Harvey v The Owners - Strata Plan No. 60850

[2025] NSWCATCD 100

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Harvey v The Owners – Strata Plan No. 60850 [2025] NSWCATCD 100

Hearing dates:

3 April 2025

Date of orders:

28 July 2025

Decision date:

28 July 2025

Jurisdiction:

Consumer and Commercial Division

Before:

D Goldstein, Senior Member

Decision:

(1)   DocBay Pty Ltd’s application is dismissed.

(2)   Within 60 days of the date of this order, The Owners – Strata Plan No. 60850 must replace the balcony to lot 15 in strata plan 60850 which collapsed on or about 9 May 2024 with a new balcony of identical dimension using where required materials of no lesser quality than the materials used in the original balcony.

(3)   The Owners – Strata Plan No. 60850 must pay Teresa Harvey $1,703.18 immediately.

Catchwords:

STRATA TITLES – Distinction between lot property and common property – Meaning of a vinculum – Boundaries of a lot

Legislation Cited:

Strata Schemes Development Act 2015

Strata Schemes (Freehold Development) Act 1973

Strata Schemes (Leasehold Development) Regulation 1997

Strata Schemes Management Act 2015

Cases Cited:

Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425

Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWC 1157

Selkirk v The Owners - Strata Plan No 2661 [2024] NSWCATAP 17

Sovel Holdings v The Owners Strata Plan No. 8136, Consumer and Commercial Division (Unreported January 2024)

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

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

The Owners Strata Plan 30198 v Barnes [2018] NSWCATCD 8

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Teresa Harvey: first applicant
DocBay Pty Ltd: second applicant
The Owners – Strata Plan No. 60850: respondent

Representation:

The parties were self-represented:

File Number(s):

2024/00425125

Publication restriction:

Nil

REASONS FOR DECISION

1. The applicants own lots 15 and 16 in strata plan 60850. In their points of claim, they state that during a severe weather event on 8 May 2024, Lot 16’s suspended balcony (terrace) collapsed, and on 9 May 2024, Lot 15’s suspended balcony (terrace) collapsed as well. Ms Harvey is the owner of lot 15. DocBay Pty Ltd owns lot 16.

2. The applicants claim that the suspended balconies are common property, the responsibility of the respondent and that the respondent is responsible for the rectification of the collapsed balcony/terraces. In addition they seek damages pursuant to s106 of the Strata Schemes Management Act 2015 (“SSMA”).

3. The respondent’s position is that the balconies (terraces) referred to by the applicants (the respondent refers to these areas as “decks”) are not common property and because of that, it has no obligation to maintain or repair them, or to pay damages.

4. The evidence in the proceedings was:

1. Exhibit A, bundle of documents filed by the applicants on 14 January 2025;

2. Exhibit B, bundle of documents filed by the applicants on 27 February 2025;

3. Exhibit C, documents filed by the applicants on 12 March 2025;

4. Exhibit 1, bundle of documents filed by the respondent on 24 January 2025; and

5. Exhibit 2, bundle of documents filed by the respondent on 5 March 2025.

5. Lots 15 and 16 are depicted on strata plan 60850 as follows:

6. Strata Plan 60850 has the following notations:

“CP – DENOTES COMMON PROPERTY

BL – DENOTES BACONY

COURTYARDS ARE LIMITED IN HEIGHT TO 6.0 BELOW AND 3.6 ABOVE THE FLOOR OF THEIR RESPECTIVE UNITS EXCEPT WHERE COVERED”

7. The applicants rely on a letter from the NSW Land and Registry Services dated 8 October 2022 which states as follows, so far as relevant:

“NSW Land Registry Services can provide information to customers to assist with interpreting Strata Plans, identifying what the registered surveyor has shown in the Strata Plan as common property and what is part of a strata lot. The information provided does not constitute legal advice and we recommend you seek your own independent legal and surveying advice.

The strata plan will define the lot on the floor plan, common property is all the areas land and building not included in any lot.

The internal parts of the lot are defined by the inside face of perimeter walls, the upper surface of the floor, and the underside of the ceiling.

Thick line work will represent a structure which is common property.

