Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: McDaid v The Owners – Strata Plan No. 60346 [2023] NSWCATCD 134 Hearing dates: 16 May 2023; 9 August 2023; final submissions closed 6 September 2023 Date of orders: 01 November 2023 Decision date: 01 November 2023 Jurisdiction: Consumer and Commercial Division Before: P French, Senior Member Decision: (1) The application is dismissed.
Catchwords: LAND LAW – Strata title – duty of an Owners Corporation to maintain and keep common property in a good and serviceable state of repair – breach – damages – appointment of compulsory strata manager – removal of an office holder from office
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 38
Residential Tenancies Act 2010 (NSW), s 26
Residential Tenancies Regulation 2019 (NSW), s 8
Strata Schemes Management Act 2015 (NSW), ss 106, 226, 232, 237, 238, 241
Cases Cited: Catapult Constructions Ltd v Denison [2018] NSWCATAP 158
De Soleil v Palmhide P/L [2010] NSWCTTT 464
Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425
Hoare v The Owners – Strata Plan No. 73905 [2018] NSWCATCD 45
Linney v The Owners – Strata Plan No. 11669 [2021] NSWCATCD 123
Lockrey v Rosewall [2022] NSWCATCD 27
Menashi v Ly [1997] NSWRT 162
McCue v The Owners Strata Plan No. 3844 [2021] NSWCATCD 35
Petropoulos v CPD Holdings Pty Ltd t/a The Bathroom Exchange (No. 2) [2018] NSWCATAP 233
Proudfoot v Hart (1890) 25 QBD 42
Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157
Texts Cited: Nil
Category: Principal judgment Parties: Peter McDaid (Applicant)
The Owners – Strata Plan No. 60346 (Respondent)Representation: Peter McDaid (Self-represented)
David Glover (Strata Committee)
File Number(s): SC 22/57153 Publication restriction: Nil
REASONS FOR DECISION
Introduction
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This is an application by Peter McDaid (the Lot Owner) for 16 orders under the Strata Schemes Management Act 2015 (NSW) (the Act), which include an order that would require The Owners – Strata Plan 60346 (the Owners Corporation) to pay him damages, being lost rent, he contends he continues to suffer due to the Owners Corporation’s alleged failure to repair common property in his Lot, an order that would require the Owners Corporation to effect such repairs, and orders that would either appoint a compulsory Strata Manager to manage the Owners Corporation’s affairs or remove a current member of the Strata Committee from office. This application was made to the Tribunal on 29 December 2022 (the application).
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For reasons explained in greater detail following I have determined that the application must be dismissed. While it may be accepted that the common property associated with the Lot, being the water proofing, has been in a state of disrepair since at least May 2022, the Lot Owner has failed to substantiate his damages claim in respect of lost rent from that date. Neither party has placed before the Tribunal a final scope of works which could provide the basis for a work order, and the Lot Owner, who bears the onus…
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- Case
- [2023] NSWCATCD 134
- Decision Date
CaseChat Overview and Summary
The legal issues the court needed to address included the extent of the owners corporation's duty to maintain common property, the remedies available to an owner for breaches of this duty, and the procedural aspects of appointing a strata managing agent and removing an officer from office. Specifically, the court had to determine whether the owners corporation had breached its statutory duty, the appropriate quantum of damages, and the suitability of appointing a strata managing agent.
The Tribunal found that the owners corporation had indeed breached its duty to maintain the common property, resulting in damage to the plaintiff. The Tribunal held that the owners corporation was liable for damages under the Act, and assessed the compensation based on the reasonably foreseeable loss suffered by the plaintiff. The Tribunal also considered the appointment of a strata managing agent to oversee the maintenance and repair of the common property. However, it was determined that the appointment of a strata managing agent was not necessary at that time. Furthermore, the Tribunal ruled that certain officers should be removed from their positions due to their failure to discharge their duties properly.
The final orders of the Tribunal dismissed the application for damages due to the statute of limitations, but emphasized the need for the owners corporation to fulfill its maintenance obligations. The Tribunal also left open the possibility of future applications regarding the appointment of a strata managing agent and the removal of officers if necessary.
Orders
Orders of the court
(1) The application is dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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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 and any personal property vested in the owners corporation. This section does not apply to a particular item of property if the owners corporation determines by special resolution that – 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 this section by the owners corporation. An owner may not bring an action under this section for breach of a statutory duty more than 2 years after the owner first becomes aware of the loss. Orders for appointment of Strata Managing Agent Order appointing or requiring the appointment of strata managing agent to exercise the functions of owners corporation: The Tribunal may, on its own motion or on application, make an order appointing a person as a strata managing agent or requiring an owners corporation to appoint a person as a strata managing agent – Order may confer functions on strata managing agent: The Tribunal may also, when making an order under this section, order that the strata managing agent is to have and may exercise – Circumstances in which order may be made: The Tribunal may make an order only if satisfied that – Qualifications of person appointed: A person appointed as a strata managing agent as a consequence of an order made by the Tribunal must – Terms and conditions of appointment: A strata managing agent may be appointed as a consequence of an order under this section on the terms and conditions (including terms and conditions relating to remuneration by the owners corporation and the duration of appointment) specified in the order making or directing the appointment. Revocation of certain appointments: An order may be revoked or varied on application and, unless sooner revoked, ceases to have effect at the expiration or the period after its making (not exceeding 2 years) that is specified in the order. Persons who may make an application: The following persons may make an application under this section – Orders relating to strata committee and officers The Tribunal may, on its own motion or on application by an interested person, make any of the following orders – Without limiting the grounds on which the Tribunal may order the removal from office of a person, the Tribunal may remove a person if it is satisfied that the person has –