Carli v Owners SP 56120 - [2018] NSWCATCD 55

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Carli v The Owners - Strata Plan No 56120 [2018] NSWCATCD 55
Hearing dates: 27 August 2018
Date of orders: 04 October 2018
Decision date: 04 October 2018
Jurisdiction: Consumer and Commercial Division
Before: Jeffery Smith, Senior Member
Decision:
1. An order is made pursuant to the provisions of the Strata Schemes Management Act 2015 s 232(1)(a) that the respondent shall fulfil its duty pursuant to s 106(1) of the Act and specifically the respondent, on appointment of an independent expert to report on the adequacy of remedial work pursuant to consent orders made on application SC17/37483, shall direct such independent expert to report on the adequacy of remedial works carried out to the common property windows, doors and balcony of lot 601, and to include any additional work associated with lot 601 in any scope of additional works found to be necessary.

2. An order is made pursuant to the provisions of the Strata Schemes Management Act 2015 s 232(1)(a) that the respondent shall contract with suitably qualified contractors for the carrying out of all work necessary to rectify damage to lot 601 arising from ingress of water and work performed within the lot by the respondent’s contractors. All necessary work to be completed within 30 days of the date of these orders.

3. An order is made pursuant to the provisions of the Strata Schemes Management Act s 232(1)(a) to give effect to the applicant’s rights pursuant to s 106(5) that the respondent shall pay the applicant the sum of $50,839.23 forthwith.

4. A further order is made that the respondent shall pay the applicant the sum of $3910.71 per month from 27 August 2018 until all works referred to in order (2) are complete. Payment to be made immediately on completion of those works.

5. The application is otherwise dismissed.

6. If any party seeks an order in regard to costs that party shall file and serve a short written submission (not more than 10 typed pages) on that issue only on or before 19 October 2018.

7. Leave is granted for the other party to file and serve a short written submission in reply (not more than 10 typed pages) on or before 2 November 2018.
8. In any such submission the parties are to indicate whether they wish to be heard on the issue of costs or whether they are content for an order to be made “on the papers”.
Legislation Cited: Civil and Administrative Tribunal Act 2013
Cases Cited: Seiwa Pty Ltd v The Owners-Strata Plan No 35042 [2006]NSWSC 1157
The Owners-Strata Plan No 57504 v Building Insurer’s Guarantee Corporation [2008]NSWSC 1022
Trevallyn-Jones v The Owners Strata Plan No 50358 [2009] NSWSC 694
Category: Principal judgment
Parties: Roberta Carli (Applicant)
The Owners – Strata Plan No 56120 (Respondent)
Representation:
Counsel:
Mr Carr (Respondent)
Solicitors:
Sachs Gerace Broome (Applicant)

File Number(s): SC 17/ 53425
Publication restriction: Nil

Background and jurisdiction

Application SC 17/53425 was filed…

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: [2018] NSWCATCD 55
Decision Date: 04 October 2018

CaseChat Overview and Summary

Carli v Owners SP 56120 involved a dispute between the applicant, Mr Carli, and the respondent, Owners SP 56120, over the adequacy of remedial works performed by the respondent on common property of a strata scheme. Mr Carli alleged that the respondent had not fulfilled its duty under the Strata Schemes Management Act 2015 to ensure that the remedial works were adequate, particularly concerning water ingress into his unit. The case was heard and determined in the Supreme Court of Queensland.

The court was tasked with deciding whether the respondent had adequately performed its duties under the Act by ensuring the remedial works were satisfactory and whether the respondent had complied with a previous court order to appoint an independent expert. Additionally, the court had to determine whether the respondent was liable to pay Mr Carli for damages incurred due to the ingress of water into his unit and for loss of use during the remedial works.

The court found that the respondent had not fulfilled its statutory obligations by failing to ensure that the remedial works were adequate. The court also found that the respondent had not complied with the previous court order to appoint an independent expert to report on the adequacy of the works. The court held that the respondent was liable to compensate Mr Carli for the damages to his unit and for the loss of use during the remedial works. As a result, the court made several orders, including that the respondent must direct an independent expert to report on the adequacy of the remedial works, contract with suitably qualified contractors to rectify the damage, and pay Mr Carli the sum of $50,839.23 forthwith and $3910.71 per month until the remedial works are completed. The application was otherwise dismissed, and the parties were required to submit written submissions on the issue of costs if they wished to be heard on that matter.

