The Owners Strata Plan No 60182 v Bornzin

The Owners Strata Plan No 60182 brought an application against Bornzin seeking orders under the Strata Schemes Management Act 1996 (NSW) to perform work on a common property balcony. The dispute arose after the owners corporation issued a notice under section 166 of the Act to Bornzin to repair the balcony, which she failed to do. The owners corporation sought to enforce the notice by applying to the Civil and Administrative Tribunal (CAT) for an order under section 168 of the Act. The application was heard by the Tribunal, which made an order on 22 April 2016 requiring Bornzin to carry out the repairs. Bornzin did not comply with the order, and the owners corporation applied to the Tribunal for an order for possession of the common property to enable the work to be done. The Tribunal made an order on 12 October 2017 for possession, which was not complied with by Bornzin. The owners corporation then applied to the Tribunal for an order for possession to be enforced by a third party, and this was granted on 10 September 2018. Bornzin appealed against the order for possession, and the appeal was dismissed by the Supreme Court on 10 May 2019.

The legal issues before the Tribunal were whether the orders for possession had expired, whether Bornzin had failed to comply with the orders, and whether the owners corporation should be granted access to perform the work. The Tribunal held that the orders for possession had not expired, as they were subject to the operation of the transitional and savings provisions of the Strata Schemes Management Act 2015 (NSW). The Tribunal also found that Bornzin had failed to comply with the orders, as she had not carried out the required repairs or allowed access to the common property. Finally, the Tribunal held that the owners corporation should be granted access to perform the work, as the orders for possession authorised this and there was no valid reason for Bornzin to prevent it.

In reaching its decision, the Tribunal considered the relevant provisions of the Strata Schemes Management Act 1996 (NSW) and the Strata Schemes Management Act 2015 (NSW), as well as relevant case law. The Tribunal found that the orders for possession were still in force and that Bornzin had failed to comply with them. The Tribunal also found that the owners corporation was entitled to enforce the orders by obtaining possession of the common property and carrying out the required work. The Tribunal rejected Bornzin's arguments that the orders had expired, that there was no valid reason to grant access, and that the owners corporation had not acted in accordance with the Act.

The orders made by the Tribunal were that the application be dismissed, and that any costs application by the respondent be made in writing to the Tribunal supported by written submissions not exceeding 5 pages and with a copy sent to the other party on or before 14 days from the date of this decision. The submission is to include reference as to whether the party submits to the issue of costs being determined without a further oral hearing under section 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). If any costs application is made, the applicant is to file and serve written submissions in reply on the issue of costs not exceeding 5 pages on or before 14 days thereafter. Subject to the submissions of the parties, the Tribunal may determine the issue of costs on the papers in accordance with section 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).