The external parts of the lot are defined by stratum statements, structures and dimensioned land boundaries, as noted on the Strata Plan.

A stratum statement defines the upper and lower limits of a lot.

The courtyard stratum statement on SP60850 reads ‘Courtyards are limited in height 6 below and 3.6 above the floor of their respective units, except where covered’. timber decking within these limits of the courtyard would be considered lot property.

No stratum statement has been provided for the areas denoted BL Balcony, the lot boundary at these areas would be limited to the structures which were there at registration of the strata plan, making these structures common property.”

8. The relief sought by the applicants is as follows:

“Requiring the Owners Corporation to adopt the Registrar Generals finding that the U 15 suspended timber balcony terrace is common property, implement the recommendations of Dr Richard Barnes Structural Engineer SRH Architecture Structural Review.

Requiring the Owners Corporation to adopt the Registrar Generals finding that the U16 suspended timber balcony terrace is common property, implement the recommendations of Dr Richard Barnes Structural Engineer SRH Architecture Structural Review.

Requiring the Owners Corporation to adopt the Registrar Generals finding NSW Legislation Strata Schemes Management Act 2015 No 50 (SSMA 2015) 106 Duty of owners corporation to maintain and repair property

(1)   An owners corporation for a strata scheme must properly maintain and keep in good state serviceable repair the common property vested in the owners corporation.

(2)   An owners corporation must renew or replace any fixtures or fittings compromised in the common property and any personal property vested in the owners corporation.

(5) An owner of a lot in a strata scheme may recover from the owners corporation, as damages for breach of statutory duty, any reasonably foreseeable loss suffered by the owner as a result of a contravention of the section by the owners corporation.”

9. The applicants provided financial details of their claim which amounted to $86,472.48.

Reports regarding the damage to the balcony/terraces

10. Exhibit A contained a report from Urban Building Solutions (‘UBS’) who provided an insurance report dated 3 June 2024 which stated:

“We have inspected the decking and we are of the opinion damage is because of failed joist hangers which support timber decking. Over a long period of time, at least several years, the joist hangers supporting the decking to unit 15 & 16 have completely rusted out to the point where they have disintegrated, which have led to failure and collapse of decking. The owner of Unit 16 is adamant that the damage is because of the rain and weather. I have tried to advise her that the joist hangers have completely rusted out and that has caused the collapse. She did not accept my explanation.”

11. The report from Dr Barnes as referred to in the relief sought by the applicants is in exhibit A at page 102. Dr Barnes inspected lots 15 and 16 on 3 December 2024. Dr Barnes stated that timber decking had been removed from the whole of lot 15’s terrace providing a clear view of the structure below. He stated that within lot 16, a portion of the decking had been removed, providing access underneath. Dr Barnes stated that the timber decking was supported on an orthogonal layout of timber joists and timber bearers. The bearers in turn were supported on steel unipiers, which were founded on small concrete footing pads. He stated that around the perimeter, bearers had been bolted directly to side walls. Dr Barnes observed that the unipiers, were affected by severe rust which resulted in rusted through struts losing the ability to support the terrace loads. He also observed that rust to severe levels had also occurred in brackets connecting joists to bearers. He also said that extreme rusting was observed in bolts connecting bearer’s direct to edge walls. By way of summary Dr Barnes stated that :

“severe rust has attacked all steel components of the terrace decking system. This has led to supporting structure with inadequate capacity to support the required deck live loading.”

Relevant statutory provisions

12. Section 4 of the SSMA defines common property in the following terms:

“in relation to a strata scheme or a proposed strata scheme, has the same meaning as it has in the Strata Schemes Development Act 2015.”

13. Section 4 of the Strata Schemes Development Act 2015 (“SSDA”) defines common property as follows:

“common property, in relation to a strata scheme or a proposed strata scheme, means any part of a parcel that is not comprised in a lot (including any common infrastructure that is not part of a lot).”

14. Section 4 of the SSMA defines a lot in the following terms:

“in relation to a strata scheme, has the same meaning as it has in the Strata Schemes Development Act 2015.”

