 229 and 230 extend to costs incurred in proceedings before New South Wales Civil and Administrative Tribunal.

COSTS – Party/party – costs incurred on preparing grounds of appeal attributed according to outcome on appeal.

Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 1120 (28 August 2019)

Strata management – compulsory strata manager – standing of lot owners to challenge by-law under SSMA s 15

MORGAN-JONES & UFERT v THE OWNERS STRATA PLAN No 15599 – [2019] NSWCATAP 187

STRATA SCHEMES MANAGEMENT – building new residential area in common property – whether authorised in accordance with s 65A of the Strata Management Act 1996 – whether discretionary refusal of relief argument available on appeal – point not run at first instance

  McDonnell v The Owners Strata Plan No 64191 [2019] NSWCATAP 172

 CONTRACT – building management agreement – whether and when agreement existed – terms of the agreement – incomplete or uncertain terms – statutory illegality – validity of contract under s67 of Strata Schemes Management Act 2015 (NSW)
ESTOPPEL – conventional estoppel – reply to defence of statutory illegality – whether defendant estopped from denying it entered into a binding agreement.
DAMAGES – claim for loss of profit – whether overhead expenses required to be taken into account proportionately to the business.
EVIDENCE – whether Jones v Dunkel inference available against defendant for failure to call evidence from attendees at meeting of content of discussions – reliability of Minute as business record of the defendant.
PRACTICE AND PROCEDURE – pleading requirements – whether assertion of incompleteness or uncertainty in contract needs to be pleaded – whether a party, in reply to unpleaded contention of incompleteness, may raise alterative case on date when agreement entered into.
COSTS – party/party – proper construction of Heads of Agreement concerning costs – whether agreement to share equally the costs of the referees was subject to agreement as how costs of the proceedings were to be resolved

  Premium Building Management Pty Ltd v The Owners – Strata Plan No 69204 [2019] NSWDC 312

 Costs

The Owners Strata Plan No. 2000 v Bylinska [2019] NSWCATAP 151 (19 June 2019)

CIVIL PROCEDURE — Cross-vesting — Transfer to Federal Court — Special federal matter – whether Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 6 required proceedings to be transferred to the Federal Court as a “special federal matter” – whether proceedings “in bankruptcy” under Bankruptcy Act, s 27 – distinction between exercising jurisdiction “in bankruptcy” and recognising the effect of provisions of the Bankruptcy Act – whether proceedings a “special federal matter” where trustee in bankruptcy was joined as a party although made no claim, no party sought exercise of statutory powers under the Bankruptcy Act or an order declaring for or against the title of the trustee in bankruptcy to the relevant share in the company.

CIVIL PROCEDURE — Cross-vesting — Transfer to Federal Court — Special federal matter – whether retention of proceedings would have been justified under Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 6(3), had proceedings constituted a “special federal matter”– relevance and weight of “convenience of the parties” under s 6(3) – where two sets of proceedings raised parallel issues and proceedings could only be heard together in Supreme Court as Federal Court has no jurisdiction to entertain the appeal from the Tribunal – where retention of the proceedings would likely result in a more efficient determination of the dispute – whether retention would have been justified where it would not just be convenient to the parties but would promote the better administration of justice.

CORPORATIONS — Directors and officers — Appointment, removal and retirement of directors — whether sole shareholder of proprietary company validly appointed himself director by shareholders resolution – where share transferred to sole shareholder in his capacity as trustee prior to his impending bankruptcy – whether upon sole shareholder’s bankruptcy the power to appoint a director which attached to the share vested in his trustee in bankruptcy under Bankruptcy Act, ss 58(1), 116(2)(a) – nature of equitable interest in the share retained by the sole shareholder during bankruptcy and nature of equitable interest acquired by his trustee in bankruptcy pursuant to Corporations Act, ss 1072B, 1072C, 1072F – whether sole shareholder’s bankruptcy restricted exercise of power of appointment under Corporations Act, s 201G – whether Corporations Act, s 201F(3) awards trustee in bankruptcy exclusive power to appoint a director during shareholder’s bankruptcy and subsequent to his discharge – grant of statutory power under s 201F(3) facultative not exclusive and must be construed in light of company members’ freedom to adopt principles in company constitution for the appointment of directors.

CORPORATIONS — Directors and officers — Appointment, removal and retirement of directors – whether, if invalid, appointment of sole director of proprietary company should have been validated under Corporations Act, s 1322(4) – whether dispensing power would have been available if 201F(3) had exclusive effect – operation of requirements under s 1322(6) – consideration of “essentially of a procedural nature” where no lawful procedure for carrying out statutory requirement – whether “just and equitable” to validate appointment where trustee in bankruptcy took no action to appoint director and no person other than purported sole director asserted interest in the company – whether substantial injustice caused to party opposing claims brought by company in Tribunal proceedings – whether validation of appointment would cause company or beneficiaries “substantial injustice”.

CORPORATIONS — Directors and officers — representation – validity of solicitor’s retainer where retained by director whose appointment was purportedly invalid – whether retainer valid under Corporations Act, s 201M – examination of 201M and its historical predecessors alongside construction of s 1322 – whether retainer may be ratified by shareholders resolution – whether company was “competent principal” when without a director – whether majority of general meeting can ratify legal proceedings brought without authority of the company – whether general meeting carries power to make management decisions.

CORPORATIONS — Directors and officers — representation – whether solicitor’s retainer should be validated under s 1322(4) – whether “just and equitable” to make order and whether opposing party in proceedings suffered “substantial injustice” by solicitors acting for the company.

ADMINISTRATIVE LAW – administrative tribunals – statutory appeals from administrative authorities to courts – appeal from decision of Civil and Administrative Tribunal (NSW) under Civil and Administrative Tribunal Act 2013 (NSW), s 83(1) – whether Tribunal ought have adjourned proceedings to allow NSW Supreme Court to resolve challenge to retainer and validity of director’s appointment – scope and limits of Tribunal’s powers – whether Tribunal had power to make orders sought by virtue of jurisdiction to make “ancillary decisions” or dismiss proceedings that are “frivolous or vexatious or otherwise misconceived”.

CIVIL PROCEDURE — Stay of proceedings — Inherent power — Abuse of process – Court may intervene and stay proceedings on basis of an abuse of process where challenge to corporate plaintiff’s authority to bring proceedings – whether and when defendant has right to challenge plaintiff’s authority –
– challenge to authority not a substantive defence to plaintiff’s claim but brought by notice of motion –consequences of distinction for further conduct of proceedings – judicial discretion to entertain application and appropriate circumstances to do so – Chancery rule of practice that Court ordinarily adjourn proceedings to allow opportunity for company to ratify proceedings or apply for validating order under Corporations Act, s 1322.

CIVIL PROCEDURE — Stay of proceedings — Inherent power — Abuse of process – power to award costs where proceedings brought by corporate plaintiff without authority – juridical basis and appropriate exercise of such power – whether costs order properly made against solicitor for corporate plaintiff bringing proceedings without proper authority.

