The Owners – Strata Plan No 77559 v Touma; Touma v The Owners – Strata Plan No 77559 [2022] NSWCATAP 186

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: The Owners – Strata Plan No 77559 v Touma; Touma v The Owners – Strata Plan No 77559 [2022] NSWCATAP 186 Hearing dates: 15 March 2021 (final submissions received 15 October 2021) Date of orders: 7 June 2022 Decision date: 07 June 2022 Jurisdiction: Appeal Panel Before: T Simon, Principal Member S Goodman, Senior Member Decision: (1) In relation to the Owners Corporation's appeal: (i) The appeal is allowed in part (ii) Leave to appeal is refused (2) In relation to the Lot Owner's appeal: (i) The time for the making of the appeal is extended until 30 November 2020 (ii) The appeal is allowed in part (iii) Leave to appeal is refused (3) Orders 1 - 7 of the orders made on 15 June 2020 [amended 3 December 2020] are set aside. (4) The proceedings are remitted to the Tribunal as originally constituted and in accordance with these reasons, to determine on the evidence that was before the Tribunal: (i) Whether the Lot Owner is entitled to damages pursuant to s 106(5) of the Strata Schemes Management Act 2015. (ii) What orders should be made, if any, in relation to damage to common property and consequential damage to lot property. (5) If either party seeks a costs order in relation to the appeal, the following directions apply: (a) The applicant for costs (costs applicant) must file and serve any application within 7 days after these orders. (b) The respondent to the cost's application must file and serve evidence and submissions in reply 14 days from the date of these orders. (c) The costs applicant must file and serve any submissions in response within 21 days from the date of these orders. (d) Submissions must include submissions concerning whether an order should be made under s 50(2) of the Civil and Administrative Tribunal Act, 2013 dispensing with a hearing. (6) The stay made by the Appeal Panel on 31 July 2020, varied on 21 August 2020 and further varied on 9 September 2020 is lifted. Catchwords: STRATA TITLE – awarding damages to a lot owner for breach of the statutory duty in s 106(1) of the Strata Schemes Management Act 2015 – duty to properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation - - whether the Tribunal had power under s232 of the SSMA to order the owners corporation to rectify damage to lot owner's property - whether breach of s106(1) established - whether works to common property and repair to lot property can be order in the absence of an occupation certificate under the Environmental Planning and Assessment Act 1979 (NSW). APPEAL – question of law – adequacy of reasons Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Amendment Act Liquor Act 2007 Local Government Act 1919 Strata Schemes Management Act 2015 Strata Schemes Management Act 1996 The Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 Cases Cited: Fitzgerald v FJ Leonhardt Pty Ltd (1997) 189 CLR 215 Gnych v Polish Club Ltd [2015] HCA 23; 255 CLR 414 Karl Suleman Enterprises Pty Ltd (in liq) v Babanour [2004] NSWCA 214 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Mastellone v The Owners-Strata Plan No 87110 [2021] NSWCATAP 188 New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 Reading Properties Ply Ltd v Auburn Council (2007) 158 LGERA 116 Shih v The Owners - Strata Plan No 87879 [2019] NSWCATAP 263 Strathfield Municipal Council v C & C Investment Trading Pty Ltd (No 3) [2018] NSWLEC 69 The Owners - Strata Plan No 37762 v Pham [2006] NSWSC 1287 The Owners - Strata Plan No 74835 v Pullicin; The Owners - Strata Plan No 80412 v Vickery [2020] NSWCATAP 5 The Owners Strata Plan No 30621 v Shum [2018] NSWCATAP 15 The Owners – Strata Plan No 80412 v Vickery [2021] NSWCATAP 98 Vickery v The Owners - Strata Plan No 80412 [2020] NSWCA 284 Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd [1978] HCA 42; 139 CLR 410 Category: Principal judgment Parties: 2020/00370912 (previously AP 20/30170) The Owners – Strata Plan No 77559 (Appellant) Mounir Touma (Respondent)