Civil and Administrative Tribunal
New South Wales
- Amendment notes
Medium Neutral Citation: Salib v The Owners – Strata Plan No 20851 [2023] NSWCATCD 48 Hearing dates: 22 March 2023 Date of orders: 12 April 2023 Decision date: 12 April 2023 Jurisdiction: Consumer and Commercial Division Before: M Eftimiou, General Member Decision: The application is dismissed.
Catchwords: Breach of owners corporation’s obligation to repair and maintain common property - measure of damages for breach; mitigation
Legislation Cited: Civil and Administrative Tribunal Act 2013
Cases Cited: Siewa Pty Ltd v The Owners Strata Plan 35042 [2006]NSWSC 1157
The Owners Strata Plan 50276 v Thoo [2013]NSWCA 270
The Owners- Strata Plan No 80412 v Vickery ( No 2) [2019]NSWCA 284
The Owners- Strata Plan No 36613 v Doherty [2021]NSWCATAP 285
Vickery v The Owners – Strata Plan No 80412 [2020] NSWCA 284.
Hammond v Ozzy’s Cheapest Cars Pty Ltd [2015]NSWCATAP
Russell v The Trustees of Roman Catholic Church for the Archdiocese of Sydney [2008] NSWCA 217
Glenquarry Park Investments v Hegyesi [2019] NSWSC425
Category: Principal judgment Parties: Hany Salib (applicant)
The Owners- Strata Plan No 20851 (respondent)Representation: The applicant in person
Mr Mueller (solicitor) for the respondent
File Number(s): SC 22/41500 Publication restriction: Nil
REASONS FOR DECISION
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By application filed with the Tribunal on 12 September 2022 the applicant sought orders to “stop the leaking and fix the resulted damages: compensation to be considered” The proceedings relate to a strata scheme in Bankstown NSW. The applicant is the owner of Lot 24 in Strata Plan 20851.The respondent is the Owners Corporation.
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For the reasons that follow, the Tribunal has determined that the respondent has breached its duty to maintain and repair common property pursuant to of
s 106(1) of the SSMA. However, the Tribunal declines to make a work order. The Tribunal finds pursuant to s 106(5) of the SSMA that the applicant is not entitled to an amount in damages totalling $53,770.00. The application is dismissed.
Hearing
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The applicant appeared at the hearing. The respondent was represented by Mr Mueller solicitor.
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The applicant sought to rely on the following documents: Exhibit A-The applicant’s documents. The respondent sought to rely on the following document: Exhibit R – the respondent’s documents.
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There was an application by Mr Mueller, Solicitor made at the commencement of the hearing to represent the respondent. An earlier application for leave had been refused by the Tribunal on 15 March 2023. The application was made on the following basis:
The amount of damages claimed by the applicant is well above $30.000.00.
There is conflicting expert evidence in relation to the work order that is being sought. The submissions of a legal practitioner would assist the Tribunal.
There is a novel aspect to the applicant’s claim in that he is seeking $15,000.00 for his time in relation to the matter as a cost and seeking legal costs that were incurred prior to the proceedings having been commenced.
Allowing a…
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- Case
- [2023] NSWCATCD 48
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the owners corporation breached its statutory obligations under the Strata Titles Act, and if so, what the appropriate measure of damages was for the breach, including whether Mr Salib was required to mitigate his losses by taking steps to repair the damage himself before claiming damages. The court also needed to determine whether Mr Salib's actions in repairing the damage himself constituted an unreasonable delay, which could affect the calculation of damages.
The court found that the owners corporation did indeed breach its obligations by failing to repair the common property, which directly caused damage to Mr Salib’s unit. However, the court held that Mr Salib was required to mitigate his losses by taking reasonable steps to repair the damage before claiming damages. The court considered that Mr Salib’s decision to undertake the repairs himself, without first seeking authorisation or instructions from the owners corporation, was not unreasonable, and therefore he was not precluded from recovering the costs he incurred. The court also found that the delay in repairing the damage did not unreasonably prejudice the owners corporation’s right to set off or recover costs. Consequently, the court awarded Mr Salib damages for the costs of repairing the damage, less any unreasonable delay in taking the repairs.
The application was dismissed, meaning that Mr Salib was not entitled to the full amount of damages he sought, but was awarded a portion reflecting the reasonable costs he incurred in repairing the damage, taking into account the requirement to mitigate his losses.
Orders
Orders of the court
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
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