The Owners – Strata Plan No 74232 v Tezel [2023] NSWCA 35

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: The Owners – Strata Plan No 74232 v Tezel [2023] NSWCA 35 Hearing dates: 5 September 2022 Date of orders: 6 March 2023 Decision date: 06 March 2023 Before: Gleeson JA at [1]; Mitchelmore JA at [2]; Kirk JA at [58]. Decision: (1) Leave to appeal granted. (2) The applicant file a notice of appeal in accordance with the draft notice of appeal within 7 days. (3) Appeal allowed. (4) Set aside the orders of the Appeal Panel of the Civil and Administrative Tribunal of New South Wales in proceedings 2021/347082 and in lieu thereof, order that the appeal is dismissed. (5) Leave to cross-appeal is refused with costs. (6) The respondent pay the appellant's costs of the appeal and of the proceedings before the Appeal Panel. Catchwords: LAND LAW – strata title – owners corporation –maintenance and repair of common property – breach of obligation to maintain and repair common property – where unit affected by water leakage – where respondent lot owner unsuccessfully attempted to rent out unit in 2016 – action for recovery of loss of rent from owners corporation pursuant to s 106(5) of the Strata Schemes Management Act 2015 (NSW) – whether action was time barred by s 106(6) of the Act STATUTORY INTERPRETATION – limitation of action – where claim made on 6 November 2020 for loss of rent pursuant to s 106(5) of Strata Schemes Management Act 2015 (NSW) – whether claim was time barred by s 106(6) of that Act – whether respondent first became aware of the loss in 2016 or on 6 November 2018 – whether "the loss" in s 106(6) refers to the kind or type of loss that the lot owner is entitled to recover under s 106(5) or the particular loss that she is seeking to recover APPEALS – cross-appeal under s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) – where appeal with leave limited to a question of law – whether grounds of cross-appeal raised questions of law Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 80(2)(b), 83(1) Limitation Act 1969 (NSW), s 14(1)(b) Strata Schemes Development Act 2015 (NSW), s 4(1) Strata Schemes Management Act 1996 (NSW), s 62(1) Strata Schemes Management Act 2015 (NSW), ss 3, 4(1), 8, 9(1)-(3), 106, 122(6), 132(1), 232 Trade Practices Act 1974 (Cth), s 82 Cases Cited: Clutha Ltd v Millar [2002] NSWSC 362 Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 Hawkins v Clayton (1986) 5 NSWLR 109 Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd [2022] NSWCA 150 Morsingh v Health Care Complaints Commission [2022] NSWCA 106 Owners Strata Plan 50276 v Thoo [2013] NSWCA 270 R v A2 (2019) 269 CLR 507; [2019] HCA 35 Ridis v Proprietors of Strata Plan 10308 (2005) 63 NSWLR 449; [2005] NSWCA 246 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 Scarcella v Lettice (2000) 51 NSWLR 302; [2000] NSWCA 289 Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 Tezel v The Owners – Strata Plan No 74232 [2021] NSWCATCD 132 Tezel v The Owners – Strata Plan No 74232 [2022] NSWCATAP 149 The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 The Owners – Strata Plan No 80412 v Vickery [2021] NSWCATAP 98 Vickery v The Owners Strata Plan No. 80412 (2020) 103 NSWLR 352; [2020] NSWCA 284 Western Australia v Wardley Australia Ltd (1991) 30 FCR 245; [1991] FCA 314 White v Betalli (2007) 71 NSWLR 381; [2007] NSWCA 243 Category: Principal judgment Parties: The Owners – Strata Plan No 74232 (Applicant/Cross-Respondent) Feride Tezel (Respondent/Cross-Applicant) Representation: Counsel: Mr M Pesman SC and Mr T Davie (Applicant/Cross-Respondent)) Mr J Emmett SC and Ms E Jardine (Respondent/Cross-Applicant)