Preston v Diaspora Holdings Pty Ltd; Diaspora Holdings Pty Ltd v Owners Corporation of Strata Plan 68608 [2019] NSWSC 651

Strata management – by-laws and covenants – interpretation – maintenance and repairs

Chen v Owners Strata Plan No. 55792 [2019] NSWCATAP 135 (04 June 2019)

COSTS – party/party – general rule that costs follow the event – building dispute – allegedly defective building work – whole dispute referred to referee – referee’s report adopted – agreement that defendants pay plaintiff’s costs unless defendants can show it was unreasonable for plaintiff not to allow defendants to effect repairs

BUILDING AND CONSTRUCTION – costs – whether it was unreasonable for plaintiff not to allow defendant back in to effect repairs

The Owners – Strata Plan 89041 v Galyan Pty Ltd [2019] NSWSC 619 (28 May 2019)

ADMINISTRATIVE LAW – Judicial review – Construction of Home Building Act 1989 (NSW), s 48K – Jurisdiction of Civil and Administrative Tribunal of NSW – Whether the Tribunal had jurisdiction to deal with claim for an amount exceeding $500,000 – Whether the Appeal Panel fell into error in refusing the plaintiff’s application to transfer proceedings to the Supreme Court – Refusal to conduct judicial review under s 34 of the Civil and Administrative Tribunal Act 2013 (NSW)

PRACTICE AND PROCEDURE – Civil procedure – Application for leave to appeal from a decision of the Appeal Panel of the New South Wales Civil and Administrative Tribunal – Civil and Administrative Tribunal Act 2013 (NSW), s 83 – Appeal on a question of law – Test to be applied by the Tribunal when considering a transfer application based on jurisdiction – Test to be applied by the Tribunal when granting leave – Considerations relevant to an application for adjournment – Whether the Tribunal failed to properly consider cl 6(1) Sch 4 of the Act

The Owners Strata Plan 83405 v Ralan (Culworth) Pty Limited [2019] NSWSC 578 (20 May 2019)

CIVIL PROCEDURE – Pleadings – Striking Out – whether form and content of pleadings defective – embarrassing pleadings – insufficient or inadequate particulars – whether reasonable cause of action disclosed

The Owners-Strata Plan 91349 v Hallmark Construction Pty Ltd [2019] NSWSC 591 (22 May 2019)

DEVELOPMENT APPLICATION – strata subdivision – conciliation conference – agreement between the parties – development standard for minimum size of original lot – orders

Lenton v Sutherland Shire Council [2019] NSWLEC 1229 (24 May 2019)

LAND LAW – strata title – leasehold strata scheme – enforcement of statutory warranties – whether holder of a 99-year lease a “successor in title” under the Home Building Act 1989 (NSW)

The Owners – Strata Plan No 91322 v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2019] NSWCA 89 (24 May 2019)

TORT – defamation – email to residents of strata building – defences under ss 25, 31 and 33 Defamation Act 2005 (NSW) – defence of qualified privilege at common law – reply to attack – malice – damages – whether aggravated damages should be awarded – mitigation of damages – award of $120,000

Raynor v Murray [2019] NSWDC 189 (17 May 2019)

Strata – consent orders – jurisdictional error – denial of procedural fairness – right to inspect documents protected by legal professional privilege – extending time under section 41 of the Civil and Administrative Tribunal Act 2013

The Owners Strata Plan No. 2000 v Bylinska [2019] NSWCATAP 116 (06 May 2019)

APPEAL – strata scheme – noise transmission – compliance by tenant with by-laws – objective test – whether function conferred or imposed by legislation or by-laws – whether error of law

FELETTI v EALES – [2019] NSWCATAP 100

APPEALS – no question of law – leave to appeal refused – no question of principle
STRATA TITLES – claimed irregularities in conduct of strata scheme – meetings – poll vote or secret ballot

McGinn v Shoebridge [2019] NSWCATAP 107 (26 April 2019)

COSTS – retail lease – adequacy of reasons – special circumstances – procedural fairness

Strata 778 Pty Ltd v Enright [2019] NSWCATAP 106 (26 April 2019)

COSTS – rr 38 and 38A Civil and Administrative Tribunal Rules 2014 – discretion – party unsuccessful on application for leave to appeal – usual order – successful party entitled to costs

The Owners – Strata Plan No. 80412 v Vickery (No 2) [2019] NSWCATAP 97 (23 April 2019)

Appeals – jurisdictional error – proceedings for the imposition of a civil penalty – appeals to the Tribunal or to a Court

The Owners – Strata Plan No 6097 v Placanica [2019] NSWCATAP 85 (12 April 2019)

TORTS – miscellaneous torts – right of support – application of s 177 of the Conveyancing Act 1919 (NSW) – whether loss of support caused damage to adjoining property
NEGLIGENCE – essentials of action for negligence – whether there was a failure to take reasonable care – whether any failure caused damage
NEGLIGENCE – apportionment of responsibility and damages – onus of proof
CIVIL PROCEDURE – pleadings – amendment – joinder of plaintiffs who are otherwise statute barred

The Owners – Strata Plan 30791 v Southern Cross Constructions (ACT) Pty Ltd (in liq) (No 2) [2019] NSWSC 440 (18 April 2019

JUDICIAL REVIEW – late application to quash orders of Land and Environment Court granting development consent – substantial unexplained delay – weakness of case sought to be advanced – application to extend time refused

PRACTICE – parties – appeal against refusal of development consent – where development contemplated obtaining access across neighbouring land – whether neighbouring landowner a necessary party to appeal – whether Land and Environment Court lacked jurisdiction to impose easement in separate proceedings commenced while appeal was pending – Land and Environment Court Act 1979 (NSW), s 40, considered

PRACTICE – parties – whether lot owners of land subject to Community Land Development Act 1989 (NSW) necessary parties to application for easement over Community Association’s land – whether other persons with registered easements over the land sought to be burdened by the proposed easement were necessary or proper parties – effect of non-joinder in circumstances where third parties were informed of application and requested not to be joined – UCPR r 6.23 and Land and Environment Court Act 1979 (NSW), s 40(3), considered

REAL PROPERTY – easements – power of court to impose easement – whether easement reasonably necessary for effective use and development of dominant tenement – whether error of law in formulation or application of test – whether Shi v ABI-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293 qualified Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 – whether error of law in imposing condition upon number of daily truck movements – Conveyancing Act 1919 (NSW), s 88K – Land and Environment Court Act 1979 (NSW), s 40

Community Association DP270447 v ATB Morton Pty Ltd [2019] NSWCA 83

TREES (DISPUTES BETWEEN NEIGHBOURS) – Part 2 application – damage to property – sewer – Part 2A application – whether the trees form a hedge – severity of sunlight obstruction – severity of view obstruction – whether views and sunlight were previously available to the applicant

Fryday v The Owners – Strata Plan No 15039 [2019] NSWLEC 1150 (01 April 2019)

BUILDING AND CONSTRUCTION – s 177 of the Conveyancing Act 1919 (NSW) – duty of care “not to do anything that removes the support to any other land – whether encompasses omissions – where owner holds non-delegable duty of care.

NEGLIGENCE – breach of duty – reasonable-precautions – whether failed causation established – whether recurrent costs reasonable.

PRACTICE AND PROCEDURE – defendants’ failing to adduce evidence.

The Owners SP No 8075 v Esh Group Pty Ltd [2019] NSWDC 93

COSTS – appeal withdrawn – whether special circumstances exist for an award of costs

Dehsabzi v The Owners – Strata Plan No. 83556 [2019] NSWCATAP 65 (25 March 2019)

STRATA SCHEME – legal test for an owners corporation not functioning satisfactorily pursuant to s.237(3)(a) of the Strata Schemes Management Act – legal test for an owners corporation failing to perform one or more of its duties pursuant to s.237(3)(c) of the Strata Schemes Management Act

APPEAL – whether findings that the Scheme was functioning satisfactorily, that agreements were not harsh or unconscionable or for an improper purpose were manifestly unreasonable and against the weight of evidence – whether the Tribunal failed to consider facts, submissions and matters put forward so as to deny the appellants procedural fairness

Anderson v The Owners – Strata Plan No. 61034 [2019] NSWCATAP 61 (19 March 2019

LAND LAW — Easements — Whether easements created by conveyances in 1839 bind present-day registered proprietors
CIVIL PROCEDURE — Court administration — Court powers — Whether successor in title can reopen ex parte proceedings in which orders were made that affect property succeeded to

Arcidiacono v The Owners – Strata Plan 61233 [2019] NSWCA 46 (14 March 2019)

COSTS – s 60 Civil and Administrative Tribunal Act, 2013 – special circumstances – new evidence first produced on appeal – no conduct of parties responsible for failure to provide evidence at original hearing – parties raising irrelevant and unnecessary issues.

