Athens v The Owners – Strata Plan No. 47035 [2021] NSWCATCD 42

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Athens v The Owners – Strata Plan No. 47035 [2021] NSWCATCD 42 Hearing dates: 22-23 February 2021 Date of orders: 25 June 2021 Decision date: 25 June 2021 Jurisdiction: Consumer and Commercial Division Before: S A McDonald, Senior Member Decision: By consent, the Tribunal orders: 1. The Respondent, The Owners – Strata Plan no. 47035 (Respondent), do all things necessary to: (a) Install a canopy and screen (the canopy/screen) of the nature described in the report of Windtech Consultants Pty Limited dated 10 October 2016 before or in front of the external sliding doors of bedrooms 1 and 2 of Lot 42, the process of such work to include (but not limited to) the following: (i) the Respondent shall request Dr Leon Jacob to nominate three (3) appropriate persons or entities to design the canopy/screen; (ii) the Respondent will select one of the nominees to design the canopy/screen; (iii) the nominee selected by the Respondent is to certify the final construction and installation of the canopy/screen after its completion. (b) Perform the work the subject of item 6.1 in the Technical Report and Scope of Works Specification dated 11 December 2020 of Mr Illievski (Illievski Report); (c) Perform the work the subject of item 6.2 in the Illievski Report; (d) Perform the work the subject of item 6.3 in the Illievski Report; (e) Perform the works necessary to repair the edges of the concrete floor, including any associated cracking and indents, to enable the reinstatement of smooth edges and carpet; and (f) Instruct Mr Illievski to undertake an inspection to the adequacy of the waterproofing of the roof to Lot 42 within 6 months of these orders. 2. The works that are the subject of Order 1 are to completed within 6 months of the date of these orders or such other date as may be agreed between the Applicant, Peta Athens (Applicant) and the Respondent. 3. In the absence of any agreement for an extension of time pursuant to Order 2, each of the parties has leave to bring a renewal application, or any other application in the Tribunal in respect of such works or the time for completing such works. 4. The Applicant is to give the Respondent, its agents, employees, contractors and any other persons such access to Lot 42 as is required to carry out the works (including but not limited to, access for the purpose of observing, tendering, fabricating, installing, make good, defect rectification and other necessary and ancillary works) the subject of Order 1, on the provision of 72 hours written notice by email addressed to his solicitor, John Theodoropoulos, of Konstan Lawyers, and to the Applicant directly as well. 5. Any building or development approval required and made in respect of the Order 1(a) works by either or both of the Applicant and the Respondent shall be supported by the other party, with such party to do all things necessary and give such consents and sign such documents as are required to obtain such approval; and The Tribunal notes the agreement of the parties that: 6. Order 1(a) is without prejudice to the parties seeking such by-laws as are necessary and appropriate under the Strata Schemes Management Act 2015 (NSW) (SSMA) in respect of the works to be installed including by-laws in relation to its future cost of repair and maintenance and the Applicant's (and his successor's-in-title) use, including exclusive use, of that area. The Tribunal orders, otherwise: 7. The application to appoint a strata managing agent pursuant to s 237 of the SSMA is dismissed. Catchwords: LAND LAW Strata Schemes – sections 106, 232 and 237 of the Strata Schemes Management Act 2015 (NSW) – failure to maintain and repair property – water penetration – lengthy duration – unsuccessful previous solutions - appointment of compulsory strata manager – specific purpose - costs Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Strata Schemes Management Act 2015 (NSW) Cases Cited: Hoare v The Owners – Strata Plan 73905 [2018] NSWCATCD 45 Bischoff v Sahade [2015] NSWCATAP 135 Rosenthal v. The Owners – Strata Plan 20211 [2017] NSWCATCD 80 Rosenthal v. The Owners – Strata Plan 20211 [2021] NSWCATCD (unreported, 15 February 2021) Category: Principal judgment Parties: Peta Athens (Applicant)