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Vickery v The Owners Strata Plan 80412

Vickery v The Owners Strata Plan 80412

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Case Copied 11 November 2020 74 min read

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Court of Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Vickery v The Owners – Strata Plan No 80412 [2020] NSWCA 284
Hearing dates: 18 June 2020
Decision date: 11 November 2020
Before: Basten JA at [1];
Leeming JA at [65];
White JA at [158].
Decision:
1. Grant the applicant leave to appeal from the decisions of the Appeal Panel given on 15 January and 17 March 2020.
2. Allow the appeal and set aside the following orders:
(a) orders 1 and 2 made on 15 January 2020, and
(b) orders 1, 2 and 3 made on 17 March 2020.
3. Remit the matter to the Appeal Panel to determine any outstanding issues raised by the notice of appeal filed in the Tribunal on 15 November 2019, including the costs of and incidental to the proceedings heard by the Appeal Panel on 19 December 2019.
4. Order that the respondent pay the applicant’s costs in this Court.

Catchwords:
STRATA TITLES – obligation of owners corporation to maintain common property in good repair – owners corporation breached obligation, causing damage to lot owner – NCAT authorised to make orders to “settle” a complaint or dispute about strata scheme – whether NCAT authorised to award damages to lot owner – consideration of nature of lot owner’s cause of action – consideration of conferral of jurisdiction and power upon NCAT – consideration of legislative history – consideration of interaction of jurisdiction of courts and NCAT – appeal allowed, NCAT authorised to award damages.
TORT – breach of statutory duty – statute authorised lot owner to recover damages for breach of statutory duty – consideration of nature of lot owner’s cause of action.

Legislation Cited:
Agricultural Tenancies Act 1990 (NSW), s 21
Animals Act 1971 (UK)
Animals Act 1977 (NSW), s 7
Anti-Discrimination Act 1977 (NSW), 108
Australian Consumer Law, ss 236, 237
Civil and Administrative Tribunal Act 2013 (NSW), ss 4, 7, 28, 29, 36, 38, 45, 50, 60, 80, 83; Sch 4, cll 3, 5
Civil Liability Act 2002 (NSW), ss 5B, 5D, 43, 45
Civil Procedure Act 2005 (NSW), ss 56, 98
Commercial Arbitration Act 2010 (NSW), s 30
Companion Animals Act 1998 (NSW), ss 25-28
Constitution, ss 51(xxxv), 92
Conveyancing(Strata Titles) Act 1961 (NSW), s 15
Courts of Petty Sessions (Civil Claims) Act 1970
Disability Discrimination Act 1995 (UK)
District Court Act 1973 (NSW), s 44
Fair Trading Act 1987 (NSW), s 79S
Home Building Act 1989 (NSW), s 48K
Industrial Relations Act 1996 (NSW), ss 86, 100E, 348(7)
Interpretation Act 1987 (NSW), s 35
Landlord and Tenant (Amendment) Act 1948 (NSW)
Justices Act 1902 (NSW)
Local Court Act 2007 (NSW), s 30
Motor Dealers and Repairers Act 2013 (NSW), s 112
Residential Tenancies Act 2010 (NSW), s 187
Residential Tenancies Regulation 2019, s 40
Retail Leases Act (NSW), ss 72 and 73
Strata Schemes Development Act 2015 (NSW), s 24
Strata Schemes Management Act 1996 (NSW), ss 62, 131, 138, 140-161, 207, 217-219,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWCA 284
Decision Date: 11 November 2020

CaseChat Overview and Summary

The applicant, a lot owner, brought proceedings against the respondent, the Owners Strata Plan 80412, alleging that the Owners Corporation had breached its statutory obligation to maintain common property in good repair, causing damage to the applicant's lot. The dispute ultimately came before the Court of Appeal of New South Wales, which considered whether the NSW Civil and Administrative Tribunal (NCAT) was authorised to award damages to a lot owner in such circumstances.

The central legal issue was whether NCAT possessed the power to award damages to a lot owner for a breach of the Owners Corporation's statutory duty to maintain common property. This required the court to consider the nature of the lot owner's cause of action, the scope of the jurisdiction and powers conferred upon NCAT by the relevant legislation, the legislative history surrounding these provisions, and the interaction between the jurisdiction of the courts and NCAT.

