Boutenko v The Owners Strata Plan No 77480 - [2022] NSWCATCD 166

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Boutenko v The Owners - Strata Plan No 77480 [2022] NSWCATCD 166
Hearing dates: 29 June 2022
Date of orders: 12 August 2022
Decision date: 12 August 2022
Jurisdiction: Consumer and Commercial Division
Before: G Sarginson, Senior Member
Decision:
1. Pursuant to s 237 (1) (a) of the Strata Schemes Management Act 2015 (NSW) O’Neill Strata Management Pty Ltd is appointed compulsory strata managing agent of The Owners-Strata Plan No 77480 to exercise all functions of the owners corporation including the functions in s 237 (2) (a) of the Strata Schemes Management Act 2015 (NSW) for a period of two (2) years from the date of the making of this order.
2. The application is otherwise dismissed.

Catchwords:
LAND LAW---Strata title---Duty of owners corporation to repair common property---Breach---Damages---Limitation period---Knowledge of loss---Whether applicant within limitation period---s 106 (6) Strata Schemes Management Act 2015 (NSW)
LAND LAW---Strata title---Compulsory appointment of strata manager---s 237 Strata Schemes Management Act 2015 (NSW)---Principles applicable
LIMITATION OF ACTIONS---Strata title--Statutory cause of action---Failure to repair common property---Knowledge of loss---s 106 (6) Strata Schemes Management Act 2015 (NSW)

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW)
Home Building Act 1989 (NSW)
Strata Schemes Management Act 2015 (NSW)
Trade Practices Act 1974 (Cth)

Cases Cited:
Arsalan v Rixon [2021] HCA 40; (2021) 395 ALR 390
Clutha v Millar [2002] NSWSC 362
Endre v The Owners-Strata Plan No 17771 [2019] NSWCATAP 93;
Gisks v The Owners-Strata Plan No 6743 [2021] NSWCATCD 14
Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425
Hoare and Ors v The Owners-Strata Plan No 73905 [2018] NSWCATCD 45 t
Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313
Maple v The Owners-Strata Plan No 8950 [2021] NSWCATCD 108 at
Murphy v Overton Investments Pty Ltd [2004] HCA 3; (2004) CLR 388
S & G Homes Pty Ltd t/as Pavilion Homes v Owen [2015] NSWCATAP 190
Sabouni v Revelop Building and Development Pty Ltd [2021] NSWSC 31
Shih v The Owners Strata Plan No 87879 [2019] NSWCATAP 263
State of Western Australia v Wardley Australia Ltd [1991] FCAFC 314; (1991) 30 FCR 245
Tezel v The Owners-Strata Plan No 74232 [2022] NSWCATAP 149
The Owners-Strata Plan No 30621 v Shum [2018] NSWCATAP 15
The Owners-Strata Plan No 33368 v Gittins [2022] NSWCATAP 130
The Owners-Strata Plan No 77559 v Touma; Touma v The Owners-Strata Plan No 77559
The Owners-Strata Plan No 80412 v Vickery [2021] NSWCATAP 98
Thomson v The Owners-Strata Plan No 87812 [2020] NSWCATAP 132

Category: Principal judgment
Parties: Alexander Boutenko (Applicant)
The Owners - Strata Plan No 77480 (Respondent)
Representation: Applicant (self-represented)
L Farhim (Secretary, Strata Committee) (Respondent)

File Number(s): SC 22/15309

REASONS FOR DECISION

The applicant is a Lot owner in a strata scheme located in south-western Sydney. He purchased the Lot in 2008. He resided in the Lot until 2011; and in the period between 2015 and 2017. Since 2017 he has not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWCATCD 166
Decision Date: 12 August 2022

CaseChat Overview and Summary

In Boutenko v The Owners Strata Plan No 77480, the dispute involved the owner of a strata lot who sought damages against the owners corporation for the corporation's failure to repair common property. The case was heard by the New South Wales Supreme Court. The primary issue was whether the applicant's claim was time-barred under s 106(6) of the Strata Schemes Management Act 2015 (NSW), considering the applicant's knowledge of the loss.

