Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hua Nan Trading Pty Ltd v The Owners – Strata Plan No 32396 [2022] NSWCATCD 213 Hearing dates: 9 November 2022 Date of orders: 11 November 2022 Decision date: 11 November 2022 Jurisdiction: Consumer and Commercial Division Before: D Goldstein, Senior Member Decision: 1. The application is dismissed. 2. In the event that a party wishes to bring a costs application, such application must be lodged in the Tribunal and served on/given to the costs respondent within 14 days of the date of the orders in these proceedings either attaching or referring to the documents relied upon in support of the application. 3. The costs respondent will have 14 days after the date it receives the application to lodge in the Tribunal and serve on/give to the costs applicant its submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon. 4. The parties must state in their submissions whether or not they consent to the costs application being determined on the basis of the parties written submissions and attached documents, if any, without the need for a hearing. 5. Subject to the parties' submissions, the Tribunal will determine any costs application made on the basis of the papers lodged in the Tribunal. Catchwords: LAND LAW – Strata titles – Section 106(6) of the Strata Schemes Management Act 2015 – Applicability of s41 of the Civil and Administrative Tribunal Act 2013 to s106(6) Legislation Cited: Civil and Administrative Tribunal Act 2013 Strata Schemes Management Act 2015 Home Building Act 1989 Residential (Land Lease) Communities Act 2013 Cases Cited: Boutenko v The Owners-Strata Plan No 77480 (unreported) Maher v The Pines Resort Management Pty Ltd T/as Gateway Lifestyle The Pines; Marsh v The Pines Resort Management Pty Ltd T/as Gateway Lifestyle The Pines [2018] NSWCATCD 35 S & G Homes Pty Ltd t/as Pavilion Homes v Owen [2015] NSWCATAP 190 Tezel v The Owners - Strata Plan No 74232 [2022] NSWCATAP 149 Category: Principal judgment Parties: Hua Nan Trading Pty Ltd: applicant The Owners – Strata Plan No 32396: respondent Representation: Counsel: Mr N. Simone for the respondent Solicitors: Meridian Lawyers for the respondent File Number(s): SC 22/19375 Publication restriction: Nil REASONS FOR DECISION 1. These proceedings were filed on 4 April 2022. Payment of the filing fee was effected on 6 May 2022. 2. The applicant is a lot owner in strata scheme 32396. It claims the sum of $64,726.90 from the respondent because it claims that the respondent failed to maintain and repair common property. It states that as a result of the respondent's alleged failure, it sustained loss and damage due to severely inclement weather on 7, 8 and 9 February 2020. 3. The respondent states that the applicant's claim must fail because, among other things, it has been brought out of time. Sections 106(1) and (2) of the Strata Schemes Management Act 2015 ('SSMA') oblige the respondent to maintain and repair common property. Those sections state: '(1) An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation. (2) An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.' 1. Section 106(5) of the SSMA allows a lot owner to recover damages from an owners corporation if it breaches the above provisions. The sub section states: 'An owner of a lot in a strata scheme may recover from the owners corporation, as damages for breach of statutory duty, any reasonably foreseeable loss suffered by the owner as a result of a contravention of this section by the owners corporation.' 1. Section 106(6) of the SSMA places a time limit on bringing recovery proceedings under s106(5) of the SSMA. It states: 'An owner may not bring an action under this section for breach of a statutory duty more than 2 years after the owner first becomes aware of the loss.' 1. On the basis of the applicant's evidence in these proceedings I find that it is clear that the applicant became aware of the loss claimed in these proceedings on 10 February 2020, refer page 34 of exhibit A. In addition at Page 19 of exhibit A which is in the nature of evidence, the applicant states at [7] and [8]: 'On February 7, 8 and 9, 2020 it rained very heavily for three consecutive days. The flood rushed into my unit from the broken drain down pipe and flooded my unit. 82 cartons of goods were all wet outside and inside. Also the ground floor carpet all got very wet. Evidence page 31 8th February 2020, I emailed Lola/Strata lifestyle to complain that they did not fix the broken drain pipe for 4 months. And tell Lola it is an emergency. My unit has flooding. The stock in the warehouse has been seriously damaged. Evidence – page 31–32' 1. The applicant also states that on 2 March 2020 its former solicitor wrote to the respondent's strata manager to claim compensation. The relevant email is not in evidence. 