15. Section 4 of the SSDA defines lot as follows:

“lot, in relation to a strata scheme, means one or more cubic spaces shown as a lot on a floor plan relating to the scheme, but does not include any common infrastructure, unless the common infrastructure is described on the plan, in the way prescribed by the regulations, as a part of the lot.”

16. A floor plan as referred to in the definition of a lot is also referred to in s4 of the SSDA where a “floor plan” is defined as:

“floor plan means a plan that—

(a)  defines by lines (each a base line) the base of the vertical boundaries of each cubic space forming the whole of a proposed lot, or the whole of a part of a proposed lot, to which the plan relates, and

(b)  shows—

(i)  the floor area of each proposed lot, and

(ii)  if a proposed lot has more than one part—the floor area of each part together with the aggregate of the floor areas of the parts, and”

17. Section 6 of the SSDA deals with boundaries of a lot. This section is important in these proceedings. It states:

“(1)  For the purposes of this Act, the boundaries of a lot shown on a floor plan are—

(a)  except as provided by paragraph (b)—

(i)  for a vertical boundary in which the base of a wall corresponds substantially with a base line—the inner surface of the wall, and

(ii)  for a horizontal boundary in which a floor or ceiling joins a vertical boundary of the lot—the upper surface of the floor and the under surface of the ceiling, or

(b)  the boundaries described on the floor plan relating to the lot, in the way prescribed by the regulations, by reference to a wall, floor or ceiling in a building to which the plan relates or to common infrastructure within the building.

(2)  In this section—

base line—see paragraph (a) of the definition of floor plan in section 4 (1).”

Case law

18. I am grateful to my colleague Senior Member Bluth for referring me to an unreported decision in the Consumer and Commercial Division of the Tribunal, Sovel Holdings v The Owners Strata Plan No. 8136, Consumer and Commercial Division (Unreported January 2024) which deals, among other things, with the delineation between lot property and common property.

19. The applicants referred the Tribunal to the decision of Brereton J in Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWC 1157. I find that the decision in Seiwa is in the main concerned with an owners corporation’s obligations to maintain and repair. There is a discussion of the relevant statutory provisions at [8] – [10] and at [17] reference to the upper surface of a cubic space. His Honour held that the words on the strata plan in that case ‘except where covered’ referred to a cover such as a roof or an awning. He held in connection with the patio to the lot, that the upper surface of the patio was the upper surface of the floor. In connection with the statement on the strata plan:

“Denotes terrace limited in height to 2.5 above the upper surface of the concrete floor thereof, except where covered.”

his Honour stated:

“The effect of the annotation was to describe the upper boundary part of the relevant cubic space by reference to a floor. It did not describe the lower boundary.”

20. In The Owners – Strata Plan No 87265 v Saaib; The Owners – Strata Plan No 87265 v Alexandrova [2021] NSWSC 150 Henry J stated at [390]:

“The Strata Plan for the Marrickville property comprises four pages of floor plans.10 They show the internal areas of the 11 units and the balconies, terraces and courtyards delineated separately by heavy lines with a short wavy line (a vinculum) across the boundary of the internal and external areas on the ground and first floors of each unit and across the boundary between the terraces and the courtyards on the ground floor. A vinculum indicates that an area is linked to and forms part of a lot, thus indicating that the balconies, courtyards and terraces of each unit forms part of each lot rather than part of the common property: Peter Butt, Land Law (7th ed, 2017, Thomson Reuters) at [13.90]; Smouha v Fleming (1997) 8 BPR 15,419 at 15,424.”

21. A In addition at [400] and [401] Henry J stated:

“Both parties rely on the presence of the vinculum . Mr Saaib argues that, as the vinculum indicates that the balcony forms part of the unit (and thus the lot), the walls are not to be treated as external walls but as internal walls that form part of the internal space within the boundary of the lot. I disagree and accept the Owners Corporation’s submission that the defect is a common property defect.

The vinculum on the floor plans identify that the first-floor balconies form part of the lot. They also convey that the intervening boundaries, namely the external facing walls adjacent to the balconies, are not to be treated as part of the lot but as common property. This is because it is appropriate to regard the cubic spaces on either side of the walls as different “parts” of the one lot so that the boundary of each part becomes the inner surface of the wall between them with the wall becoming common property, or as one single composite cubic space subdivided by a common property wall: Symes at [39]–[40]; Neville Moses, Ross Tzannes and Diane Skapinker, Strata Titles NSW (2017, Thomson Reuters) at [SSDA.6.20].”

