Wells v The Owners Strata Plan No 12159

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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…

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Details
Case
[2022] NSWCATCD 151
Decision Date

CaseChat Overview and Summary

In the case of Wells v The Owners Strata Plan No 12159, the applicant, Mr. Wells, sought relief in the Supreme Court of New South Wales against the respondent, The Owners Strata Plan No 12159, over the alleged breach of duty by the respondent to repair common property. The central dispute concerned the scope of works necessary to repair the common property, which included a drainage system, and the refusal of the respondent to undertake specific repair works as recommended by a licensed tradesperson.

The primary legal issue before the court was the determination of the scope of works required to remedy the damage to the common property and whether the respondent had a duty to undertake those works. The court had to consider the obligations of the respondent under the Strata Titles Act 1985 (NSW) and relevant case law, particularly regarding the maintenance and repair of common property within a strata scheme. The court also examined whether the refusal to undertake the recommended works constituted a breach of the respondent's duty.

In delivering judgment, the court found that the respondent had indeed breached its duty to repair the common property. The evidence presented indicated that the drainage system was in need of repair and that the respondent's refusal to undertake the works as recommended by a licensed tradesperson constituted a breach of their statutory obligations. The court emphasised the importance of ensuring that repairs are carried out by suitably qualified and insured tradespersons exercising due care and skill. The court ordered that the respondent must engage licensed and insured tradespersons to perform the repair works within the specified timeframe. The applicant was also required to provide reasonable access to his lot to facilitate the execution of these works.

The court's final orders mandated that within ten weeks from the date of the decision, the respondent must undertake the repair works as outlined in the quotation provided by Northern Beaches Drainage Pty Ltd. The repairs must be carried out by suitably licensed and insured tradespersons exercising due care and skill. Additionally, the applicant must provide reasonable access to his lot to allow for the completion of these works.

Orders

Orders of the court

(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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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