The Court of Appeal reasoned that the legislative framework, particularly the provisions concerning the obligation to maintain common property and the powers of NCAT to "settle" complaints or disputes, did not preclude the award of damages. The court found that a lot owner's cause of action for breach of statutory duty was a recognised legal claim, and that NCAT was empowered to make orders necessary to resolve such disputes, including the award of damages. The court allowed the appeal, setting aside previous orders of the Appeal Panel and remitting the matter for determination of outstanding issues.

Orders

Orders of the court

1. Grant the applicant leave to appeal from the decisions of the Appeal Panel given on 15 January and 17 March 2020.

2. Allow the appeal and set aside the following orders:

(a) orders 1 and 2 made on 15 January 2020, and

(b) orders 1, 2 and 3 made on 17 March 2020.

3. Remit the matter to the Appeal Panel to determine any outstanding issues raised by the notice of appeal filed in the Tribunal on 15 November 2019, including the costs of and incidental to the proceedings heard by the Appeal Panel on 19 December 2019.

4. Order that the respondent pay the applicant’s costs in this Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Vickery v The Owners – Strata Plan No 80412 [2020] NSWCA 284
Hearing dates:	18 June 2020
Decision date:	11 November 2020
Before:	Basten JA at [1]; Leeming JA at [65]; White JA at [158].
Decision:	1. Grant the applicant leave to appeal from the decisions of the Appeal Panel given on 15 January and 17 March 2020. 2. Allow the appeal and set aside the following orders: (a) orders 1 and 2 made on 15 January 2020, and (b) orders 1, 2 and 3 made on 17 March 2020. 3. Remit the matter to the Appeal Panel to determine any outstanding issues raised by the notice of appeal filed in the Tribunal on 15 November 2019, including the costs of and incidental to the proceedings heard by the Appeal Panel on 19 December 2019. 4. Order that the respondent pay the applicant’s costs in this Court.
Catchwords:	STRATA TITLES – obligation of owners corporation to maintain common property in good repair – owners corporation breached obligation, causing damage to lot owner – NCAT authorised to make orders to “settle” a complaint or dispute about strata scheme – whether NCAT authorised to award damages to lot owner – consideration of nature of lot owner’s cause of action – consideration of conferral of jurisdiction and power upon NCAT – consideration of legislative history – consideration of interaction of jurisdiction of courts and NCAT – appeal allowed, NCAT authorised to award damages. TORT – breach of statutory duty – statute authorised lot owner to recover damages for breach of statutory duty – consideration of nature of lot owner’s cause of action.
Legislation Cited:	Agricultural Tenancies Act 1990 (NSW), s 21 Animals Act 1971 (UK) Animals Act 1977 (NSW), s 7 Anti-Discrimination Act 1977 (NSW), 108 Australian Consumer Law, ss 236, 237 Civil and Administrative Tribunal Act 2013 (NSW), ss 4, 7, 28, 29, 36, 38, 45, 50, 60, 80, 83; Sch 4, cll 3, 5 Civil Liability Act 2002 (NSW), ss 5B, 5D, 43, 45 Civil Procedure Act 2005 (NSW), ss 56, 98 Commercial Arbitration Act 2010 (NSW), s 30 Companion Animals Act 1998 (NSW), ss 25-28 Constitution, ss 51(xxxv), 92 Conveyancing(Strata Titles) Act 1961 (NSW), s 15 Courts of Petty Sessions (Civil Claims) Act 1970 Disability Discrimination Act 1995 (UK) District Court Act 1973 (NSW), s 44 Fair Trading Act 1987 (NSW), s 79S Home Building Act 1989 (NSW), s 48K Industrial Relations Act 1996 (NSW), ss 86, 100E, 348(7) Interpretation Act 1987 (NSW), s 35 Landlord and Tenant (Amendment) Act 1948 (NSW) Justices Act 1902 (NSW) Local Court Act 2007 (NSW), s 30 Motor Dealers and Repairers Act 2013 (NSW), s 112 Residential Tenancies Act 2010 (NSW), s 187 Residential Tenancies Regulation 2019, s 40 Retail Leases Act (NSW), ss 72 and 73 Strata Schemes Development Act 2015 (NSW), s 24 Strata Schemes Management Act 1996 (NSW), ss 62, 131, 138, 140-161, 207, 217-219,…