22. The decision in The Owners – Strata Plan No 87265 v Saaib; The Owners – Strata Plan No 87265 v Alexandrova referred to the Strata Schemes (Freehold Development) Act 1973, now repealed. However I find that the reference to the definitions in that legislation does not affect anything said about the part played by a vinculum on a strata plan.

23. In The Owners Strata Plan 30198 v Barnes [2018] NSWCATCD 8 Senior Member Smith stated at [41] – [43]:

“The SSMA s4 relevantly provides:

“building”, in relation to a strata scheme or a proposed strata scheme, means a building containing a lot or a proposed lot, in the scheme or proposed scheme.

The difficulty with the respondent’s reliance on this definition is that the word “building” is defined to include a lot in a strata scheme. By reference to the strata plan at page 85 of the respondent’s consolidated bundle it is clear from the placement of the vinculum that the courtyard and garden area in each case forms part of each lot.

I am satisfied therefore that the garden area in question at the rear of lot 8 is in fact part of lot 8 and by definition part of the building comprising Strata Plan 30198.”

Determination of application

24. I find that the letter from NSW Land and Registry Services is not binding on me. It is important to bear in mind that the relief sought by the applicants relies on the content of this letter either being an authoritative statement, or in any event being correct. In that regard it is relevant to acknowledge that the content of the letter namely the paragraphs that I have extracted below would, if accepted, result in a conclusion that the courtyard to lot 16 would be lot property and the building elements under the balcony to lot 15 would be common property:

“The courtyard stratum statement on SP60850 reads ‘Courtyards are limited in height 6 below and 3.6 above the floor of their respective units, except where covered’. timber decking within these limits of the courtyard would be considered lot property.

No stratum statement has been provided for the areas denoted BL Balcony, the lot boundary at these areas would be limited to the structures which were there at registration of the strata plan, making these structures common property.”

25. While the letter from NSW Land and Registry Services does not address the vinculum on the strata plan or its meaning or effect, I have concluded that the vinculum makes it clear that the balcony to lot 15 forms part of the lot and the courtyard to lot 16 forms part of the lot. The reasoning for that is that the short wavy line, a vinculum, referred to by Henry J which is like an “S” on its side is shown over the thick line on lot 15 onto a courtyard and onto a balcony. There is also a vinculum over a thick line on lot 16 onto a timber paved court yard.

26. The decisions in The Owners – Strata Plan No 87265 v Saaib; The Owners – Strata Plan No 87265 v Alexandrova and The Owners Strata Plan 30198 v Barnes make it clear that when a vinculum is shown over a heavy line which depicts the external wall of a lot, linking that lot with an external area such as a courtyard, garden or balcony, the courtyard, garden or balcony forms part of the lot.

27. In addition to interpreting the strata plan by the presence of the vinculum, I find that is also possible to come to the same conclusion to interpret the strata plan by finding that the thick black lines show the outer walls or boundaries of lots 15 and 16 and that the thinner lines which show in the case of lot 15, the balcony and in the case of lot 16, the courtyard are to be interpreted as lines which serve the purpose stated in (b) of the definition of floor plan in the SSDA, namely to show the floor area of each part of the lot. This interpretation is similar to that referred to by the respondent at page 25 of exhibit 2 which bears repeating:

“The deck areas in question are clearly shown as being included in the Lot in the excerpt from the level 2 strata plan (sheet 4 of 5). This is also evidenced that the Area for unit 14 is shown as 101m² whereas the area for unit 15 is 126m². The area of the deck is 3.425m x 7.29m ie 25 m² which accounts for the difference between Lot 14 which is the mirror image of Lot 15 with the exception of the ground floor level deck.”

28. The findings regarding the vinculum and the other matters referred to regarding the area of the lots are not findings which addresses the primary issue in these proceedings, namely was the respondent responsible for the maintenance and repair of the building elements which failed causing the terraces/decks to collapse.

