McCue v Owners SP 3844

[2021] NSWCATCD 35

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

McCue v The Owners Strata Plan No 3844 [2021] NSWCATCD 35

Hearing dates:

20 May 2021

Date of orders:

21 July 2021

Decision date:

21 July 2021

Jurisdiction:

Consumer and Commercial Division

Before:

G J Sarginson, Senior Member

Decision:

1. The Owners Strata Plan No 3844 is to repair cracks to the common property bathroom wall of Lot 1 by the installation of helifix ties across the cracking; localised replacement of cracked tiling; raking and repointing of cracked mortar joint; render removal and replacement; and localised waterproofing of the walling at the tiling replacement; as set out in the scope of works at paragraph 5.1 of the report of Mr Fowler, structural engineer, dated 25 January 2021. Such work is to be completed by 29 October 2021.

2. The work in order 1 above is to be performed by suitably licensed tradespersons.

3. The owner of Lot 1 is to provide reasonable access to the Lot so that the work order can be complied with.

4. The Owners Strata Plan No 3844 is to pay Caitlin McCue $1,650 by 14 days from the date of this decision.

Catchwords:

STRATA TITLE---Repair of common property---Whether duty breached---Appropriate remedial orders

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Evidence Act 1995 (NSW)

Strata Schemes Management Act 2015 (NSW)

Cases Cited:

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

Lonergan v The Owners Strata Plan No 16519 [2020] NSWCATAP 177

Seiwa Australian Pty Ltd v Owners Strata Plan 25042 [2006] NSWSC 115

The Owners Strata Plan No 80412 v Vickery [2021] NSWCATAP 98

The Owners Strata Plan SP 20211 v Rosenthal; Rosenthal v The Owners Strata Plan SP 20211 [2018] NSWCATAP 243

Texts Cited:

Not applicable

Category:

Principal judgment

Parties:

Caitlin McCue (Applicant)

The Owners - Strata Plan No.3844 (First Respondent)

Denise Fisher (Second Respondent)

Representation:

C. McCue (Self-Represented Applicant)

D. Amentas (Solicitor, First Respondent)

Solicitors:

Clyde & Co (First Respondent)

File Number(s):

SC 20/22911

Publication restriction:

Nil

REASONS FOR DECISION

1. This is a strata scheme dispute involving a strata building located in the inner-west of Sydney NSW. There are 4 Lots in the strata scheme.

2. The hearing was conducted by telephone.

3. At the hearing on 20 May 2021, the applicant appeared and gave evidence. The applicant’s mother also was also present at the hearing. Mr Amentas, Solicitor, appeared for the first respondent (‘the owners corporation’).

4. There was no appearance by the second respondent, Ms Fischer. The Tribunal was informed that Ms Fisher had sold her Lot. The Tribunal left a voicemail message on Ms Fisher’s number, but not contact was made by her to the Tribunal in respect of the hearing. The Tribunal determined it was appropriate for the hearing to proceed in the absence of the second respondent.

5. The dispute involves whether or not the owners corporation of the strata scheme has breached its duties under s 106 of the Strata Schemes Management Act 2015 (NSW) (‘the SSMA’)

6. The…