The Owners - Strata Plan 32735 v Heather Lesley-SWAN

The Owners – Strata Plan 32735 sought to appeal a decision made by the Local Court, in which they were awarded damages for lost rental due to the actions of the respondent, Heather Lesley-Swan. The owners corporation had breached its statutory duty to repair and maintain common property, leading to the lot owner undertaking repairs without permission. The owners corporation argued that the lot owner was not entitled to compensation for the expenses incurred and the lost rental, as the Act did not authorise the lot owner to determine the nature and extent of construction to be undertaken on common property or engage a contractor without the consent or approval of the owners corporation.

The legal issues in this case centred around whether the lot owner was entitled to be compensated for the expense incurred in undertaking rectification work on common property, and whether the lot owner was entitled to be compensated for the loss of rent attributable to the owners corporation's breach of its duty. The court needed to consider the statutory and other remedies available to the lot owner where the owners corporation was in breach of its statutory duty.

The court found that the Magistrate failed to resolve disputed issues of fact and did not provide proper reasons for the conclusions reached. The order awarding damages for lost rental claimed was set aside, and the rental claim was remitted to the Local Court for determination. The court emphasised the need for the tribunal to resolve issues of credibility and to apply the principles of judicial method of reasoning. The court also found that the evidence presented by the lot owner in relation to the market rental value was inadmissible and of little or no weight.

The court concluded that the claim for lost rental had a different basis to the claim for rectification costs, and it was necessary to determine whether it could be said to have been a recoverable loss. In light of the above, the court set aside the order in favour of the respondent on the rental claim and remitted the claim for lost rental to the Local Court for determination. The court did not make any final orders in this appeal, but rather directed that the rental claim be reconsidered by the Local Court.