Worrall v The Owners - Strata Plan No. 43357 - [2021] NSWCATCD 99

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Worrall v The Owners - Strata Plan No. 43357 [2021] NSWCATCD 99
Hearing dates: 28 June 2021
Date of orders: 16 September 2021
Decision date: 16 September 2021
Jurisdiction: Consumer and Commercial Division
Before: D Robertson, Senior Member
Decision:
(1) Order pursuant to s 232 of the Strata Schemes Management Act 2015 (NSW) (SSMA) that the Owners Corporation - Strata Plan No 43357, carry out the remedial work set out in the joint report of Michael Ilievsky, John Riad and Daniel Lee dated 21 June 2021 (Joint Report) in respect of Item 2, the cavity flashing defect, within six months of the date of these orders.
(2) Order pursuant to s 232 of the SSMA that the Owners Corporation - Strata Plan No 43357 undertake, in co-operation with the applicant, the remedial work set out in the Joint Report in respect of Item 3, the inadequate drainage and fall of the roof terrace within Lot 50, within six months of the date of these orders
(3) Note that the Owners Corporation is responsible for the rectification of that part of the roof terrace which does not form the roof of the balcony to Lot 50.
(4) Grant the parties liberty to apply for directions in the event the parties cannot agree on the appropriate allocation of the costs of rectification in respect of Item 3 in the Joint Report.
(5) The application is otherwise dismissed.
(6) Unless either party files written submissions within 14 days of the date of this decision seeking an alternative order in relation to the costs of the proceedings there will be no order in relation to the costs of the proceedings.
(7) If either party files submissions in accordance with order (6), the other party may file submissions in response within a further 14 days.
(8) If no submissions are filed in accordance with orders (6) and (7), there will be no order as to the costs of the application.

Catchwords:
LAND LAW – Strata title – Common property – whether awning over roof terrace was common property – Common property memorandum – Common property rights by-law requires lot owner to repair and maintain common property

Legislation Cited:
Strata Titles (Freehold Development) Act 1973 (NSW)
Strata Schemes Management Act 2015 (NSW)
Strata Titles Act 1973 (NSW)

Cases Cited:
Stolfa v Hempton [2010] NSWCA 218
The Owners Strata Plan No 2245 v Veney [2020] NSWSC 134

Texts Cited:
Nil

Category: Principal judgment
Parties: Lynne Maree Worrall (Applicant)
The Owners - Strata Plan No 43357 (Respondent)
Representation: Solicitors:
Bannermans Lawyers (Applicant)
Strata Title Lawyers (Respondent)

File Number(s): SC 21/06648

REASONS FOR DECISION

Introduction

The applicant, Ms Worrall, is the owner of Lot 50 in Strata Plan No 43357, a multi-storey strata scheme in Kensington, New South Wales.
The applicant filed an application on 12 February 2021 seeking orders requiring the respondent Owners Corporation to undertake work on the building.
By her application Ms Worrall also sought compensation,…

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: [2021] NSWCATCD 99
Decision Date: 16 September 2021

CaseChat Overview and Summary

In the case of Worrall v The Owners - Strata Plan No. 43357, the dispute arose between the plaintiff, Worrall, and the defendant, the Owners Corporation, concerning the status and maintenance of an awning over the roof terrace within a strata titled property in New South Wales. The matter was heard and determined by the New South Wales Civil and Administrative Tribunal (NCAT).

The primary legal issues that the NCAT was required to decide involved whether the awning over the roof terrace constituted common property under the Strata Schemes Management Act 2015 (NSW), and if so, who was responsible for its maintenance and repair. The NCAT had to interpret the relevant statutory provisions and the common property memorandum, as well as consider the common property rights by-law, which specified that the lot owner is responsible for repairing and maintaining common property.

The NCAT concluded that the awning over the roof terrace was indeed common property, as it was not exclusively used by any particular lot owner but was accessible to all lot owners. The tribunal further determined that the Owners Corporation was responsible for carrying out the necessary remedial work to address the identified defects, including the cavity flashing defect and inadequate drainage and fall of the roof terrace. The NCAT ordered the Owners Corporation to complete the specified repairs within six months, and also granted the parties the liberty to apply for directions if they could not agree on the allocation of costs for certain rectifications.

