Haramis v The Owners - Strata Plan No. 51923 - [2023] NSWCATCD 15

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Haramis v The Owners – Strata Plan No. 51923 [2023] NSWCATCD 15
Hearing dates: 13 December 2022
Date of orders: 6 March 2023
Decision date: 06 March 2023
Jurisdiction: Consumer and Commercial Division
Before: P French, Senior Member
Decision:
(1) The Tsevrementzis Report is admitted into evidence.
(2) The Owners – Strata Plan No. 51923 must cause the carrying out of work to the common property pipework and party wall between Units 40 and 41 in accordance with the scope of work set out in the Soundblock quotation dated 7 April 2022 before 3 April 2023.

Catchwords:
LAND LAW – Strata title – duty to maintain common property in a good and reasonable state of repair

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW) – s 38
Strata Schemes Management Act 2015 (NSW) – ss 106, 226, 232

Cases Cited:
Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157
The Owners-Strata Plan No 33368 v Gittins [2022] NSWCATAP 130
Vujica v TNM Roofing Pty Ltd [2022] NSWCATAP 305

Texts Cited:
NCAT Procedural Direction 3: Expert Evidence

Category: Principal judgment
Parties: Dimitri Haramis (Applicant)
The Owners – Strata Plan No. 51923 (Respondent)
Representation: Dimitri Haramis (Self-represented)
Joel McGrath, Strata Manager (Respondent)

File Number(s): SC 22/39455
Publication restriction: Nil

REASONS FOR DECISION

Introduction

This is an application by Dimitri Haramis (the Lot Owner) for an order pursuant to s 232 and 106(1) of the Strata Schemes Management Act 2015 (NSW) (SSM Act) that would require the Owners - Strata Pan No. 51923 (the Owners Corporation) to carry out work to a common property party wall and its enclosed pipework to prevent or reduce noise transmission into the bedroom of his Lot from the bathroom of an adjoining Lot. This application was made to the Tribunal on 23 August 2022 (the application).
For the reasons set out following I am satisfied that the Lot Owner has established on his evidence that the Owners Corporation is in breach of the duty reposed in it by s 106(1) of the SSM Act with respect to the party wall and its enclosed pipework. This common property permits intolerable noise transmission into the bedroom of his Lot from the bathroom of the adjoining Lot. I have therefore made a work order that will require the Owners Corporation to carry out specified maintenance work to wall and pipework to remedy this breach.

Procedural history

The application was first listed before the Tribunal, differently constituted, for a Directions Hearing on 5 October 2022. The Lot Owner attended that listing of the application. There was no appearance on behalf of the Owners Corporation. At that hearing the applicant informed the Tribunal that all the documentary evidence he intended to rely on for the hearing was attached to his application and that this had been served on the Owners Corporation. Consequently, the Tribunal issued directions in relation to the filing of documentary evidence in response to the application…

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.

Continue reading Haramis v The Owners - Strata Plan No. 51923

Details

AGLC: Haramis v The Owners - Strata Plan No. 51923 [2023] NSWCATCD 15
Case: [2023] NSWCATCD 15
Decision Date: 06 March 2023

CaseChat Overview and Summary

The plaintiff, Mr. Haramis, brought a claim against the Owners – Strata Plan No. 51923 concerning the maintenance and repair of common property in his strata scheme. The dispute involved the common property pipework and party wall between units 40 and 41, which Mr. Haramis alleged were not being maintained and repaired in a good and serviceable state as required by law. The matter was heard in the NSW Civil and Administrative Tribunal.

The central legal issues before the tribunal were whether the Owners Corporation had breached its statutory duty to maintain the common property in a good and serviceable state of repair, and if so, what orders should be made to rectify the situation. The tribunal considered whether the Owners Corporation had failed to exercise its function to maintain the common property as required by law, and if Mr. Haramis's complaints were valid. The tribunal also examined the evidence, including the Soundblock quotation dated 7 April 2022, which outlined the scope of work needed for the repairs.

The tribunal found that the Owners Corporation had indeed failed to maintain and repair the common property in a good and serviceable state of repair, as required by the Strata Schemes Management Act 2015. The tribunal noted that the evidence, including the Tsevrementzis Report and the Soundblock quotation, supported Mr. Haramis's claims. Consequently, the tribunal made orders requiring the Owners Corporation to carry out the necessary work to the common property pipework and party wall before 3 April 2023. The tribunal admitted the Tsevrementzis Report into evidence as part of its reasoning.

The tribunal's final orders required the Owners Corporation to ensure that the work to the common property pipework and party wall between units 40 and 41 was carried out in accordance with the scope of work set out in the Soundblock quotation dated 7 April 2022 before 3 April 2023. This decision underscores the importance of the Owners Corporation's duty to maintain and repair common property and highlights the tribunal's role in enforcing compliance with these statutory obligations.

Orders

Orders of the court

(1) The Tsevrementzis Report is admitted into evidence.

(2) The Owners – Strata Plan No. 51923 must cause the carrying out of work to the common property pipework and party wall between Units 40 and 41 in accordance with the scope of work set out in the Soundblock quotation dated 7 April 2022 before 3 April 2023.

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

Duty of Owners Corporation to maintain and repair property. An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property ... Orders to settle disputes or rectify complaints Orders relating to complaints and disputes: The Tribunal may, on application by an interested person … make an order to settle a complaint or dispute about any of the following: - Failure to exercise a function: For the purposes of this section, an owners corporation, strata committee or building management committee is taken not to have exercised a function if –

Medium Neutral Citation:	Haramis v The Owners – Strata Plan No. 51923 [2023] NSWCATCD 15
Hearing dates:	13 December 2022
Date of orders:	6 March 2023
Decision date:	06 March 2023
Jurisdiction:	Consumer and Commercial Division
Before:	P French, Senior Member
Decision:	(1) The Tsevrementzis Report is admitted into evidence. (2) The Owners – Strata Plan No. 51923 must cause the carrying out of work to the common property pipework and party wall between Units 40 and 41 in accordance with the scope of work set out in the Soundblock quotation dated 7 April 2022 before 3 April 2023.
Catchwords:	LAND LAW – Strata title – duty to maintain common property in a good and reasonable state of repair
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) – s 38 Strata Schemes Management Act 2015 (NSW) – ss 106, 226, 232
Cases Cited:	Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157 The Owners-Strata Plan No 33368 v Gittins [2022] NSWCATAP 130 Vujica v TNM Roofing Pty Ltd [2022] NSWCATAP 305
Texts Cited:	NCAT Procedural Direction 3: Expert Evidence
Category:	Principal judgment
Parties:	Dimitri Haramis (Applicant) The Owners – Strata Plan No. 51923 (Respondent)
Representation:	Dimitri Haramis (Self-represented) Joel McGrath, Strata Manager (Respondent)
File Number(s):	SC 22/39455
Publication restriction:	Nil