Wells v The Owners Strata Plan No 12159

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Wells v The Owners - Strata Plan No 12159 [2022] NSWCATCD 151

Hearing dates:

14 June 2022

Date of orders:

15 August 2022

Decision date:

15 August 2022

Jurisdiction:

Consumer and Commercial Division

Before:

G Sarginson, Senior Member

Decision:

(1) By ten (10) weeks from the date of this decision, The Owners - Strata Plan No 12159 is to cause the performance of the works set out in the scope of works contained in the quotation of Northern Beaches Drainage Pty Ltd dated 19 August 2021.

(2) The work in order 1 is to be performed by suitably licenced and insured tradespersons exercising due care and skill.

(3) The applicant is to provide reasonable access to his Lot to the extent necessary for order 1 to be complied with.

Catchwords:

LAND LAW---Strata title---Common property---Duty to repair---Breach of duty---Scope of works to repair

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Strata Schemes Management Act 2015 (NSW)

Cases Cited:

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

Category:

Principal judgment

Parties:

Gordon Wells (Applicant)
The Owners - Strata Plan No 12159 (Respondent)

Representation:

Applicant (self-represented)

C Greenough, Chairperson strata committee
(Respondent)

File Number(s):

SC 22/18157

Publication restriction:

Nil

REASONS FOR DECISION

1. The proceedings involve a longstanding dispute between the applicant (the owner of Lot 14) and the respondent (the owners corporation) regarding allegedly inadequate drainage and waterproofing causing water ingress to an underground basement garage.

2. The hearing occurred on 14 June 2022. The applicant appeared in person with a “friend” Ms George (Ms George did not seek to represent the applicant; and he presented his own evidence and arguments to the Tribunal). Ms Greenough, Chairperson of the strata committee, represented the respondent. Ms Greenough appeared by video-link.

3. Neither party sought an adjournment of the hearing. No expert witnesses were required for cross examination. Oral evidence and submissions were given by the applicant and Ms Greenough.

4. As noted in procedural directions on 17 May 2022, the only order sought by the applicant in the proceedings was an order for repairs on the basis that the respondent was non-compliant with its duty to keep and maintain common property in a state of good and serviceable repair under s 106 (1) of the Strata Schemes Management Act 2015 (NSW) (‘the SSM Act’).

5. The walls of the underground garage; and landscaped areas proximate to the garage (involving lawns, shrubs, gardens and paths) are common property. The relevant internal area of the underground garage pertaining to Lot 14 is Lot property; although the garage contains parking spaces for other Lot owners (which are part of their Lot property) and visitors parking (which is common property).

6. The applicant purchased his Lot in about 1982 and resides in the strata building. The strata building was constructed in about 1977.

7. According to the applicant, for many years the respondent has failed to perform repairs to inadequate drainage and waterproofing of the wall…