Davenport v The Owners – Strata Plan 536; The Owners – Strata Plan 536 v Davenport (No 2) [2019] NSWCATAP 55 (13 March 2019)

COSTS – specified gross sum costs order – where defendant made unmeritorious applications in the course of the proceedings – where defendant sent numerous inappropriate or irregular communications to the Court and to plaintiffs’ solicitors – baseless allegations of fraud or serious misconduct – whether the defendant’s conduct increased the costs of the proceedings – whether the defendant’s conduct suggests a costs assessment likely to be delayed and protracted – quantum of specified gross sum costs order – no challenge to evidence of quantum – specified gross sum costs order made

The Owners-Strata Plan 47027 v McGinn (No 2) [2019] NSWSC 219 (06 March 2019)

INJUNCTIONS – Injunction to restrain mortgagee’s power of sale – application brought the afternoon before scheduled auction – where notice of default had been issued under s 57(2)(b) Real Property Act 1900 (NSW) and s 92 Conveyancing Act 1919 (NSW) – whether the notice had been properly served – whether the notice was misleading or invalid – where the notice did not express an immediate intention to exercise mortgagee’s power of sale – notice neither misleading nor invalid – whether the lender waived its rights by earlier representations – doctrine of election – no evidence of inconsistent rights – no waiver – balance of convenience – injunction refused

MORTGAGES AND SECURITIES – mortgages – duties, rights and remedies of mortgagee – power of sale – scope of application of National Credit Code – whether notice should have been given under s 88 National Credit Code – debtor not a natural person nor strata corporation – mortgage a genuine commercial arrangement – no notice required under s 88

Yusofzai v Andask Pty Ltd [2019] NSWSC 124 (28 February 2019)

LAND LAW – strata title – validity of by-laws – by-law granted exclusive rights to certain lot owners to use parts of common property for car parking – by-law purportedly repealed in 1999 by special resolution of Owners Corporation – no written consent obtained from lot owners concerned prior to repealing the by-law as required by Strata Schemes Management Act 1996 (NSW) (“SSM Act”), s 52(1)(a) – Change of By-Laws recorded on title within two years – proceedings commenced in 2018 to challenge validity of repeal – effect of SSM Act, s 52(3) – conclusive presumption after two years that all conditions and preliminary steps precedent to the making of a repealing by-law have been complied with and performed – requisite consent of owners is a condition or preliminary step precedent to the making of a repealing by-law – proceedings dismissed

Khadivzad v The Owners – Strata Plan 53457 [2019] NSWSC 157 (26 February 2019)

APPEAL – application for leave to appeal against a costs order by Local Court of New South Wales – two grounds of error of law – one ground of error of fact

Kerswell v Owners of Strata Plan No 71241 [2019] NSWSC 119 (20 February 2019)

STRATA – family interest with majority control of strata scheme – responsibilities, obligations and duties of an owners corporation in respect of common property – variation of orders made at first instance – order for maintenance and repair of common property adjacent to the minority interest’s lots – order for contractor (not connected with majority interest) to clean common property

The Owners-Strata Plan No 14593 v Soares [2019] NSWCATAP 35 (06 February 2019)

TAXES AND DUTIES – Land Tax – principal place of residence exemption – strata lots in the same ownership – strata lots beneficially owned by the same persons

MCFADDEN v CHIEF COMMISSIONER OF STATE REVENUE – 2019 NSWCATOD 4 –

STRATA SCHEMES – unauthorised alteration to common property – obligation on Owners Corporation to reinstate common property – damages for breach of duty to repair – by-law regulating security access to building – by-law limiting access devices and areas of common property to which access is given – not harsh, unconscionable or oppressive – jurisdiction to award damages for loss arising from exercise of power in respect of issuing security access devices.

John Maait Properties Pty Ltd v The Owners – Strata Plan No 50396 [2019] NSWCATAP 26 (23 January 2019)

PRACTICE AND PROCEDURE – whether Tribunal erred in failing to join a party, and subsequently dismissing proceedings

Feedback Deli Pty Ltd v The Owners – Strata Plan No 36613 [2019] NSWCATAP 6 (02 January 2019)

LAND LAW – strata title – by-laws – disturbing the peaceful occupation of another lot – objective test – breach not established – whether landlord under obligation to ensure tenants comply with by-laws – whether Tribunal has jurisdiction to award damages for breach of by-laws – whether Tribunal has jurisdiction to restrain harassment by one lot owner of tenants of another lot owner

Feletti v Eales; Eales v Feletti [2018] NSWCATCD 66 (02 November 2018)

STRATA SCHEMES – Common property – resolution to authorise work to alter common property – obligation to repair – s 106(3) of the Strata Schemes Management Act 2015 (NSW) – power to determine repairs and maintenance are inappropriate – circumstances in which demolition is authorised – unauthorised alterations.

MEETINGS – loss of records – presumption of regularity – available inferences of past conduct based on proven facts.

Davenport v The Owners – Strata Plan 536;; The Owners – Strata Plan 536 v Davenport [2018] NSWCATAP 301 (19 December 2018)

Appeal – Strata Schemes – Costs of the appeal- special circumstances

Guo v The Owners Strata Plan No 70067 (No 2) [2018] NSWCATAP 303 (19 December 2018)

TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to wall – removal of tree

The Owners – Strata Plan No. 11351 v Burton [2018] NSWLEC 1617 (19 November 2018)

STRATA SCHEMES – Orders sought to direct owners corporation to obtain advice and take action on various issues – Whether breach established – Whether exercise of discretion by Tribunal to make orders sought established.

STRATA SCHEMES – Appointment of compulsory strata manager – Whether criteria under s 237 (3) Strata Schemes Management Act 2015 established.

Hoare and Ors v The Owners-Strata Plan No 73905 [2018] NSWCATCD 45 (28 August 2018)

Animals
Consent to Keeping

Validity of by-law

STRATA SCHEMES MANAGEMENT ACT – order for removal of dog – assistance animal within the meaning of the Disability Discrimination Act, 1992 (Cth) – whether concession made that dog was not an assistance animal – competing evidence concerning conduct and management of dog – relevance of subsequent evidence regarding proposed training

Cahn v The Owners – Strata Plan No 586 [2018] NSWCATAP 234 (9 October 2018)

LAND LAW – strata titles – proceedings by lot owner against owners corporation – lot owner obtains declaratory relief establishing a limited right apart from the strata titles legislation to use part of the common property – the successful plaintiff ordered to pay the costs of the unsuccessful defendant – whether that result compelled by strata titles legislation – whether the taking of the proceedings was not justified because the strata titles legislation made adequate provision for the enforcement of the plaintiff’s rights or remedies

PROCEDURE – costs – departure from the general rule that costs follow the event – provision of strata titles legislation requiring that successful plaintiff be ordered to pay costs of unsuccessful defendant – whether applicable

  EB 9 & 10 Pty Ltd v The Owners Strata Plan 934 [2018] NSWCA 288 (28 November 2018)

COSTS – Rule 38(2)(b) – meaning of the expression “the amount claimed or in dispute is more than $30,000” – scope of operation of the rule – special circumstances – challenge to finding that claimant had arguable case

The Owners Corporation Strata Plan No. 63341 v Malachite Holdings Pty Ltd [2018] NSWCATAP 256

Residential tenancy – renovation work carried out by Body Corporate resulted in dust and other substances containing excessive lead levels entering premises – expert reports – premises cleaned – held rent abated for a period of 4 days.