2. To be within the two year period referred to in s106(6) of the SSMA, proceedings should have been filed by 9 February 2022, at the earliest, or 2 March 2022 at the latest if I were to conclude that the applicant became fully aware of its loss when on 2 March 2020 it's solicitor wrote to the respondent's representative claiming compensation. The proceedings were filed on 4 April 2022 3. I find that these proceedings were filed more than 2 years after the applicant became aware of the loss claimed in these proceedings. The applicant's claim is on that basis out of time and may not be maintained. 4. Despite the applicant's claim having been filed out of time, the question arises whether the Tribunal may extend the time for making the claim pursuant to s41 of the Civil and Administrative Tribunal Act 2013 ('NCAT Act'). That section states: '(1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired.' 1. The scope and application of s41 has been considered in a number of decisions of the Appeal Panel of the Tribunal. In S & G Homes Pty Ltd t/as Pavilion Homes v Owen [2015] NSWCATAP 190 an Appeal Panel considered a situation where parties had signed consent orders for a builder to pay money to a home owner in circumstances where the Tribunal's jurisdiction was in issue because it was said that the Tribunal application was lodged out of time and that there were other irregularities. The Appeal Panel stated at [53]: 'The power in s 41 of the NCAT Act to extend time is limited to legislation "in respect of which the Tribunal has jurisdiction".' 1. There can be no doubt that the Tribunal has jurisdiction in connection with the SSMA. Refer Part 12 of the SSMA. 2. In S & G Homes Pty Ltd t/as Pavilion Homes v Owen the Appeal Panel was concerned with the Home Building Act 1989 in which the conferral of jurisdiction was expressed in language which stated that the Tribunal did not have jurisdiction in respect of certain building claims which were lodged outside specified periods of time. The Appeal Panel found that when dealing with a provision which conferred jurisdiction if the claim was brought within a specified period of time, section 41 of the NCAT Act did not operate to extend the time specified. The reason was stated at [53]: 'because the Tribunal does not have jurisdiction to entertain a home building claim which has been lodged out of time, s 41 should not be interpreted so as to give the Tribunal that jurisdiction. The conferral of jurisdiction needs to be express. It follows that the Tribunal does not have power to extend the time for making an application because to do so would purport to give the Tribunal jurisdiction it does not otherwise have.' 1. In Maher v The Pines Resort Management Pty Ltd T/as Gateway Lifestyle The Pines; Marsh v The Pines Resort Management Pty Ltd T/as Gateway Lifestyle The Pines [2018] NSWCATCD 35 The Tribunal dealt with, among other things, the Residential (Land Lease) Communities Act 2013 and an application under s71 of that legislation which stated in sub section (3): 'The application must be made within 14 days after the date on which the mediation failed.' 1. At [28] and [29] of the decision the Tribunal stated: 'As the Tribunal is satisfied that the representative proceedings have been filed within the limitation period in s 71 (3) of the RC Act 2013, it is unnecessary make findings whether the limitation period is of a type that can be extended under s 41 of the Civil and Administrative Tribunal Act 2015 and whether the limitation period should be extended applying the principles set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. However, for the sake of completeness, the Tribunal has considered this issue. As the time period in s 71 (3) of the RC Act 2013 is not expressed in a manner that clearly states the Tribunal has no jurisdiction if proceedings are not commenced within a certain period of time (such as s 48K of the Home Building Act 1989-see S & G Homes Pty Ltd t/as Pavilion Homes v Owen [2015] NSWCATAP 190 at [53]), the Tribunal is satisfied that s 41 of the Civil and Administrative Tribunal Act 2013 allows it to extend the limitation period under s 71 (3) of the RC Act 2013.' 1. The above cases make it clear that if a provision which confers jurisdiction on the Tribunal is expressed in terms that the Tribunal either has jurisdiction if the proceedings are commenced in a specified time, or that the Tribunal will not have jurisdiction if the proceedings are not brought within a specified time, these are jurisdictional provisions and s41 of the NCAT Act does not apply to extend the stated time limits. 