29. I find that s6 of the SSDA is of critical importance to the issues in these proceedings because the section makes it clear for the boundaries of a lot shown on a floor plan for a horizontal boundary, in which a floor or ceiling joins a vertical boundary of the lot, the upper surface of the floor will be the boundary of the lot. Since common property is defined to be any part of a parcel that is not comprised in a lot, the building elements below the upper surface of the floor, namely the timber decking, timber joists, timber bearers supported on steel unipiers founded on small concrete footing pads (the ‘building elements’) would all be common property.

30. Before concluding that the building elements under the balcony of lot 15 and under the courtyard of lot 16 are common property, it is necessary to have regard to the statement on sheet 4 of 5 on strata plan 60850 to which I have referred to above, namely:

“COURTYARDS ARE LIMITED IN HEIGHT TO 6.0 BELOW AND 3.6 ABOVE THE FLOOR OF THEIR RESPECTIVE UNITS”

31. I find that this statement which relates to courtyards is applicable to lot 16 since that lot has “CY” under the words “TIMBER PAVED”. I assume that CY refers to a courtyard, although that is not stated. What the quoted words mean and why they are relevant is not immediately apparent. However the Strata Schemes (Leasehold Development) Regulation 1997 which was in force when the strata plan was registered, 6 August 1999, stated at regulation 8(1)(d):

“A floor plan must show the following:

notations sufficient to ensure that each cubic space forming the whole of a lot or a whole separate part of a lot is fully defined”

32. Pursuant to clause 3 of Part 2 of Schedule 8 of the SSDA – Savings, transitional and other provisions, regulation 8(1)(d) of the Strata Schemes (Leasehold Development) Regulation 1997 is taken to have been done or enacted under the SSDA.

33. Giving effect to the words referred to at [30] and pursuant to regulation 8(1)(d), it becomes apparent the whole of the courtyard to lot 16 would be lot property including the building elements because the words referred to at [30] indicate the lower and upper levels of the courtyard portion of the lot. This interpretation is consistent with the finding in Seiwa Pty Ltd v Owners Strata Plan 35042 where Brereton J interpreted a similar but not identical annotation on a strata plan. This interpretation is also consistent with the view stated in the letter from NSW Land and Registry Services as referred to above and in the applicants’ points of claim. The building elements under the courtyard of lot 16 are within the 6.0m area below the floor level of lot 16. Refer page 177 exhibit 1. There is also no suggestion that the courtyard of level 16 is covered.

34. Because there is no such statement applicable to lot 15, I find that the part of lot 15 which is the balcony area commences from the upper surface of the balcony, that is from the upper surface of the timber decking.

35. Section 4 of the SSDA states that common property, in relation to a strata scheme means any part of a parcel that is not comprised in a lot. In connection with the issues in these proceedings this leads to a finding that for lot 15, the building elements which are not within the lot are common property. The owner of lot 15 is therefore in a position to pursue a s106 of the SSMA claim against the respondent.

36. The owner of lot 16 has not been successful in establishing that the building elements under the courtyard of lot 16 are common property. Therefore it is not in a position to pursue a claim against the respondent.

37. Section 106 of the SSMA states, so far as relevant:

“(1) An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.

(2) An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.”

41 In Selkirk v The Owners - Strata Plan No 2661 [2024] NSWCATAP 17 an appeal panel discussed the nature of an OC’s obligation under s106 of the SSMA. It was stated at [31] – [33]:

“It is trite law, and was uncontroversial in these proceedings, that the OC owed and owes lot owners a strict duty to maintain and repair, including as required to renew or replace, common property under s 106(1) and (2) of the Strata Schemes Management Act 2015 (NSW) (SSMA) as interpreted in well-established authority: Seiwa PL v Owners SP 345042 [2006] NSWSC 1157 at [3]-[7], [21]-[23]; Trevallyn-Jones v Owners SP 50358 [2009] NSWSC 694 at [128] et seq, esp at [154]-[156]; Riley v Owners SP 73817 [2012] NSWCA 410 at [75]-[76], referring to the same content of duty in the predecessor to SSMA s 106, being s 62 of the 1996 Act. There was no qualification on appeal to what was said in Seiwa at first instance in relation to the strict nature of the duty: Owners SP 345042 v Seiwa Australia PL [2007] NSWCA 272 - Hodgson JA at [5] referred to the strict nature of the duty in similar terms to Brereton J in Seiwa, as did Tobias JA at [54] with an acknowledgement of what is now s106(3) that is not presently relevant. The same approach on the present provision was endorsed by reference to the earlier authority in Smith v Owners SP 3004 [2022] NSWSC 1599 at [30]-[31].