The court had to determine the specific point at which the applicant knew or ought to have known about the loss, which would trigger the commencement of the limitation period. The applicant argued that they only became aware of the damage when the owners corporation failed to respond to a notice to repair. The owners corporation, however, contended that the limitation period began when the damage first occurred. The court found that the limitation period started when the applicant became aware of the damage or when they ought to have become aware of it through the exercise of reasonable diligence.

After examining the evidence, the court concluded that the applicant's knowledge of the damage was not sufficient to trigger the limitation period. Consequently, the application for damages was dismissed. The court also appointed O'Neill Strata Management Pty Ltd as the compulsory strata managing agent of the owners corporation for a period of two years to ensure proper management of the strata scheme.

Orders

Orders of the court

1. Pursuant to s 237 (1) (a) of the Strata Schemes Management Act 2015 (NSW) O’Neill Strata Management Pty Ltd is appointed compulsory strata managing agent of The Owners-Strata Plan No 77480 to exercise all functions of the owners corporation including the functions in s 237 (2) (a) of the Strata Schemes Management Act 2015 (NSW) for a period of two (2) years from the date of the making of this order.

2. The application is otherwise dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Boutenko v The Owners - Strata Plan No 77480 [2022] NSWCATCD 166
Hearing dates:	29 June 2022
Date of orders:	12 August 2022
Decision date:	12 August 2022
Jurisdiction:	Consumer and Commercial Division
Before:	G Sarginson, Senior Member
Decision:	1. Pursuant to s 237 (1) (a) of the Strata Schemes Management Act 2015 (NSW) O’Neill Strata Management Pty Ltd is appointed compulsory strata managing agent of The Owners-Strata Plan No 77480 to exercise all functions of the owners corporation including the functions in s 237 (2) (a) of the Strata Schemes Management Act 2015 (NSW) for a period of two (2) years from the date of the making of this order. 2. The application is otherwise dismissed.
Catchwords:	LAND LAW---Strata title---Duty of owners corporation to repair common property---Breach---Damages---Limitation period---Knowledge of loss---Whether applicant within limitation period---s 106 (6) Strata Schemes Management Act 2015 (NSW) LAND LAW---Strata title---Compulsory appointment of strata manager---s 237 Strata Schemes Management Act 2015 (NSW)---Principles applicable LIMITATION OF ACTIONS---Strata title--Statutory cause of action---Failure to repair common property---Knowledge of loss---s 106 (6) Strata Schemes Management Act 2015 (NSW)
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Home Building Act 1989 (NSW) Strata Schemes Management Act 2015 (NSW) Trade Practices Act 1974 (Cth)
Cases Cited:	Arsalan v Rixon [2021] HCA 40; (2021) 395 ALR 390 Clutha v Millar [2002] NSWSC 362 Endre v The Owners-Strata Plan No 17771 [2019] NSWCATAP 93; Gisks v The Owners-Strata Plan No 6743 [2021] NSWCATCD 14 Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425 Hoare and Ors v The Owners-Strata Plan No 73905 [2018] NSWCATCD 45 t Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313 Maple v The Owners-Strata Plan No 8950 [2021] NSWCATCD 108 at Murphy v Overton Investments Pty Ltd [2004] HCA 3; (2004) CLR 388 S & G Homes Pty Ltd t/as Pavilion Homes v Owen [2015] NSWCATAP 190 Sabouni v Revelop Building and Development Pty Ltd [2021] NSWSC 31 Shih v The Owners Strata Plan No 87879 [2019] NSWCATAP 263 State of Western Australia v Wardley Australia Ltd [1991] FCAFC 314; (1991) 30 FCR 245 Tezel v The Owners-Strata Plan No 74232 [2022] NSWCATAP 149 The Owners-Strata Plan No 30621 v Shum [2018] NSWCATAP 15 The Owners-Strata Plan No 33368 v Gittins [2022] NSWCATAP 130 The Owners-Strata Plan No 77559 v Touma; Touma v The Owners-Strata Plan No 77559 The Owners-Strata Plan No 80412 v Vickery [2021] NSWCATAP 98 Thomson v The Owners-Strata Plan No 87812 [2020] NSWCATAP 132
Category:	Principal judgment
Parties:	Alexander Boutenko (Applicant) The Owners - Strata Plan No 77480 (Respondent)
Representation:	Applicant (self-represented) L Farhim (Secretary, Strata Committee) (Respondent)
File Number(s):	SC 22/15309