Wang v The Owners Strata Plan No. 88789

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Wang v The Owners – Strata Plan No. 88789 [2022] NSWCATCD 157

Hearing dates:

19 April 2022

Date of orders:

07 September 2022

Decision date:

07 September 2022

Jurisdiction:

Consumer and Commercial Division

Before:

P French, Senior Member

Decision:

(1) The Owners – Strata Plan No. 88789 must pay Yu Wang $3,604.00 immediately.

(2) The application is otherwise dismissed.

Catchwords:

LAND LAW – Strata title – common property – maintenance of common property – breach – damages – whether damages claim is out of time – whether compliance with duty to maintain the common property in good and serviceable repair has been deferred

Legislation Cited:

Strata Schemes Management Act 2015 (NSW) – s 106

Cases Cited:

Briginshaw v Briginshaw [1938] 60 CLR 336

Hadley v Baxendale [1854] EWHC J70

Siewa Pty Ltd v The Owners – Strata Plan 35042 [2006] NSWSC 1157

Tezel v The Owners – Strata Plan No 74232 [2022] NSWCATAP 149

The Owners - Strata Plan No 33368 v Gittins [2022] NSWCATAP 130

Wardley Australia Ltd [1991] FCAFC 314 (1991) 30 FCR 245

Category:

Principal judgment

Parties:

Yu Wang (Applicant)
The Owners – Strata Plan No. 88789 (Respondent)

Representation:

Applicant (self-represented)

Counsel:
A Power (Respondent)

Solicitor:
J S Mueller & Co (Respondent)

File Number(s):

SC 21/45413

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. This is an application by Yu Wang (the Lot Owner) for an order pursuant to s 106(5) of the Strata Schemes Management Act 2015 (SSM Act) that would require The Owners – Strata Plan No. 88789 (the Owners Corporation) to pay her damages $12,593.00 for lost rental and $1,911.00 for other loss she contends she has suffered as a result of the Owners Corporation’s breach of its statutory duty to maintain and keep the common property of the Strata Plan in a state of good and serviceable repair. This application was made to the Tribunal on 3 November 2021 (the application).

2. For the reasons set out following, the Tribunal has determined that the Lot Owner is entitled to an order for damages in the amount of $3,604.00 for loss of rent and damage to the interior of her Lot caused by flooding in February 2022. The balance of the claim has been dismissed. The claim for lost rent dating to September 2018 has been made outside the period permitted by s 106(6). The claim for lost rent and other damage dating to 2020 is in respect of a period where the Owners Corporation’s compliance with s 106(1) was deferred pursuant to s 106(4) because it was pursuing action against the builder (Icon) in the District Court. The Lot Owner has an arguable claim for damages for mould treatment in or after February 2022 but has filed no evidence of any such loss.

Procedural history

3. The application was first listed before the Tribunal, differently constituted, by telephone for Directions on 21 December 2021 in accordance…