The Owners - Strata Plan No 74232 v Tezel

The Owners - Strata Plan No 74232 (the Owners Corporation) appealed to the Court of Appeal of New South Wales against a decision of the Civil and Administrative Tribunal of New South Wales (NCAT). The dispute concerned a claim by Ms Tezel, a lot owner, for recovery of loss of rent allegedly suffered due to the Owners Corporation's breach of its obligation to maintain and repair common property, which resulted in water leakage affecting her unit. Ms Tezel sought to recover this loss of rent pursuant to section 106(5) of the *Strata Schemes Management Act 2015* (NSW).

The primary legal issues before the Court of Appeal were whether Ms Tezel's claim for loss of rent was time-barred by section 106(6) of the *Strata Schemes Management Act 2015* (NSW), and if so, when she first became aware of "the loss" for the purposes of that limitation period. This involved interpreting whether "the loss" referred to the general type of loss recoverable under section 106(5) or the specific loss Ms Tezel was claiming. A further issue arose regarding whether the grounds of Ms Tezel's cross-appeal raised questions of law, as required for an appeal with leave.

The Court of Appeal considered the interpretation of section 106(6), which imposes a time limit for claims under section 106(5). The court determined that "the loss" in section 106(6) referred to the particular loss being claimed, not merely the type of loss. Applying this interpretation, the court found that Ms Tezel's claim was time-barred because she had become aware of the particular loss of rent in 2016, well before the limitation period expired on 6 November 2018. The court also found that the grounds of Ms Tezel's cross-appeal did not raise questions of law.

Consequently, the Court of Appeal allowed the Owners Corporation's appeal, set aside the orders of the NCAT Appeal Panel, and ordered that Ms Tezel's appeal to NCAT be dismissed. Leave to cross-appeal was refused, and Ms Tezel was ordered to pay the Owners Corporation's costs of the appeal and the proceedings before the Appeal Panel.