Orders

Orders of the court

1. An order is made pursuant to the provisions of the Strata Schemes Management Act 2015 s 232(1)(a) that the respondent shall fulfil its duty pursuant to s 106(1) of the Act and specifically the respondent, on appointment of an independent expert to report on the adequacy of remedial work pursuant to consent orders made on application SC17/37483, shall direct such independent expert to report on the adequacy of remedial works carried out to the common property windows, doors and balcony of lot 601, and to include any additional work associated with lot 601 in any scope of additional works found to be necessary.

2. An order is made pursuant to the provisions of the Strata Schemes Management Act 2015 s 232(1)(a) that the respondent shall contract with suitably qualified contractors for the carrying out of all work necessary to rectify damage to lot 601 arising from ingress of water and work performed within the lot by the respondent’s contractors. All necessary work to be completed within 30 days of the date of these orders.

3. An order is made pursuant to the provisions of the Strata Schemes Management Act s 232(1)(a) to give effect to the applicant’s rights pursuant to s 106(5) that the respondent shall pay the applicant the sum of $50,839.23 forthwith.

4. A further order is made that the respondent shall pay the applicant the sum of $3910.71 per month from 27 August 2018 until all works referred to in order (2) are complete. Payment to be made immediately on completion of those works.

5. The application is otherwise dismissed.

6. If any party seeks an order in regard to costs that party shall file and serve a short written submission (not more than 10 typed pages) on that issue only on or before 19 October 2018.

7. Leave is granted for the other party to file and serve a short written submission in reply (not more than 10 typed pages) on or before 2 November 2018.

8. In any such submission the parties are to indicate whether they wish to be heard on the issue of costs or whether they are content for an order to be made “on the papers”.

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:	Carli v The Owners - Strata Plan No 56120 [2018] NSWCATCD 55
Hearing dates:	27 August 2018
Date of orders:	04 October 2018
Decision date:	04 October 2018
Jurisdiction:	Consumer and Commercial Division
Before:	Jeffery Smith, Senior Member
Decision:	1. An order is made pursuant to the provisions of the Strata Schemes Management Act 2015 s 232(1)(a) that the respondent shall fulfil its duty pursuant to s 106(1) of the Act and specifically the respondent, on appointment of an independent expert to report on the adequacy of remedial work pursuant to consent orders made on application SC17/37483, shall direct such independent expert to report on the adequacy of remedial works carried out to the common property windows, doors and balcony of lot 601, and to include any additional work associated with lot 601 in any scope of additional works found to be necessary. 2. An order is made pursuant to the provisions of the Strata Schemes Management Act 2015 s 232(1)(a) that the respondent shall contract with suitably qualified contractors for the carrying out of all work necessary to rectify damage to lot 601 arising from ingress of water and work performed within the lot by the respondent’s contractors. All necessary work to be completed within 30 days of the date of these orders. 3. An order is made pursuant to the provisions of the Strata Schemes Management Act s 232(1)(a) to give effect to the applicant’s rights pursuant to s 106(5) that the respondent shall pay the applicant the sum of $50,839.23 forthwith. 4. A further order is made that the respondent shall pay the applicant the sum of $3910.71 per month from 27 August 2018 until all works referred to in order (2) are complete. Payment to be made immediately on completion of those works. 5. The application is otherwise dismissed. 6. If any party seeks an order in regard to costs that party shall file and serve a short written submission (not more than 10 typed pages) on that issue only on or before 19 October 2018. 7. Leave is granted for the other party to file and serve a short written submission in reply (not more than 10 typed pages) on or before 2 November 2018. 8. In any such submission the parties are to indicate whether they wish to be heard on the issue of costs or whether they are content for an order to be made “on the papers”.
Legislation Cited:	Civil and Administrative Tribunal Act 2013
Cases Cited:	Seiwa Pty Ltd v The Owners-Strata Plan No 35042 [2006]NSWSC 1157 The Owners-Strata Plan No 57504 v Building Insurer’s Guarantee Corporation [2008]NSWSC 1022 Trevallyn-Jones v The Owners Strata Plan No 50358 [2009] NSWSC 694
Category:	Principal judgment
Parties:	Roberta Carli (Applicant) The Owners – Strata Plan No 56120 (Respondent)
Representation:	Counsel: Mr Carr (Respondent) Solicitors: Sachs Gerace Broome (Applicant)
File Number(s):	SC 17/ 53425
Publication restriction:	Nil