The Owners - Strata Plan No. 36613 v Doherty; Doherty v The Owners - Strata Plan No. 36613 [2021] NSWCATAP 285

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: The Owners - Strata Plan No. 36613 v Doherty; Doherty v The Owners - Strata Plan No. 36613 [2021] NSWCATAP 285 Hearing dates: 7 September 2020, 3 December 2020 Date of orders: 22 September 2021 Decision date: 22 September 2021 Jurisdiction: Appeal Panel Before: K Rosser, Principal Member G K Burton SC, Senior Member Decision: 1. In AP 20/17302, leave to appeal is refused and the appeal is dismissed. 2. In AP 20/21354: (a) To the extent necessary, time to file the appeal is extended to and including 12 May 2020 and leave to appeal is granted; and (b) The appeal is allowed. 3. The Owners – Strata Plan No.36613 by its agents, employees and contractors is to undertake all works required to place the balustrade on and about the perimeter of the courtyard of lot 17 in SP 36613 into a state of repair that is compliant with the currently applicable provisions of the National Construction Code, applicable Australian Standards and all other applicable laws and codes, with such works to be completed within four months after the date of these orders or such later date as the parties agree or as a Member of the Tribunal determines, on application by a party supported by appropriate evidence and submissions. 4. The following orders are made in substitution for orders 1 to 4 made in SC 19/1250 on 18 March 2020: (a) Deborah Doherty and Rajiv (Rahu) Parrab are to obtain updated quotations in respect of replacement of the fence and the landscaping and are to provide those quotations to the Strata Committee no later than 28 days after the date of completion of the balustrade replacement works specified in order 3 above. (b) The Strata Committee is to consider and select which quotations will be accepted in relation to the replacement fence and the replacement of the landscaping no later than 42 days after the date of completion of the balustrade replacement works specified in order 3 above. (c) The contractors are to be engaged and the fencing and landscaping works are to commence no later than seventy days after the date of completion of the balustrade replacement works specified in order 3 above. (d) The fencing and landscaping works are to be completed no later than 3 months after the date of completion of the balustrade replacement works specified in order 3 above. 5. Any application for costs, together with evidence and submissions in support of the application, is to be filed and served within 14 days after the date of these orders. 6. Any evidence and submissions in response to an application for costs is to be filed and served within 28 days after the date of these orders. Catchwords: Strata and community schemes – duty of owners corporation to maintain and repair common property – reinstatement duty in respect of damage to or removal of lot property in course of access to fulfil duty in respect of common property – costs protection for successful lot owners under SSMA ss 90, 92, 104 Legislation Cited: Act (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 (NSW) Home Building Act 1989 (NSW) Interpretation Act 1987 (NSW). Local Government Act 1919 (NSW) Ordinance 70 Strata Schemes Management Act 1996 (NSW) Strata Schemes Management Act 2015 (NSW) Strata Titles Act 1973 (NSW) Cases Cited: Athens v Randwick CC (2005) 64 NSWLR 58 Carli v Owners SP 56120 [2018] NSWCATCD 55 at [101]-[103] Collins v Urban [2014] NSWCATAP 17 Coulton v Holcombe (1986) 162 CLR 1 Glenquarry Park Investments PL v Hegyesi [2019] NSWSC 425 Hyder Consulting (Australia) PL v Wilh Wilhemsen Agency PL [2001] NSWCA 313 McElwaine v Owners SP 75975 [2017] NSWCA 239 Northcott v Owners SP 31143 [2020] NSWLEC 62 Owners SP 345042 v Seiwa Australia PL [2007] NSWCA 272 Owners SP 4983 v Canny [2018] NSWCA 275 Owners SP 50276 v Thoo [2013] NSWCA 270 Owners SP21702 v Krimbogiannis [2014] NSWCA 411 Pollak v Owners SP 2834 [2020] NSWSC 784 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Ridis v Owners SP 10308 (2005) 63 NSWLR 249, [2005] NSWCA 246 Riley v Owners SP 73817 [2012] NSWCA 410 Seiwa PL v Owners SP 345042 [2006] NSWSC 1157 Stolfa v Hempton [2010] NSWCA 218 Trevallyn-Jones v Owners SP 50358 [2009] NSWSC 694 Vickery v Owners SP 80412 [2020] NSWCA 284 Yates Property Corp PL v Boland (1998) 89 FCR 78 Texts Cited: Macquarie Dictionary (2nd rev) Category: Principal judgment Parties: The Owners - Strata Plan No. 36613 (OC) (appellant in AP 20/17302, respondent in AP 20/21354))