Rook v The Owners - Strata Plan No. 32865

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Rook v The Owners - Strata Plan No. 32865 [2022] NSWCATCD 38

Hearing dates:

4 March 2022

Date of orders:

24 March 2022

Decision date:

24 March 2022

Jurisdiction:

Consumer and Commercial Division

Before:

M Deane, Senior Member

Decision:

The application is dismissed.

Catchwords:

LAND LAW — Strata title — Common property — Maintenance and repair of common property

Legislation Cited:

Strata Schemes Management Act 2015 (NSW)

Cases Cited:

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

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

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Karen Rook (Applicant)
The Owners – Strata Plan No. 32865 (Respondent)

Representation:

Solicitors:
Pobi Lawyers (Applicant)
JS Mueller & Co (Respondent)

File Number(s):

SC 21/20027

Publication restriction:

Nil

REASONS FOR DECISION

background

1. Karen Rook (the Applicant) is the owner of Lot 5 of Strata Plan No 32865. On 6 May 2021 the Applicant lodged an application seeking orders against The Owners – Strata Plan No 32865 (the Respondent).

2. In points of claim submitted on 8 September 2021, the Applicant sought an order under ss 230 and 232 of the Strata Schemes Management Act 2015 (the SSMA) that the Respondents cause to be undertaken the full scope of remedial works detailed in the Tender Specification and Tender Assessment prepared by Bellmont Façade Engineering (the Bellmont report) (as detailed below). The Applicant also sought further orders that the Respondent comply with its statutory duty of repair and maintenance under s 106 of the SSMA and that the Respondent must not levy a contribution from the Applicant for its costs in the NCAT proceedings.

3. The Applicant’s request for an order for costs was withdrawn at the hearing, in light of legal representation previously having been granted on the condition that neither party would seek costs.

submissions

4. On behalf of the Applicant, it was submitted that the common property of the strata scheme was in disrepair, with cracking in the wall of the Applicant’s townhouse and the brick retaining wall at the south west corner of the scheme, as well as subsidence in the paving stones of the courtyard. Many reports had been undertaken but the OC had failed to act on any of the expert reports.

5. On behalf of the Respondent, it was submitted that the Applicant had taken a view on the work that needed to be done and had involved herself in dealing with the matter since 2011. Since then, there had been a litany of remedies proposed with no underlying engineering rationale. The Applicant was still asking for orders based on recommendations set out in a tender specification document.

6. The Respondent contended that the OC was ready and willing to comply with its obligations under s 106 of the SSMA and to carry out the work in the report provided by JKGeotechics dated 6 March 2020. Mr Pearce had returned in 2022 and confirmed that the report was still accurate.

7. The Respondent…