Howells v Owners Corporation Strata Plan 33149

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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

  1. 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

  1. 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.

  2. 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.”

  3. Section 46PO(2) of the Act provides that such applications must be made within sixty days of the date of the…

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Details
Case
[2015] FCCA 1920
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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