The duty extends to remediation of defects in the construction of the common property, because repair means making something good even if it was not originally good: Proprietors SP 6522 v Furney [1976] 1 NSWLR 412 at 416.

Brereton J in Seiwa [2006] NSWSC 1157 at [4] expressly referred to the duty as including keeping the premises “in proper order by acts of maintenance before it falls out of condition, in a state which enable it to serve the purpose for which it exists”. This encompasses preventative maintenance and repair and financial provision for such preventative work. Reasonable steps is not a defence, nor is contributory negligence a consideration: Owners SP 345042 v Seiwa Australia PL [2007] NSWCA 272 at [46]. The statutory provision is not cast in the form of a duty on an owners corporation to take reasonable care. It does not embody a range of reasonable excuses for inaction. The common property is out of the state of repair and maintenance in breach of duty until the repair or maintenance occurs: Owners SP 80412 v Vickery [2021] NSWCATAP 98 at [36], [63]; Owners SP 36613 v Doherty [2021] NSWCATAP 285 at [84], [93]-[94].”

38. I will have regard to the principles set out in the above extract in considering the s106 issues that have arisen in these proceedings. I find that the principles stated are not in doubt despite the fact that the Appeal Panel’s decision in Selkirk v The Owners - Strata Plan No 2661 was partially disturbed in The Owners - Strata Plan No 2661 v Selkirk [2024] NSWSC 760.

39. The evidence that I have referred to regarding the causes of the damage to the terraces/decking establish that the building elements were rusted causing the balcony of lot 15 to fail.

40. Based on the principles which are referred to in Selkirk, the finding in the preceding paragraph and the evidence of the experts, I find that it is clear that the respondent failed to take adequate action under s106 of the SSMA to maintain and repair the building elements.

Damages

41. The owner of lot 15 relies on a quote from Schmidt Construction for Balcony renewal at unit 15, which is at page 24 of exhibit B. The total amount quoted is $44,488.17.

42. The respondent’s evidence includes quotes from 3 contractors. The first quote was from Freeform Carpentry. The quote was dated 17 January 2025 and was for the replacement of an existing deck at the address of the strata scheme. The quote provided four options. Options 1 and 2 were for the replacement of an existing deck like for like. The quote was for an area of approximately 175m². Because of the reference to 175m² I infer that the quote related to lots 15 and 16. The total of the quote was $100,961.30 or $577 per m².

43. The second quote was from Buildan Constructions for a total of $161,700.00. The quote is to “Replace entire existing Deck new or old”. I infer that the quote relates to lots 15 and 16. The per m² price assuming a total of 175m² has been quoted is $924.00.

44. The third quote was from Koala Floor Sanding and was made up of a number of quotations for demolition x 2, Sanding and oiling, installation costs excluding materials. The quotes were based on a 175m² area.

45. Section 241 of the SSMA states:

“The Tribunal may order any person the subject of an application for an order to do or refrain from doing a specified act in relation to a strata scheme.”

46. In my view the most appropriate remedy is to order the respondent to carry out the necessary work to restore the balcony to lot 15 to a proper and sound state in an identical form to what is was before it failed. The work should be carried out with new fittings and materials where necessary. I have the power to make such an order under s241 of the SSMA and also under s240 of the SSMA in circumstances where a party has not sought such an order. I will make that order because I find that it is more appropriate that the respondent carry out common property rectification and repair work. If the owner of lot 15 were to do the necessary work, complications would arise in obtaining the respondent’s permission to do so because common property is involved. I also find that it more appropriate that the respondent do the work so that the owner of lot 15 is shielded from the financial risk of doing that work if an amount awarded in her favour is insufficient. There is also the fact that if the respondent carries out the work it will be shielded from a potential excessive outcome if I were to make an excessive award in favour of the owner of lot 15. From the quotes referred to above it can be seen that there is a wide variance in the prices quoted to do the necessary work. I find that the respondent should be in a position to determine the scope of the common property rectification work as it is its duty to maintain and repair common property. In Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425, Parker J stated at [111] that the Tribunal “is not entitled to order an owners corporation to do things just because it considers it desirable to do so”. That comment was made in the context of considering the ambit of the Tribunal’s power to order an owners corporation to take measures to comply with its duty to keep and maintain common property in a state of good repair. Parker J held that the Tribunal’s remedial orders “could go no further than the minimum necessary to comply with that obligation”. At [112] Parker J stated:

