Hua Nan Trading Pty Ltd v The Owners – Strata Plan No 32396 [2023] NSWCATAP 66

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hua Nan Trading Pty Ltd v The Owners – Strata Plan No 32396 [2023] NSWCATAP 66 Hearing dates: 30 January 2022 Date of orders: 06 March 2023 Decision date: 06 March 2023 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member D Fairlie, Senior Member Decision: 1. The appeal is upheld. 2. The decisions of the Tribunal dated 11 November 2022 and 15 December 2022 are set aside. 3. The proceedings are remitted to the Tribunal as originally constituted, if practically possible, to be determined according to law. 4. A hearing of the costs issues is dispensed with. 5. The respondent is to pay the appellant the sum of $1,002 for costs of the appeal. 6. The cost of the first instance hearing should be determined by the Tribunal at first instance. 7. The costs of the first instance proceedings, excluding the hearing costs, should be costs in the cause of the remitted proceedings. Catchwords: LAND LAW — strata title — common property — maintenance and repair of common property – action for damages by lot owner – proceedings commenced more than two years after the owner became aware of loss – extension of time – the temporal element in s 106(6) of the Strata Schemes Management Act 2015 not a jurisdictional fact – time to extend that period of time pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 ADMINISTRATIVE LAW — particular administrative bodies — NSW Civil and Administrative Tribunal – jurisdiction and power to extend time pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 – Tribunal may extend time despite any provision to the contrary under legislation conferring general jurisdiction - Tribunal may extend time even if the relevant period of time has expired – s 41 beneficial legislation – no warrant to impose limitations on the power expressed in s 41 Legislation Cited: Civil and Administrative Tribunal Act 2013, ss 41, 60 Corporations Law, ss 459G(2), 1322(4)(d) Home Building Act 1989 (NSW), ss 48K(3), (4), (6) and (7) Strata Schemes Management Act 2015 (NSW), ss 106(1), 106(2), 106(5), 106(6), 227, 232 Cases Cited: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 BCS v NSW Civil and Administrative Tribunal [2015] NSWSC 126 Boutenko v The Owners-Strata Plan No 77480 [2022] NSWCATCD 166 David Grant & Co Pty Ltd v Westpac Banking Corp (1995) 184 CLR 265; [1995] HCA 43 Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 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 Minister For Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; [2004] HCA 20 Minister for Immigration and Mulitcultural Affairs v Wang [2003] 215 CLR 518; [2003] HCA 11 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 S & G Homes Pty Ltd t/as Pavilion Homes v Owen [2015] NSWCATAP 190 Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 Tezel v The Owners - Strata Plan No 74232 [2022] NSWCATAP 149 Vickery v The Owners – Strata Plan No 80412 (2020) 103 NSWLR 352; [2020] NSWCA 284 Wilson v Chan & Naylor Parramatta Pty Ltd (2020) 103 NSWLR 140; [2020] NSWCA 213 Yong v Antworks Pty Ltd [2016] NSWCATAP 14 Texts Cited: Halsbury's Laws of Australia, online edition Category: Principal judgment Parties: Hua Nan Trading Pty Ltd (Appellant) The Owners – Strata Plan No 32396 (Respondent) Representation: Counsel: N Simone (Respondent)