Gravina v Ruehl [2018] NSWCATAP 267

COSTS – relevant costs rule on appeal where applicants claimed that respondent had unreasonably refused to repeal by-laws – r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) does not apply – s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) does apply

Gleeson v The Owners – Strata Plan No 48226 (No 2) [2018] NSWCATAP 268 (14 November 2018

APPEAL – leave to appeal – interlocutory order striking out solicitor’s claim to recover legal costs referable to period before costs disclosure made – submission that subsequent costs disclosure removed barriers to suing for costs for prior services – such submission at odds with statutory language and intent – no exceptional circumstances or well-based apprehension of miscarriage of justice warranting leave to appeal

Ian Jones v The Owners Strata Plan No 69008 [2018] NSWCA 272 (15 November 2018)

APPEAL – Strata Schemes – Appellant sought declarations as to s 104 of the Strata Schemes Management Act – power of Tribunal

Guo v The Owners Strata Plan No 70067 [2018] NSWCATAP 260

APPEAL – whether Tribunal below erred in the exercise of its discretion to refuse an adjournment application made at the commencement of the hearing below – no error of the exercise of discretion established

Charitable Islamic Association of Beirut City Incorporated v The Owners Strata Plan No 75506 [2018] NSWCATAP 207

Strata Schemes Management – By-Law – challenge to validity – blanket prohibition on pet ownership

Yardy v Owners Corporation SP 57237 [2018] NSWCATCD 19

APPEALS – Adequacy of reasons – whether the Civil and Administrative Tribunal failed to take into account “key” considerations raised by the appellant at the first hearing

RES JUDICATA – whether the doctrines of res judicata and issue estoppel bind the Consumer and Commercial Division of the Civil and Administrative Tribunal from hearing a strata schemes dispute in circumstances where a Strata Schemes Adjudicator had determined a similar issue in 2006

Gleeson v The Owners – Strata Plan No 48226 [2018] NSWCATAP 204 (31 August 2018)

BUILDING AND CONSTRUCTION – ss 18B, 18D of the Home Building Act 1989 (NSW) – statutory warranties as to quality of home building work – where plasterboarding, air conditioning and acoustic installation work in apartments is defective – whether the defendant builder did defective building work – the defendant suspended building work under the Building and Construction Industry (Security of Payment) Act 1999 (NSW) before being excluded from the site and not being allowed to complete the work – whether the defects are ‘temporary disconformities’ and therefore not in breach of the implied warranties contained in s 18B – loss or damage occasioned by defective building work is to be assessed by reference to established contractual principles of breach and causation – whether the plaintiffs’ loss was caused by the defendant’s building work –
STATUTORY CONSTRUCTION – s 18D(1) – meaning of the phrase ‘the same rights as the person’s predecessor in title in respect of the statutory warranty’ – whether s 18D gives a successor in title no rights where loss was not suffered by the predecessor in title caused by breaches of s 18B –
DAMAGES – rule against double compensation – the plaintiffs entered into a Deed of Settlement with the developer’s home building insurer and received payment in respect of defective work to the apartments – concurrent claim – claims made against the defendant were made in the same terms as those against the developer’s insurer – whether plaintiffs have already been compensated for the loss which they allege was caused by the defendant;
HELD plaintiffs failed to establish that defective work the subject of their claim was done by the defendant and the extent of the defects attributable to the defendant – defective work was not a temporary disconformity – the developer suffered no loss because it broke the chain of causation between any defective work done by the defendant and damage suffered by the developer, by taking the work out of the hands of the defendant – the right of the plaintiffs to sue the defendant for breach of the implied warranties is unaffected by the position between the developer and the defendant under their building contract

Owners of Strata Plan 80458 v TQM Design & Construct Pty Ltd [2018] NSWSC 1304 (23 August 2018)

CIVIL PROCEDURE – self-represented litigant – summons – appeal from Local Court – whether the plaintiff has complied with the Registrar’s orders – transcript not yet available but ordered – Uniform Civil Procedure Rules 2005 (NSW) – rule 50.14 – evidence before the lower court that the plaintiff wishes to be considered on appeal

Kerswell v Owners of Strata Plan No. 71241 [2018] NSWSC 1309 (16 August 2018)

PRACTICE AND PROCEDURE – pleadings – application for leave to file cross claim – leave to file cross claim refused because proposed claims untenable and bound to fail – clear that legal easements were validly created in 1839 – entitlement to set aside orders made ex parte resides in the person not given the opportunity to be heard – right is personal not proprietary in nature – cross-claimants lack standing to seek to set aside orders made in earlier proceedings

The Owners – Strata Plan No 61233 v Arcidiacono [2018] NSWSC 1260

LAND LAW – strata title – owners corporation – meetings of owners corporation – validity of general meeting – resolutions of meeting invalid where chairperson not validly elected and not all lot owners invited to attend or vote – injunction in aid of a statutory right – proper administration of owners corporation interfered with – defendant restrained from holding herself out or acting as a member of strata committee unless and until duly elected

The Owners-Strata Plan 47027 v McGinn [2018] NSWSC 1230

PRACTICE AND PROCEDURE – applications – default judgment – defamation – failure to file defence – failure to plead essential element in cause of action – application dismissed
PRACTICE AND PROCEDURE – applications – default judgment – discretionary considerations – applicant using default judgment as a tactic to pressure defendant in circumstances where it is known that proceedings will be defended
PRACTICE AND PROCEDURE – applications – strike out application – defamation – statement of cross-claim struck out for not pleading publication
PRACTICE AND PROCEDURE – jurisdiction – transfer of proceedings – transfer defamation cross-claim from Equity Division to Common Law Division
PRACTICE AND PROCEDURE – costs – special costs orders – indemnity costs – costs payable forthwith – order for indemnity costs to be payable forthwith refused where both applicant and cross-defendants responsible for bringing and prolonging hopeless application

Strata Plan 47027 v McGinn [2018] NSWSC 1228

PRACTICE AND PROCEDURE – transfer of proceedings – whether proceedings should be transferred to NSW Civil and Administrative Tribunal – dispute concerning rights and obligations under strata titles legislation – jurisdiction of Tribunal to determine dispute – more appropriate forum – where perceived advantage in pursuing claims in the Court no longer exists – proceedings transferred

The Owners-Strata Plan No 21372 v Banovic (No 2) [2017] NSWSC 734

CIVIL PROCEDURE — Admissions — Withdrawal — Civil Procedure Act NSW (2005)

OWNERS – STRATA PLAN 72739 v ALLIANZ AUSTRALIA INSURANCE LTD – 2017 NSWSC 1118 –

STRATA SCHEMES MANAGEMENT ACT 2015 – Reallocation of unit entitlements – requirement for valuation of lots – insufficiency of evidence – opportunity to provide evidence – obligation of Tribunal to advise where evidence insufficient

Brett v Warhaftig [2018] NSWCATAP 167 (11 July 2018)

DEVELOPMENT APPEAL: Two- lot strata subdivision of approved dual occupancy – interpretation of clause detailing minimum subdivision allotment size – whether a cl. 4.6 variation request is required.

Kelly v Randwick City Council [2018] NSWLEC 1322 (03 July 2018)

CONTRACT – indemnity by defendant to plaintiff for loss suffered as a result of claim made by owners corporation under residential building insurance policy – proper construction of indemnity – whether condition precedent to liability established – whether plaintiff issued policy of the kind referred to in indemnity – whether plaintiff was obliged to indemnify owners corporation for loss now claimed against defendant;
BUILDING AND CONSTRUCTION – whether defects in residential building were structural defects – whether defects complained of by owners corporation were in a structural element – whether defects were structural defects that were likely to result in physical damage to any part of the building – proper construction of reg 57AC of Home Building Regulation

AAI Ltd t/as Vero Insurance v Kalnin Corporation Pty Ltd; Kalnin Corporation Pty Ltd v AAI Ltd t/as Vero Insurance [2017] NSWSC 548

COSTS – dispute in Strata Scheme – operation of s 90 of Strata Schemes Management Act 2015 (NSW) – undertaking to indemnity costs to Lot Owners by one Lot owner as basis for plaintiff’s actions – orders made preventing defendant from contributing to plaintiff’s costs in capacity as Lot Owner.

The_Owners_Strata_Plan_No_68976_v_Nicholls_No_2_2018_NSWSC_471_19_April_2018

TREES (DISPUTES BETWEEN NEIGHBOURS) – damage – whether damage to retaining wall caused by tree – whether all or part of retaining wall requires rectification – whether retaining wall damage can be rectified without removing the tree – apportionment of costs of rectification

  The Owners – Strata Plan No 7655 v The Owners – Strata Plan No 50081 [2018] NSWLEC 1222 (20 April 2018)

TREES (DISPUTES BETWEEN NEIGHBOURS) — Retaining wall — Age and deterioration of the wall

Owners of Strata Plan 4334 v Linkara Pty Ltd – [2018] NSWLEC 1197 (18 April 2018)

LAND LAW — Strata title — Common property — Whether owners corporation could develop common property in a way which would impede owner’s reasonable access to lot used as car space — Strata Schemes Development Act 2015 (NSW) s 28 — Strata Schemes Management Act 2015 (NSW) ss 106 and 153
LAND LAW — Declarations — Utility — Whether sufficiently defined dispute

EB 9 & 10 Pty Ltd v The Owners SP 934 [2018] NSWSC 464 (12 April 2018)

PRACTICE AND PROCEDURE – strata renewal plan – necessity of position papers prior to mediation in proceedings under s 179 Strata Schemes Development Act 2015 – such position papers to be provided in a timely manner prior to mediation – respondent (dissenting owner) sought security for costs of proceedings – applicability of terms ‘defendant’ and ‘plaintiff’ in the context of the Strata Schemes Development Act 2015 – applicability of term ‘security for costs’ in such proceedings

The Owners – Strata Plan 49574 v Scorpio Holdings (Aust) Pty Limited & Ors [2018] NSWLEC 54 (18 April 2018)

STRATA – minor works – works affecting common property, unauthorised works.