“In the present case, the Tribunal did not ask itself what needed to be done so as to order to achieve a minimal compliance with s 62(1) and then frame orders accordingly. In my view this means that there was no proper statutory foundation for the orders.”

47. The respondent has asked for a number of orders to be made in its favour. Refer page 40 of exhibit 1. To obtain the orders it seeks, the respondent should have brought a cross application which it has not done. As a result I decline to make the orders that the respondent has sought.

48. For the reasons that have been provided, I will make an order that within 60 days of the date of this order, The Owners – Strata Plan No. 60850 must, in order to comply with s106, replace the balcony to lot 15 in strata plan 60850 which collapsed on or about 9 May 2024 with a new balcony of an identical dimension using where required materials of no lesser quality than the materials used in the original balcony.

Costs

49. The applicants have made an application for their costs and expenses incurred in connection with these proceedings. On 3 April 2025 the applicants were granted leave to file an updated expenses claim which they did on 10 April. The nature of the costs claimed by the applicants is out of pocket expenses associated with these proceedings. The total amount that was claimed was $2,449.11.

50. Because the applicants’ Points of Claim filed in the Tribunal on 27 February 2025 claimed $86,472.48, I find that Rule 38 applies to the applicants claim for expenses associated with these proceedings. I also find that since the applicant Teresa Harvey was successful in her application she will be entitled to recover expenses incurred in and for the purpose of these proceedings.

51. The table sent in by the applicants in connection with Ms Harvey was:

NCAT2024/004251125	EXPENSES CLAIMS
Vendor	Description	Amount (inc GST)	Date
1	Amazon	Epson Printer Ink 604 Std.	$15.68	01/06/24
2	Office Works	M365	$89.30	6/06/24
3	Ink Station	Norton	$28.95	24/09/24
4	Woollacott’s Consulting Engineers	Site Inspection by Stefan Geldenhuis Structural Engineer	$352.00	29/08/24
5	Han’s Schmidt (Builder)	New plans for replacement balconies U15&U16	$240.00	10/09/24
6	NSW Transport for NSW	Opal Card NCAT (multiple trips)	$20.00
7	NCAT C&C Sydney	NCAT Application	$125.00	15/11/24
Office Works	Copying, Binding Stationery & Labour	$50.00	14/01/25
8	Amazon	Epson Printer Ink 604XL	$35.99	09/12/24
9	SRH Architecture Dr Richard Barnes Structural Engineering Fees	Structural Review Report U15 & U16 Terraces and Surrounding Timber Common Property Infrastructure	$1343.10	13101/25 VISA
10	Amazon	Epson Printer Ink 604XL	$33.99	17/01.25
Office Works	Copying, Stationery and Binding, Labour	$35.20	27/02.25
11	Office Works	Copying, Stationery and Binding, Labour	$32.70	12/03/25
12	Office Works	Reflex Copy Paper Printer	$10.00	12/03/25
13	Office Works	Copying, Stationery and Binding, Labour	$37.20	08/04/25
$2,449.11
TOTALEXPENSES

52. These proceedings were commenced on 15 November 2024. I will not allow expenses incurred before that date.

53. I will not allow items 1 – 6 in the sum of $745.93 as these expenses were incurred before proceedings were instituted. The service provided by Woollacott Consulting Engineer played no part in the proceedings. Nor did the new plans for replacement balconies. I will allow the balance of the expenses claimed in the sum of $1,703.18.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 13 October 2025