Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Silberstein v The Owners – Strata Plan No. 55468 & Ors [2024] NSWCATCD 66 Hearing dates: 6, 7 and 8 June 2023 Date of orders: 08 November 2024 Decision date: 08 November 2024 Jurisdiction: Consumer and Commercial Division Before: D Goldstein. Senior Member Decision: (1) The Owners – Strata Plan No. 55468 must carry out the work described in Schedule 1 with due care and skill by 14 February 2025.
(2) A hearing on Jessica Silberstein re-opening her case is dispensed with pursuant to section 50(2) of the Civil and Administrative Tribunal Act 2013.
(3) Jessica Silberstein has leave to re-open her case to rely on her affidavit affirmed on 24 August 2023.
(4) The Owners – Strata Plan No. 55468 must pay Jessica Silberstein $316,128.43 immediately.
(5) Jessica Silberstein’s application against Strata Choice Pty Ltd is dismissed.
(6) Jessica Silberstein’s application against Hecker Australia Pty Ltd is dismissed.
(7) Jessica Silberstein’s case in negligence against
(8) Michael Adamo, Michael Hans Engelbert, William Paul O’Brien and Terrance Matthew Gagen is dismissed.
(9) Michael Adamo is removed from the strata committee of The Owners – Strata Plan No. 55468 and restrained from acting in the position of an office holder of The Owners – Strata Plan No. 55468 or as a strata committee member of The Owners – Strata Plan No. 55468 for a period of not less than one year from the date of making these orders.
(10) Jessica Silberstein’s application to remove William Paul O’Brien from the strata committee of The Owners – Strata Plan No. 55468 is dismissed.
(11) Jessica Silberstein’s application to remove Terrance Matthew Gagen from the strata committee of The Owners – Strata Plan No. 55468 is dismissed.
(12) In the event that a party is minded to make an application for costs, such application must be lodged in the Tribunal and served on/given to the costs respondent(s) within 21 days of the date of the orders in these proceedings either attaching or referring to the documents relied upon in support of the application.
(13) The costs respondent(s) will have 21 days after the date it, she or he receives the application to lodge in the Tribunal and serve on/give to the costs applicant her, his or its submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon.
(14) The parties must state in their submissions whether or not they consent to the costs application being determined on the basis of the parties written submissions and attached documents, if any, without the need for a hearing.
(15) Subject to the parties’ submissions, the Tribunal will determine any costs application made on the basis of the submissions and papers filed in the Tribunal.
Catchwords: LAND LAW – Strata title – Owners corporation - Common Property – Repair and Maintenance – Adequacy of work under section 106 of the Strata Schemes Management Act 2015 - Section 260…
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- Case
- [2024] NSWCATCD 66
- Decision Date
CaseChat Overview and Summary
The legal issues that the court was required to decide included whether the work done by the Owners corporation was adequate under section 106 of the Act, the interpretation of good faith in the context of strata management, the liability of the strata committee members, and the duty of care owed by the strata managing agent and building manager. Additionally, the court had to consider the applicability of loss of amenity and aggravated damages, and whether there was serious misconduct warranting the removal of a strata committee member. The court also needed to determine whether Silberstein's case could be re-opened to rely on an affidavit affirmed on 24 August 2023.
The court found that the Owners corporation had not carried out the necessary work with due care and skill as required by section 106 of the Act. It held that the work was inadequate and ordered the Owners corporation to remedy this by carrying out the specified work by a set deadline. The court also granted Silberstein leave to re-open her case based on the affidavit affirmed on 24 August 2023. The tribunal ordered that Silberstein be paid $316,128.43 immediately by the Owners corporation. The applications for damages against the strata managing agent, building manager, and individual strata committee members were dismissed. However, the court found serious misconduct by Michael Adamo and ordered his removal from the strata committee and restraint from acting as an office holder or strata committee member for at least one year. Applications to remove other committee members were dismissed.
The final orders of the tribunal included directives for the Owners corporation to perform specified repairs, granted Silberstein leave to re-open her case, ordered immediate payment, and dismissed various applications for damages and removal of committee members. The tribunal also outlined procedures for any subsequent applications for costs, including timeframes and the potential for written submissions without a hearing.
Orders
Orders of the court
(1) The Owners – Strata Plan No. 55468 must carry out the work described in Schedule 1 with due care and skill by 14 February 2025.
(2) A hearing on Jessica Silberstein re-opening her case is dispensed with pursuant to section 50(2) of the Civil and Administrative Tribunal Act 2013.
(3) Jessica Silberstein has leave to re-open her case to rely on her affidavit affirmed on 24 August 2023.
(4) The Owners – Strata Plan No. 55468 must pay Jessica Silberstein $316,128.43 immediately.
(5) Jessica Silberstein’s application against Strata Choice Pty Ltd is dismissed.
(6) Jessica Silberstein’s application against Hecker Australia Pty Ltd is dismissed.
(7) Jessica Silberstein’s case in negligence against
(8) Michael Adamo, Michael Hans Engelbert, William Paul O’Brien and Terrance Matthew Gagen is dismissed.
(9) Michael Adamo is removed from the strata committee of The Owners – Strata Plan No. 55468 and restrained from acting in the position of an office holder of The Owners – Strata Plan No. 55468 or as a strata committee member of The Owners – Strata Plan No. 55468 for a period of not less than one year from the date of making these orders.
(10) Jessica Silberstein’s application to remove William Paul O’Brien from the strata committee of The Owners – Strata Plan No. 55468 is dismissed.
(11) Jessica Silberstein’s application to remove Terrance Matthew Gagen from the strata committee of The Owners – Strata Plan No. 55468 is dismissed.
(12) In the event that a party is minded to make an application for costs, such application must be lodged in the Tribunal and served on/given to the costs respondent(s) within 21 days of the date of the orders in these proceedings either attaching or referring to the documents relied upon in support of the application.
(13) The costs respondent(s) will have 21 days after the date it, she or he receives the application to lodge in the Tribunal and serve on/give to the costs applicant her, his or its submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon.
(14) The parties must state in their submissions whether or not they consent to the costs application being determined on the basis of the parties written submissions and attached documents, if any, without the need for a hearing.
(15) Subject to the parties’ submissions, the Tribunal will determine any costs application made on the basis of the submissions and papers filed in the Tribunal.
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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