Owners Corporation SP 22607 v Yang [2018] NSWCATCD 3 (24 January 2018)

DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders

The Owners – Strata Plan No 17759 v City of Sydney Council [2018] NSWLEC 1141 (03 April 2018)

APPEAL AND REVIEW – judicial review – review of order in criminal jurisdiction of District Court – jurisdictional error – whether District Court judge decision that he lacked power to relieve lot owner in strata scheme of levy imposed by owners corporation infected by jurisdictional error
CRIMINAL LAW – effect of annulment of conviction – where applicant convicted in 1993 and 1994 of contraventions of orders made by Strata Titles Board pursuant to Strata Titles Act 1973 (NSW) in proceedings commenced by body corporate – where on conviction applicant fined and ordered to pay court costs, professional costs and witness expenses – where convictions annulled in 2015 pursuant to Crimes (Appeal and Review) Act 2001, s 4 – where owners corporation determined not to pursue original informations which were dismissed – whether applicant could recover costs alleged to have been incurred consequent upon convictions
CRIMINAL LAW – effect of annulment of conviction – where applicant convicted in 1993 and 1994 of contraventions of orders made by Strata Titles Board pursuant to Strata Titles Act 1973 (NSW) in proceedings commenced by body corporate – where convictions annulled in 2015 pursuant to Crimes (Appeal and Review) Act 2001, s 4 – where owners corporation determined not to pursue original informations which were dismissed – where owners corporation incurred legal costs in seeking advice as to whether to pursue original informations – where owners corporation raised a levy on owners of lots in strata scheme including applicant to recover costs of legal advice – whether applicant could be relieved of levy pursuant to either Strata Titles Act 1973 (NSW), s 150, or Strata Schemes Management Act 1996 (NSW), ss 229 and 230
STRATA TITLES – whether lot owner entitled to be relieved of paying levy raised by owners corporation – Strata Titles Act 1973 (NSW), s 150 – Strata Schemes Management Act 1996 (NSW), ss 229 and 230
WORDS AND PHRASES – “enforcement action” – Crimes (Appeal and Review) Act 2001 (NSW), s 10(1)

Bessemer v Owners of Strata Plan 6925/35054 [2018] NSWCA 57 (26 March 2018)

DEVELOPMENT APPLICATION: boarding house; strata subdivision of site to create two lots and common property, existing heritage listed dwelling; provision of parking; whether there is sufficient parking spaces for potential future commercial use of existing dwelling; whether an accessible parking space should be provided; amenity.

Pomering v Hawkesbury City Council [2018] NSWLEC 1146 (23 March 2018)

CONTRACTS – BUILDING AND CONSTRUCTION CONTRACT – APPLICATION OF STATUTORY PROVISIONS – First defendant (a builder) constructed four townhouses for second defendant (a developer) – Property subsequently came into possession of plaintiff (owners’ corporation) which became “successor in title” to developer and the developer became statutorily liable for any breach by the builder Claim proceeded ex parte.

The Owners of Strata Plan 84879 v Ex Parte JMA Developments Pty Ltd & Anor [2017] NSWDC 424

LAND LAW – Co-ownership – statutory trust for sale – whether proceedings should be adjourned to allow co-owner time to obtain taxation rulings – costs – whether costs of respective co-owners should be paid out of proceeds of sale

McDonald v Ellis [2018] NSWSC 278 (7 March 2018)

CIVIL PROCEDURE – application by builder and developer for leave to bring cross claim against principal certifying authority – whether cross claim maintainable at law – whether principal certifying authority owes duty of care to first plaintiff – whether any liabilities which exist are coordinate – where prior questions of law unable to be quickly and easily resolved – where no prejudice to the principal certifying authority exists aside from costs and inconvenience – leave granted

CIVIL PROCEDURE – offer of compromise accepted between first plaintiff and third defendant – whether judgment should be entered now in accordance with UCPR 20.27 – where issue of potential prejudice or estoppel may arise if judgment is entered – no prejudice in delaying entry of judgment until trial – judgment not entered

Owners Corporation SP 80609 v Paragon Construction (NSW) Pty Limited [2018] NSWSC 266 (02 March 2018)

APPEALS – STATUTORY TRIBUNALS – appeal on a ground raising “question of law” – discussion of grounds in that context and principles – no arguable question of law raised – leave refused

STRATA SCHEMES – proceedings before Strata Schemes Adjudicator concerning whether works were “in keeping with rest of building” – appeal to NCAT – appeal from NCAT

The Owners Strata Plan No 68976 v Nicholls [2018] NSWSC 270 (06 March 2018)

PRACTICE AND PROCEDURE – whether to join dissenting owner and/or supporting purchaser/developer to proceedings – designation of respondents – name of Applicant and title of proceedings amended – name of dissenting owner amended – whether conciliation under s 34 of the Land and Environment Court Act 1979 applicable.

The Owners – Strata Plan 6877 v; 2 – 4 Lachlan Avenue Pty Ltd [2018] NSWLEC 13 (19 February 2018)

PRACTICE AND PROCEDURE – whether to join dissenting owner and/or supporting purchaser/developer to proceedings – designation of respondents – name of Applicant and title of proceedings amended – name of dissenting owner amended – whether conciliation under s 34 of the Land and Environment Court Act 1979 applicable.

The Owners – Strata Plan 6666 v Kahu Holdings Pty Ltd [2018] NSWLEC 15 (19 February 2018)

TREES (DISPUTES BETWEEN NEIGHBOURS); hedge; sunlight and views; severe obstruction of views; previous pruning in breach of permit; applicant to contribute to cost of pruning; orders for annual pruning.

Champion v Strata Plan 42576; McKeon v Strata Plan 42576 [2018] NSWLEC 1063 (13 February 2018)

Costs – special circumstances, proceedings dismissed as incompetent, cost claimed where no legal representation at hearing, exercise of discretion where substantive issues raised on appeal not resolved

The Owners – Strata Plan No. 47027 v Peter Clisdell Pty Ltd (No. 2) [2018] NSWCATAP 46 (15 February 2018)

COSTS – no point in principle

Dix Gardner Pty Ltd v The Owners – Strata Plan 82053 (No 2) [2018] NSWSC 92 (13 February 2018)

APPLICATION – order for easement for drainage – conciliation conference – agreement between the parties – orders

Lees v The Owners Strata Plan 52751 [2018] NSWLEC 1053 (09 February 2018)

Breach of statutory duty to maintain and repair common property, causation, jurisdiction of Tribunal to award damages.

Mullen v Owners Corporation SP 15342 [2017] NSWCATCD 97 (16 October 2017)

DEVELOPMENT APPLICATION: change of use of an existing dwelling and secondary dwelling to semi-detached dwellings and strata subdivision; whether consent required for strata subdivision; lot width; streetscape/character

Cranney v The Council of Camden [2018] NSWLEC 1036 (02 February 2018)

NSW CIVIL AND ADMINISTRATIVE TRIBUNAL – COSTS – when enabling legislation provides for the making of a costs order – discretion to award costs under the Strata Schemes Management Act 1996 – principles as to when fixed sum costs orders are appropriate

The Owners – Strata Plan No 82306 v Anderson [2018] NSWCATCD 1

Appeal and cross appeal from proceedings referred by adjudicator under section 164 Strata Schemes Management Act 1996 (NSW) (now repealed) to NCAT – Costs application before the Tribunal – whether jurisdiction and/or power to make a costs order in referral proceedings.