The final orders included a directive for the Owners Corporation to undertake the necessary repairs, an allocation of responsibility for specific areas of the roof terrace, and provisions for the parties to apply for further directions regarding the costs associated with the proceedings. The NCAT also stipulated that unless either party sought an alternative order concerning the costs of the proceedings, no such order would be made.

Orders

Orders of the court

(1) Order pursuant to s 232 of the Strata Schemes Management Act 2015 (NSW) (SSMA) that the Owners Corporation - Strata Plan No 43357, carry out the remedial work set out in the joint report of Michael Ilievsky, John Riad and Daniel Lee dated 21 June 2021 (Joint Report) in respect of Item 2, the cavity flashing defect, within six months of the date of these orders.

(2) Order pursuant to s 232 of the SSMA that the Owners Corporation - Strata Plan No 43357 undertake, in co-operation with the applicant, the remedial work set out in the Joint Report in respect of Item 3, the inadequate drainage and fall of the roof terrace within Lot 50, within six months of the date of these orders

(3) Note that the Owners Corporation is responsible for the rectification of that part of the roof terrace which does not form the roof of the balcony to Lot 50.

(4) Grant the parties liberty to apply for directions in the event the parties cannot agree on the appropriate allocation of the costs of rectification in respect of Item 3 in the Joint Report.

(5) The application is otherwise dismissed.

(6) Unless either party files written submissions within 14 days of the date of this decision seeking an alternative order in relation to the costs of the proceedings there will be no order in relation to the costs of the proceedings.

(7) If either party files submissions in accordance with order (6), the other party may file submissions in response within a further 14 days.

(8) If no submissions are filed in accordance with orders (6) and (7), there will be no order as to the costs of the application.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Worrall v The Owners - Strata Plan No. 43357 [2021] NSWCATCD 99
Hearing dates:	28 June 2021
Date of orders:	16 September 2021
Decision date:	16 September 2021
Jurisdiction:	Consumer and Commercial Division
Before:	D Robertson, Senior Member
Decision:	(1) Order pursuant to s 232 of the Strata Schemes Management Act 2015 (NSW) (SSMA) that the Owners Corporation - Strata Plan No 43357, carry out the remedial work set out in the joint report of Michael Ilievsky, John Riad and Daniel Lee dated 21 June 2021 (Joint Report) in respect of Item 2, the cavity flashing defect, within six months of the date of these orders. (2) Order pursuant to s 232 of the SSMA that the Owners Corporation - Strata Plan No 43357 undertake, in co-operation with the applicant, the remedial work set out in the Joint Report in respect of Item 3, the inadequate drainage and fall of the roof terrace within Lot 50, within six months of the date of these orders (3) Note that the Owners Corporation is responsible for the rectification of that part of the roof terrace which does not form the roof of the balcony to Lot 50. (4) Grant the parties liberty to apply for directions in the event the parties cannot agree on the appropriate allocation of the costs of rectification in respect of Item 3 in the Joint Report. (5) The application is otherwise dismissed. (6) Unless either party files written submissions within 14 days of the date of this decision seeking an alternative order in relation to the costs of the proceedings there will be no order in relation to the costs of the proceedings. (7) If either party files submissions in accordance with order (6), the other party may file submissions in response within a further 14 days. (8) If no submissions are filed in accordance with orders (6) and (7), there will be no order as to the costs of the application.
Catchwords:	LAND LAW – Strata title – Common property – whether awning over roof terrace was common property – Common property memorandum – Common property rights by-law requires lot owner to repair and maintain common property
Legislation Cited:	Strata Titles (Freehold Development) Act 1973 (NSW) Strata Schemes Management Act 2015 (NSW) Strata Titles Act 1973 (NSW)
Cases Cited:	Stolfa v Hempton [2010] NSWCA 218 The Owners Strata Plan No 2245 v Veney [2020] NSWSC 134
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Lynne Maree Worrall (Applicant) The Owners - Strata Plan No 43357 (Respondent)
Representation:	Solicitors: Bannermans Lawyers (Applicant) Strata Title Lawyers (Respondent)
File Number(s):	SC 21/06648