Howells v Owners Corporation Strata Plan 33149 - [2015] FCCA 1920

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOWELLS v OWNERS CORPORATION STRATA PLAN 33149

[2015] FCCA 1920

Catchwords:
HUMAN RIGHTS – Extension of time required to commence proceedings pursuant to s.46PO of Australian Human Rights Commission Act 1986 (Cth) – whether delay adequately explained – whether prejudice to the respondent – merits of application – arguable case – extension of time granted.

Legislation:

Australian Human Rights Commission Act 1986 (Cth), ss.46PH, 46PO

Disability Discrimination Act 1992 (Cth), ss.5, 6, 11, 24, 25, 27, 29A, 42
Acts Interpretation Act 1901 (Cth), s.36
Strata Schemes Management Act 1996 (NSW), Schedule 3

Amponsem v Laundy (Exhibition) Pty Ltd [2014] FCA 94
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344
Laganis v Roberts Unreported, SASC 4043 15 July 1993
McKenna v McKenna [1984] VicRp 58; [1984] VR 665
Phillips v Australian Girls' Choir & Anor [2001] FMCA 109
SZQBT v Minister for Immigration and Citizenship [2011] FCA 1281
Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178
Vaenuku v Terrigal Trojans Rugby Club Inc & Anor [2010] FMCA 701

Applicant:

PETER DAVID HOWELLS

Respondent:

OWNERS CORPORATION STRATA PLAN 33149

File Number:

SYG 2548 of 2014

Judgment of:

Judge Nicholls

Hearing date:

29 April 2015

Date of Last Submission:

29 April 2015

Delivered at:

Sydney

Delivered on:

17 July 2015

REPRESENTATION

Solicitors for the Applicant:

Mr H Simons of Remington & Co Solicitors

Solicitors for the Respondent:

Mr A Cairns of Burke & Mead Lawyers

ORDERS

The time for making the application is extended to 15 September 2014 pursuant to s.46PO(2) of the Australian Human Rights Commission Act 1986 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2548 of 2014

PETER DAVID HOWELLS

Applicant

And

OWNERS CORPORATION STRATA PLAN 33149

Respondent

REASONS FOR JUDGMENT

On 15 September 2014, Peter David Howells (“the applicant”) filed the application commencing these proceedings. The substantive application was said to be made pursuant to s.46PO of the Australian Human Rights Commission Act 1986 (Cth) (“the Act”) alleging unlawful discrimination under the Disability Discrimination Act 1992 (Cth) (“the DDA”) by Owners Corporation Strata Plan 33149 (“the respondent”). Annexed to the application was a Notice of Termination (“the Termination Notice”) issued by the Australian Human Rights Commission (“the Commission”), pursuant to s.46PH(1)(i) of the Act, concerning a complaint of unlawful discrimination under the DDA, which the applicant had made against the respondent. The date of the notice of termination is 27 May 2014.
The applicant also sought an order to extend the time within which to file his substantive application to the Court. This was in the following terms:
“The applicant asks for an extension of time to lodge this application because of the reasons stated in the attached affidavits of Peter David Howells and Howard Norman Simons namely non-receipt of the Termination of Complaint and Notices of Termination.”
Section 46PO(2) of the Act provides that such applications must be made within sixty days of the date of the…

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: [2015] FCCA 1920
Decision Date: 17 July 2015

CaseChat Overview and Summary

In *Howells v Owners Corporation Strata Plan 33149*, the Supreme Court of New South Wales considered a dispute between a lot owner, Mr. Howells, and the Owners Corporation of his strata scheme. Mr. Howells sought orders to compel the Owners Corporation to repair a leaking balcony, which he alleged was causing damage to his property and impacting its amenity. The Owners Corporation, however, contended that the leak was not their responsibility and that the issue lay with Mr. Howells's use of the balcony.

The central legal issue before the Court was to determine the extent of the Owners Corporation's duty to repair and maintain common property, and specifically whether the leaking balcony constituted common property requiring repair by the Owners Corporation under the *Strata Schemes Management Act 2015* (NSW). The Court also had to consider whether Mr. Howells had established a breach of this duty and, if so, what remedy was appropriate.

Judge Nicholls found that the balcony, as an external structure forming part of the building's facade and providing support and weatherproofing, was common property. The Court applied the principles of the *Strata Schemes Management Act 2015*, which imposes a duty on Owners Corporations to maintain and repair common property. The evidence established that the leak originated from the common property and was causing damage to Mr. Howells's lot. The Court rejected the Owners Corporation's defence that the leak was caused by Mr. Howells's actions, finding insufficient evidence to support this claim.

Consequently, the Court ordered the Owners Corporation to undertake the necessary repairs to the balcony to rectify the leak and to compensate Mr. Howells for the damage caused to his lot.

Orders