Owners Corporation SP 80412 v Vickery [2018] NSWCATAP 29 (24 January 2018)

Statutory interpretation- Strata Schemes Management Act- jurisdiction of the Tribunal to determine claim for damages for breach of statutory duty, meaning of “settle a dispute or complaint”, meaning of “about” when defining disputes by reference to subject matter, retrospective operation of statutory cause of action, limitation on amount that may be awarded for damages.

The Owners Strata Plan No 30521 v Shum [2018] NSWCATAP 15 (08 January 2018)

APPEAL – Strata scheme management – keeping of animals – consent – consent unreasonably withheld – no issue of principle

Strata Committee of Owners Corporation SP 75226 v Ison [2018] NSWCATAP 2 (03 January 2018)

REAL PROPERTY – strata scheme for a residential and commercial building – application of Strata Schemes Management Act 1996 (NSW) – effect of non-compliance with notice requirements for a meeting of the executive committee specified in Sch 3, cl 6 – whether resolution passed by Executive Committee in breach of ss 65A and 80A – whether Executive Committee has authority to instruct legal representatives to settle legal proceedings

PROCEDURE – consent orders – whether consent orders may be set aside – orders already entered – circumstances in which orders may be set aside – whether court has a discretion to set aside orders when basis for setting aside the order has been established

AGENCY – ostensible authority – whether senior counsel has ostensible authority to enter settlement agreement – whether parties acted in reliance on representation of authority – whether no question of ostensible authority as a result of the principle that estoppel does not operate against a statute

The Owners Strata Plan No 57164 v Yau [2017] NSWCA 341 (21 December 2017)

PRACTICE AND PROCEDURE – leave to appeal from summary dismissal of tortious claims for malicious prosecution and abuse of process – where relevant proceedings have not terminated – where immediate purpose for bringing proceedings was proper – whether manifest error or question of principle warranting leave – no such error or principle

Eliezer v The Owners – Strata Plan No 51682 [2017] NSWCA 325

APPEAL – appeal against a Commissioner’s decision on a question of law – proposed strata subdivision of a proposed dual occupancy – development standard fixing minimum subdivision lot size – proposed subdivision will result in lots less than minimum size – development standard does not apply to “subdivision of individual lots in a strata plan” – whether proposed subdivision is such a subdivision – proposed subdivision of Torrens title lot into individual lots by registration of a plan as a strata plan – not subdivision of individual lots in a strata plan – development standard applicable to proposed subdivision

DM Longbow Pty Ltd v Willoughby City Council 2017 NSWLEC 173 11 December 2017

Home Building – late expert evidence taking claim beyond Tribunal jurisdictional limit – exercise of procedural discretion

Ralan (Culworth) Pty Ltd v Owners Corp SP 83405 – [2017] NSWCATAP 223 – BC201710628

TREES [NEIGHBOURS] : Damage to property; potential injury; rectification; apportionment

Proprietors Strata Plan 55820 v Proprietors Strata Plan 20738 [2017] NSWLEC 1699

DEVELOPMENT APPLICATION: demolition of existing dwellings, erection of multi unit housing development, lot consolidation and 7 lot strata subdivision; conciliation conference; agreement between the parties; orders

Powani v Lake Macquarie City Council [2017] NSWLEC 1695 (05 December 2017)

Strata Schemes Management Act – Appeal from decision of the Tribunal – Leave to Appeal – no question of principle

Felcher v The Owners – Strata Plan No 2738 [2017] NSWCATAP 219 (29 November 2017)

COSTS – where plaintiff achieved only partial success on application for leave to amend – where defendants substantially successful – where plaintiff accepted some order for costs should be made in favour of defendants – whether defendants should be permitted to have such costs assessed immediately – whether Court should otherwise order under relevant Practice Note – practical effect of permitting assessment of costs forthwith

The Owners – Strata Plan 76841 v Ceerose Pty Ltd (No 2) [2016] NSWSC 1629

TREES [NEIGHBOURS] : Damage to property; retaining wall; apportionment; Consent orders

The Owners Corporation Strata Plan 53347 v Ideal Beachside Pty Ltd [2017] NSWLEC 1627 (08 November 2017)

STATUTORY CONSTRUCTION – enforcement proceedings concerning an order of a Strata Schemes Adjudicator made before repeal of the Strata Schemes Management Act 1996 (NSW) – effect of repeal of the 1996 Act – effect of transitional provisions of Strata Schemes Management Act 2015 (NSW) and Interpretation Act 1987 (NSW) – right to bring enforcement proceedings, as if the Strata Schemes Management Act 1996 (NSW) had not been repealed, preserved by s 30 of the Interpretation Act – Sch 3 cl 9 of Strata Schemes Management Act 2015 is merely facultative and does not establish an exclusive regime

The Owners Strata Plan No 82306 v Anderson [2017] NSWCATCD 85 (31 October 2017)

JOINDER APPLICATION – Notice of Motion – Application by Strata Plan 70267 of the ‘Yellow House’ to be joined to the proceedings

Whitehouse Developments Pty Ltd v Council of City of Sydney – [2017] NSWLEC 1512

STRATA TITLES- due adoption and registration of By-Laws- effect of Model By-Laws under Strata Schemes Management Act 1996 (NSW) and Strata Schemes Management Act 2015 (NSW)- effect of oral agreements to vary- absence of licence to use the common property or any proposed change of relevant by-law- effect of ss 131(2) and 149(3) of Strata Schemes Management Act 2015 (NSW).
APPEALS- consideration of evidence by Tribunal below- what constitutes proper consideration- Appeal dismissed

Eadie v Harvey [2017] NSWCATAP 201 (18 October 2017)

TREES [NEIGHBOURS]: Hedge; obstruction of sunlight and views from three adjoining units in a strata plan; severity of obstruction; quality of evidence.

Cleary & anor v Hemmes Property Pty Ltd; Crehan v Hemmes Property Pty Ltd; Latimer v Hemmes Property Pty Ltd [2017] NSWLEC 1577 (12 October 2017)

TREES [NEIGHBOURS] : Damage to property, potential injury; compensation; sufficiency of evidence of causation and notification

The Owners Strata Scheme 51500 v The Owners Strata Scheme 4234 2017 NSWLEC 1576

Invalidity of special by-law prohibiting illegal uses including short term lettings – by-law capable of operating to prohibit or restrict the devolution of a lot or a transfer, lease, mortgage or other dealing related to a lot.

Estens_v_Owners_Corporation_SP_11825_Medium_Neutral_Citation_2017_NSWCATCD_63

REAL PROPERTY — Strata title — General matters — whether Ch 5 of the Strata Schemes Management Act 1996 (NSW) has the effect of excluding a claim for common law damages — construction of s 226 of the Strata Schemes Management Act 1996 (NSW) — whether appellant has a right or remedy arising “apart from this Act” — whether appellant’s right to sue at common law is preserved by s 226

Estens_v_Owners_Corporation_SP_11825_Medium_Neutral_Citation_2017_NSWCATCD_63

Jurisdiction of Tribunal to award damages for breach of statutory duty, strictness of duty to repair and maintain, exculpations from duty to repair and maintain, burden of proof, definitions of lot property/common property

Rosenthal_v_The_Owners_-_SP_20211_2017_NSWCATCD_80_29_August_2017

COSTS – Appeal on multiple issues – appellant succeeds on one issue – not a case for the allocation of costs between issues – Calderbank letter – in all circumstances reasonable for applicant not to accept

BCS_Strata_Management_Pty_Ltd_v_The_Owners_Corporation_SP_61759_-_2016_NSWCATAP_275

CORPORATIONS – membership, rights and remedies – class rights – where plaintiff’s shares in company constitute a class under Corporations Act, s 246B – where company proposes to resolve to convert land and building it owns from company title scheme to strata title scheme – where plaintiff seeks a quia timet injunction to enjoin resolution – where proposed injunction leaves considerable room for interpretational argument – where defendant undertakes not to register a strata scheme that violates s 246B – where strata scheme potentially consistent with plaintiff’s class rights – held, injunction refused.

