Shih v The Owners - Strata Plan No 87879

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Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Shih & ors v The Owners - Strata Plan No 87879 [2018] NSWCATCD 74
Hearing dates: 12 November 2018
Date of orders: 28 November 2018
Decision date: 28 November 2018
Jurisdiction:Consumer and Commercial Division
Before: P Boyce, Senior Member
Decision:

1. The Tribunal orders that the respondent, The Owners-Strata Plan No 87879, pays to the applicants, Susan Shih, Virginia Shih and Emiliano Shih, the amount of $542.86 immediately.
2. Otherwise the application is dismissed.

Catchwords: LAND LAW - Strata titles - lot owner – damages –deferred - action taken by the owners corporation against builder
Legislation Cited: Strata Schemes Management Act 2015 (NSW)
Cases Cited: Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCA 36; 254 CLR 185
Hasell v Bagot, Shakes & Lewis Ltd [1911] 13 CLR
Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157; 12 BPR 23,673
Shum v Owners Corporation SP30621 [2017] NSWCATCD 68
Sotiros Shipping Inc. and Aeco Maritime S. A v Sameiet Solholt; ( The ‘Solholt’) (1983) 1 Lloyds Rep, 605
Steven Miller & Anor v Grosvenor Australia Pty Ltd [2017] NSWCATCD 42
TCN Channel 9 v Hayden Enterprises Pty Limited (1989) 16 NSWLR 130
The Owners Strata Plan No 6534 v El Khouri [2015] NSWCATCD 145
The Owners-Strata Plan No 76674 v Di Blasio Constructions Pty Ltd [2014] NSWSC 1067
Urban Traders v Paul Michael [2009] NSWSC 1072
Category:Principal judgment
Parties: Susan Shih, Virginia Shih and Emiliano Shih (Applicants)
The Owners-Strata Plan No 87879 (Respondent)
Representation:

Solicitors:
Kerin Benson Lawyers (Applicants)
Bannermans Lawyers (Respondent)

  Counsel:
J Liu (Applicants)
S Williamson-Solicitor Advocate (Respondent)
File Number(s): SC18/14261
Publication restriction: None

REASONS FOR DECISION

Application

  1. The applicants are the owners of a Lot 28 in Strata Plan 87879. The respondent is the owners’ corporation for Strata Plan 87879.

  2. By application filed with the Tribunal on 22 March 2018 the applicants’ commenced proceedings against the respondent seeking orders under s 232 and s 106 of the Strata Schemes Management Act 2015 (NSW) (“SSMA”) that:

  1. The respondent complete rectification works to the common property of the Strata Plan which has caused water penetrations to Lot 28; and

  2. The respondent pays compensation for loss of rent and the cost of replacing water-damaged carpet.

Legislative provisions and jurisdiction

  1. Section 232 of SSMA provides that the Tribunal may make an order to settle disputes or rectify complaints as follows:

232 Orders to settle disputes or rectify complaints

(1) Orders relating to complaints and disputes

The Tribunal may, on application by an interested person, original owner or building manager, make an order to settle a complaint or dispute about any of the following:

(a) the operation, administration or management of a strata scheme under this Act,

(b) an agreement authorised or required to be entered into under this Act,

(c) an agreement appointing a strata managing agent or a building manager,

(d) an agreement between the owners corporation and an owner,…

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Details
Case
[2018] NSWCATCD 74
Decision Date

CaseChat Overview and Summary

In the Civil and Administrative Tribunal of New South Wales, the case of Shih v The Owners – Strata Plan No 87879 was heard. The applicants, Susan Shih, Virginia Shih, and Emiliano Shih, sought damages against the respondent, The Owners-Strata Plan No 87879, which is the body corporate responsible for the strata plan. The applicants claimed that the respondent had failed to address a defect in their unit, which led to water damage. The respondents denied liability, asserting that they had taken appropriate steps to remedy the issue.

The legal issues that the Tribunal was required to decide included whether the respondent had breached its duty of care to the applicants by not adequately addressing the defect and whether the applicants' claims for damages were justified. The Tribunal also needed to determine whether the respondent's actions in pursuing legal proceedings against the builder constituted a valid defence against the applicants' claims.

The Tribunal found that the respondent had indeed breached its duty of care by not addressing the defect in a timely manner, resulting in damage to the applicants' unit. The Tribunal rejected the respondent's argument that its pursuit of legal action against the builder was a valid defence, holding that the respondent was still liable for the damage caused by the defect. The Tribunal concluded that the applicants were entitled to compensation for the damage caused by the water leak. The Tribunal ordered the respondent to pay the applicants the sum of $542.86 immediately, and dismissed the application in all other respects.

Orders

Orders of the court

1. The Tribunal orders that the respondent, The Owners-Strata Plan No 87879, pays to the applicants, Susan Shih, Virginia Shih and Emiliano Shih, the amount of $542.86 immediately.

2. Otherwise 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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