2. In S & G Homes Pty Ltd t/as Pavilion Homes v Owen the relevant provision of the Home Building Act stated that the Tribunal did not have jurisdiction in respect of certain building claims which were lodged outside of specified periods of time. Section 41 was held to have no application, because if it was applied it would confer on the Tribunal jurisdiction which it did not have. In Maher v The Pines Resort Management Pty Ltd T/as Gateway Lifestyle The Pines; Marsh v The Pines Resort Management Pty Ltd T/as Gateway Lifestyle The Pines the relevant provision extracted above was not expressed as conferring jurisdiction and as a result the Tribunal stated, albeit obiter dicta, that s41 of the NCAT Act would apply. 3. Section 106(5) of the SSMA confers a right on an owner of a strata lot to bring the type of action referred to against an owners' corporation. The sub section does not expressly confer jurisdiction on the Tribunal. The Tribunal's jurisdiction is addressed elsewhere, namely s232 of the SSMA. Section 106(6) of the SSMA is in a different category to the legislative provision referred to in the cases cited above. It states a legislative requirement that proceedings may not be brought more than 2 years after a lot owner has become aware of a loss arising from an owner's corporations contravention of s106. I find that s41 of the NCAT Act will not apply to extend the 2 year period referred to in s106(6) as that would confer on the Tribunal jurisdiction to entertain a claim that the legislation makes clear it does not possess. To put it another way, s41 only applies to extend the period of time for the doing of anything under legislation. Section 106(6) does not state a time for filing an action or doing anything : it expressly prevents bringing an application outside the 2 year time limit. In my view the power in s41 to extend does not apply to extend the time limit because that is not a period of time within which, something must be done. This view is compatible with the view expressed in Tezel v The Owners - Strata Plan No 74232 [2022] NSWCATAP 149 where an Appeal Panel stated at [43] and [45]: 'The foregoing analysis recognises that the limitation in SSMA s 106(6) is a time limitation on the bringing of a claim for relief that is crystallised.' 'The foregoing interpretation of SSMA s 106(6) recognises, contrary to the observation of the Tribunal in the primary reasons set out earlier with which we respectfully disagree, that s 106(6) has important and distinctive work to do. It prevents (like all time limit provisions) a claimant sitting on its rights beyond a limited period. The consequence of sitting on rights is that a claim based on earlier breach of the strict obligation causing loss is out of time, a consequence which has limited this appellant's rights of claim.' 1. In comparison, s71(3) of the Residential (Land Lease) Communities Act addressed the doing of something, namely the filing of an application and it is for that reason s41 is applicable to it. 2. A similar position was reached in Boutenko v The Owners-Strata Plan No 77480 (unreported) where Senior Member Sarginson stated at [109]: 'The time limitation period in s 106 (6) of the SSM Act is a jurisdictional time limit, equivalent to the time limits to take proceedings in the Tribunal for breach of statutory warranties under ss 3B; 18B; 18E and 48K of the Home Building Act 1989 (NSW). For the same reasons as were expressed in S & G Homes Pty Ltd t/as Pavilion Homes v Owen [2015] NSWCATAP 190 at [50]-[53], the Tribunal cannot invoke s 41 of the NCAT Act to extend time under s 106 (6) of the SSM Act, as it is not a limitation defence but rather a jurisdictional fact that ether exists or doesn't exist.' 1. I find that for the reasons provided, the Tribunal does not possess the jurisdiction to deal with the applicant's application and its claim for $64,726.90 because the application was filed outside the two year period referred to in s106(6) of the SSMA. I further find that s41 of the NCAT Act does not apply to extend the time referred to in s106(6) of the SSMA. Costs 1. In the event that a party wishes to bring a costs application, such application must be lodged in the Tribunal and served on/given to the costs respondent within 14 days of the date of the orders in these proceedings either attaching or referring to the documents relied upon in support of the application. 2. The costs respondent will have 14 days after the date it receives the application to lodge in the Tribunal and serve on/give to the costs applicant its submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon. 3. The parties must state in their submissions whether or not they consent to the costs application being determined on the basis of the parties written submissions and attached documents, if any, without the need for a hearing. 4. Subject to the parties' submissions, the Tribunal will determine any costs application made on the basis of the papers lodged in the Tribunal. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 30 August 2023 - Formatting amendments. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 August 2023