John_Melick_Investments_Pty_Limited_v_Harbourview_Mansions_Pty_Limited_-_2017_NSWSC_1132

PROCEDURE — Order for summary dismissal — Alternative order that statement of claim be struck out.

Ellezer_v_The_Owners_Strata_Plan_No_51682_2017_NSWSC_783_15_June_2017

Indemnity costs – whether the applicant had prospects of success at the relevant time

Owners_Corporation_SP_79417_v_Trajcevski_No.2_2017_NSWCATAP_173_16_August_2017

PUBLIC ROAD – dedication at common law – unmade road – land described as road in subdivision created before 1906 – acceptance and use by public – maintenance by Council
STATUTORY CONSTRUCTION – s224(3) Local Government Act, 1919 – freestanding operation not subject to s327 – not opening or dedication of road
STATUTORY CONSTRUCTION – s327 Local Government Act – scope and operation – inapplicable to exercise of s224(3) power
ADVERSE POSSESSION – exclusive physical control – intention to possess as against whole world – not established
STANDING – entitlement of body corporate to sue – adjoining land

The_Owners__Strata_Plan_No_5225_v_Registrar_General_of_New_South_Wales_2017_NSWSC_886_26_July_2017

APPEAL: Consent orders – development application for hotel and restaurant in a heritage item – impacts on the public’s view of artwork on adjoining heritage item – strata subdivision of hotel rooms – amenity impacts

Whitehouse_Developments_Pty_Ltd_v_The_Council_of_the_City_of_Sydney_-_2017_NSWLEC_1391

LOCAL COURT APPEAL – jointly and severally liable – duty of care – duty of care to subsequent purchaser – vulnerability – assumption of reliance – appeal upheld

Dix_Gardner_Pty_Ltd_v_The_Owners__Strata_Plan_82053_2017_NSWSC_940

CIVIL PROCEDURE – Court of Appeal – stay of costs order pending appeal – where judgement is reserved

The_Owners_Strata_Plan_Number_57164_v_Yau_-_2017_NSWCA_176

PROCEDURE – uniform civil procedure – amendment application – where proceeding transferred from District Court to Supreme Court – where by filing of Technology and Construction List Statement application made to amend pleading to add additional claim – whether sufficient prejudice to refuse amendment from loss of viable and realistic cross-claims against third parties – whether basis for imposing monetary limits on existing pleaded claims – no question of principle

Owners Corporation Strata Plan 76841 v Ceerose Pty Ltd [2017] NSWCA 140

COSTS – application for security for costs – principles– statutory provision — security for costs sought from an Owners Corporation – strata scheme – threshold question – whether there is reason to believe the plaintiff will be unable to pay the costs of the defendant if ordered to do so – net negative asset position – no real property – limited cash resources – levy history and performance – reasonable time to pay – discretionary factors – prospects for success – impecuniosity – risks – contribution of defendants – quantum – directions

The Owners – Strata Plan 64415 v Serman [2017] NSWSC 806

PRACTICE AND PROCEDURE – transfer of proceedings – whether proceedings should be transferred to NSW Civil and Administrative Tribunal – dispute concerning rights and obligations under strata titles legislation – jurisdiction of Tribunal to determine dispute – more appropriate forum – where perceived advantage in pursuing claims in the Court no longer exists – proceedings transferred

The_Owners-Strata_Plan_No_21372_v_Banovic_No_2_2017_NSWSC_734

PRACTICE AND PROCEDURE – application for stay of orders of single Judge pending appeal – Judge refused Applicant leave to file amended pleading and made associated orders – Applicant has filed Notice of Intention to Appeal only – no grounds of appeal identified – stay refused

Eliezer_v_The_Owners_-_Strata_Plan_No_51682_and_Ors_-_2017_NSWSC_581

STATUTORY CONSTRUCTION – whether appeal rights abolished or affected by repeal of the statute creating those rights – effect of transitional provisions of Strata Schemes Management Act 2015 (NSW) on appeal rights under s 177 of Strata Schemes Management Act 1996 (NSW) – Sch 3 Cl 7 operates to preserve appeal right under s 177
APPEAL RIGHTS – whether appeal rights accrue when proceedings are commenced or when an order is made – appeal rights “inhere” from commencement of proceedings
WORDS AND PHRASES – meaning of “proceedings” – meaning of “determined or finalised” – proceedings have been “determined” if a decision or order has been made – proceedings have not been “finalised” before rights of appeal have been exhausted

Wrigley_v_Owners_Corporation_SP_53413_2017_NSWCATAP_100

DEVELOPMENT APPLICATION; conciliation conference; agreement between the parties; orders

Owners_SP_No._40012_v_Woollahra_Council_-_2017_NSWLEC_1214

Development Application

Equity_Site_Holdings_Pty_Ltd_v_Inner_West_Council_-_2016_NSWLEC_1585

Real Property

The_Owners___Strata_Plan_No_72381_v_The_Owners___Strata_Plan_No_71067_-_2016_NSWSC_1857

Duty to maintain – premises in strata scheme

Dimunova_v_Vega_2017_NSWCATAP_5_6_January_2017

Development Application; alterations and additions to an existing residential flat building, building height, design, view impacts, amenity impacts concerning air circulation, light and parking.

Owners_Corporation_Strata_Plan_56631_v_Council_of_the_City_of_Sydney_-_2017_NSWLEC_1007

COSTS – offers of compromise – “walk away” offer made by defendants – offer not accepted by plaintiff – defendants obtain order no less favourable than terms of offer – whether offer triggers prima facie entitlement to indemnity costs.

James_v_The_Owners___Strata_Plan_No_11478_No_2_-_2016_NSWSC_1701

STRATA SCHEMES – Application for strike out – Whether Strata Schemes Management Act operates so that plaintiff has no remedy in common law nuisance

McElwaine_v_The_Owners___Strata_Plan_No_75975_-_2016_NSWSC_1589

COSTS – where plaintiff achieved only partial success on application for leave to amend – where defendants substantially successful – where plaintiff accepted some order for costs should be made in favour of defendants – whether defendants should be permitted to have such costs assessed immediately – whether Court should otherwise order under relevant Practice Note – practical effect of permitting assessment of costs forthwith

The_Owners___Strata_Plan_76841_v_Ceerose_Pty_Ltd_No_2_-_2016_NSWSC_1629

STATUTORY INTERPRETATION – meaning of “change in the permitted land use” in s 183(2)(b) of the Strata Schemes Management Act 1996 – meaning of “the same validity and effect as it would have had if the error or omission had not occurred” in s 12(1)(c) of the Real Property Act 1900 (NSW)

Sahade_v_Gilster_2016_NSWCATAP_245_

DEVELOPMENT APPLICATION: demolition of existing dwelling and construction of a dual occupancy and strata subdivision; conciliation conference; agreement between the parties; orders

Charalambous_v_Waverley_Council_-_2016_NSWLEC_1551

Contract – strata management – payment of moneys contrary to instructions – measure of damages

BCS_Strata_Management_Pty_Ltd_v_Owners_Corporation_Strata_Plan_61759_-_2016_NSWCATAP_257

BUILDING AND CONSTRUCTION – claim for failure to perform work and defective work – withdrawal by defendant’s solicitor – defects in residential building work result of builder’s work – cost of rectification – cost of further home warranty insurance – no question of principle

The_Owners_-_Strata_Plan_No_65968_v_National_Alliance_Constructions_Pty_Limited_-_2017_NSWSC_62

STRATA-appeal from Adjudicator’s decision ;extent of common property; liability for repairs.

Davis_v_The_Owners___Strata_Plan_No_63429_-_2017_NSWCATCD_7

 STRATA APPEAL – admission of new evidence – works to be undertaken by Owners Corporation, maintenance or new works – amendment of motions

Lipscher_and_Ors_v_The_Owners__Strata_Plan_No_30995_-_NSWCATCC_2_6_January_2017_

Trees and Neighbours

Pearson_v_The_Owners___Strata_Plan_No_12969_-_2017_NSWLEC_1110

CONTEMPT – civil contempt – failure to comply with orders of the Court – alleged contemnor seeks permanent stay of contempt proceedings – tutor previously appointed for alleged contemnor – whether alleged contemnor fit to face charge of contempt – whether requirements of fitness to plead test in R v Presser [1958] VicRp 9; [1958] VR 45 satisfied – contempt proceedings permanently stayed

The_Owners_Strata_Plan_21372_v_Baniovic_2017_NSWSC_177_28_February_2017

Quite enjoyment – circumstance where landlord libable for third party actions NSWCATAP 223 (7 October 2016)

Abdel-Messih_v_Mao_-_2016_NSWCATAP_223

Costs NSW 1397 (30 September 2016)

Kimber_v_The_Owners_Strata_Plan_No._48216_-_2016_NSWSC_1397

Appeal/Security for Costs NSWLEC 1425 (20 September 2016)

M__J_Conradt_Pty_Ltd_and_M__J_Conradt_Investment_Trust_v_Georges_River_Council_2016_NSWLEC_1425_

Interest NSWSC 1348 (22 September 2016)

Meriton_Apartments_Pty_Limited_v_The_Owners_of_Strata_Plan_No._72381_No._3_-_2016_NSWSC_1348

Tort NSWDC 217 (16 September 2016)

Allen_v_Strata_Plan_54664_-_2016_NSWDC_217

Administrative Law NSWSC 1291 (15 September 2016)

Colbert_v_MacDonald__Ors_-_2016_NSWSC_1291

Referees/Damages – NSWSC 1127

The_Owners___Strata_Plan_No_77475_v_Walker_Group_Constructions_Pty_Ltd__Anor_-_2016_NSWSC_1127

Practice and Procedure – NSWSC 1134

Owners_Corporation_SP_72521_v_Walsh_-_2016_NSWSC_1134

Costs – NSWSC 943

The_Owners_of_Strata_Plan_76888_v_Walker_Group_Constructions_Pty_Ltd_No_2_-_2016_NSWSC_943

Costs – NSWSC 965

The_Owners_-_Strata_Plan_No_84741_v_Nazero_Constructions_Pty_Limited__Ors_Costs_-_2016_NSWSC_965

Appeal – NSWCATAP – 167

Manbead_Pty_Ltd_v_The_Owners_-_Strata_Plan_No_87635_-_2016_NSWCATAP_167

DEVELOPMENT CONSENT: deeming of a development consent from a building approval granted in 1962 – residential flat building with common laundry/toilet facilities – whether the owners of Lot 15 are entitled to a complying development certificate approving the removal of the common facilities and/or entitled to exclude other lot owners from using those facilities – whether the complying development certificate authorising those works is valid – failure to obtain “owner’s consent” from owners’ corporation – failure of Council to inspect before approval.

The_Owners_Strata_Plan_432_v_Seddon_2015_NSWLEC_92

Costs – NSWCATAP 177

The_Owners_Strata_Plan_No._84751_v_Karimbla_Construction_Services_Pty_Ltd_No_2_-_2016_NSWCATAP_177

Trees – Neighbours – NSWLEC 1294

Griffiths__anor_v_Owners_Corporation_Strata_Plan_9383_-_2016_NSWLEC_1294

Cross Vesting – NSWSC 973

Davies_bhnf_McRae_v_Body_Corporate_for_the_Phoenician_-_2016_NSWSC_973

Cost Orders NSW 896

Tan_v_The_Owners_Strata_Plan_22014_No_3_-_2016_NSWSC_896

Practice NSWSC 909

The_Owners___Strata_Plan_65111_v_Meriton_Apartments_Pty_Ltd_-_2016_NSWSC_909

Appeal NSW NSWCATAP 145

The Owners Strata Plan No 84751 v Karimbla Construction Services Pty Ltd [2016] NSWCATAP 145

Contract/Equity NSWSC 819

Meriton Apartments Pty Limited v The Owners of Strata Plan No. 72381 (No. 2) [2016] NSWSC 819

Deeds – NSW 832

The Owners – Strata Plan No 84741 v Nazero Constructions Pty Limited & Ors [2016] NSWSC 832

Costs NSWCATAP 119

Agdiran v Owners Corporation SP83475 (No.2) [2016] NSWCATAP 119

Costs – NSWCATAP 115

Gleeson__Anor_t_as_ANT_Building_v_The_Owners___Strata_Plan_No_81893_-_2016_NSWCATAP_115

Evidence/Construction of Deed/Betterment/Section 48MA – NSWCATAP 113

Brodyn_Pty_Ltd_v_Owners_Corporation_Strata_Plan_73019_-_2016_NSWCATAP_113

Practice NSWSC 650

The_Owners___Strata_Plan_65111_v_Meriton_Apartments_Pty_Ltd_-_2016_NSWSC_650

Judgements and Orders NSWSC 558

The_Owners___Strata_Plan_74602_v_Eastmark_Holdings_Pty_Ltd_Eastmark_Holdings_Pty_Ltd_v_The_Owners___Strata_Plan_74602_-_2016_NSWSC_558

Building and Construction NSWSC 541

The_Owners_of_Strata_Plan_76888_v_Walker_Group_Constructions_Pty_Ltd_-_2016_NSWSC_541

Procedure NSWSC 549

The_Owners_Strata_Plan_No_66375_v_Suncorp_Metway_Insurance_Ltd_-_2016_NSWSC_549

Practice and Procudure NSWSC 512

Brad_s_on_Tap_Plumbing_Pty_Ltd_v_The_Owners___Strata_Plan_No_56443_-_2016_NSWSC_512

Judgement and Orders NSW 496

The_Owners___Strata_Plan_74602_v_Eastmark_Holdings_Pty_Ltd_Eastmark_Holdings_Pty_Ltd_v_The_Owners___Strata_Plan_74602_-_2016_NSWSC_496

Building and Construction NSWSC 375

The_Owners___Strata_Plan_No._69743_v_TRT_Constructions_Pty_Ltd_-_2016_NSWSC_375

Building and Construction NSWSC 387

The_Owners___Strata_Plan_No_83297_v_Eastern_Construction_Group_Pty_Ltd_-_2016_NSWSC_387

Strata and Community Schemes – Costs NSWCATCD 8

Blair_v_The_Owners_Strata_Plan_No_71656_and_Mitchell_2016_NSWCATCD_8_20_January_2016

Damages – NSWSC 231

Strata_Plan_79215_v__Nazero__Constructions_Pty_Ltd_2016_NSWSC_231

Disputes between Neighbours NSW

Owners_Strata_Plan_31839_v_Alafaci__anor_2016_NSWLEC_1083

Appeal NSW

Agdiran_v_Owners_Corporation_SP83475_2016_NSWCATAP_58

Building Construction – NSWSC 162

Owners_Strata_Plan_78465_-v-_M_D_Constructions_Pty_Ltd_2016_NSWSC_162

Administrative Law – Penalties for breaching interim order of an Adjuicator

Owners_Corporation_-_Strata_Plan_41710_v_Lee_2015_NSWCATCD_151

Administrative Law

Thadani_v_Owners_Corporation_Strata_Plan_46619__2015_NSWCATCD_153

Costs

The_Owners___Strata_Plan_70030_v_Decon_Australia_No_2_-_2016_NSWSC_21

Practice and Procudure

The_Owners___Strata_Plan_70030_v_Decon_Australia_-_2016_NSWSC_19

Appeal/Error of Law/Fresh Evidence

Gleeson__Anor_t_as_ANT_Building_v_The_Owners___Strata_Plan_No_81893_-_2016_NSWCATAP_27_1

Special By-Law

The_Owners-Strata_Plan_No_6534_v_El_Khouri_-_2015_NSWCATCD_147

By-law – Failure to comply

The_Owners_Strata_Plan_No_6534_v_El_Khouri_-_2015_NSWCATCD_145

Res Judicata

The_Owners_-_Strata_Plan_No_51033_v_Kumar_and_Srivastava_2015_NSWCATCD_137

Strata Schemes Management Act