Noor v The Owners - Strata Plan No 72939 [2023] NSWCATAP 236

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Noor v The Owners - Strata Plan No 72939 [2023] NSWCATAP 236 Hearing dates: 31 July 2023 Date of orders: 24 August 2023 Decision date: 24 August 2023 Jurisdiction: Appeal Panel Before: G Blake AM SC, Senior Member J S Currie, Senior Member Decision: 1. The application for miscellaneous matters of the appellant filed on 6 July 2023 so far as it seeks to add ground of appeal 13 is dismissed. 2. The application for miscellaneous matters of the appellant filed on 19 July 2023 is dismissed. 3. To the extent necessary leave to appeal is refused. 4. The appeal is otherwise allowed. 5. The order dismissing application SC 21/38944 made on 22 May 2023 is set aside and in its place the following order is made: "Proceedings SC 21/38944 are dismissed so far as the claim of the applicant for damages for loss of rent." 6. The issue of whether the appellant is entitled to orders 2 and 3 in her undated statement filed on or about 3 December 2021 in proceedings SC21/38944 is remitted to the Consumer and Commercial Division of the Tribunal as originally constituted for reconsideration on the basis of the agreement of the parties or in the absence of agreement on the basis of the evidence of the parties and such further evidence as the Tribunal may allow. 7. The issue of whether the appellant is entitled to an order for damages except in respect of her claim for loss of rent is remitted to the Consumer and Commercial Division of the Tribunal as originally constituted for reconsideration on the basis of the evidence of the parties. 8. There is no order as to the costs of the appeal. 9. If any party wishes to make an application to vary order (6) above, the applicant (the costs applicant) must file and serve a costs application, including submissions limited to three pages and any evidence in support, on or before 14 days from the date of this decision. 10. The respondent to the costs application is to file and serve any submissions limited to three pages and any evidence in reply on or before 28 days from the date of this decision. 11. The costs applicant is to file any submissions limited to two pages in reply on or before 35 days from the date of this decision. 12. The parties are to indicate in their submissions whether they consent to an order dispensing with an oral hearing of the costs application, and if they do not consent, submissions of no more than one page as to why an oral hearing should be conducted rather than the application being determined on the papers. Catchwords: APPEALS — Appeal on question of law – Scope of question of law APPEALS — Leave to appeal — Principles governing LAND LAW — Strata title — Owners corporation - maintenance and repair of common property - breach of obligation to maintain and repair common property – where lot affected by water leakage –action for work order and recovery of loss by lot owner 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 Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 60, 80, 81, Sch 4, cl 12 Civil and Administrative Tribunal Rules 2014 (NSW), rr 25, 38A Strata Schemes Management Act 2015 (NSW), s 106 Cases Cited: Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425 Jain v Dr N Kalokerinos Pty Ltd [2023] NSWCATAP 141 The Owners – Strata Plan No 74232 v Tezel [2023] NSWCA 35 Thomas and Naaz Pty Ltd (ACN 101 491 703) v Chief Commissioner of State Revenue [2022] NSWCATAP 220 Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 Yuen v Thom [2016] NSWCATAP 243 Texts Cited: None cited Category: Principal judgment Parties: Haidi Noor (Appellant) The Owners – Strata Plan No 72939 (Respondent) Representation: A Noor (Appellant) Grace Lawyers (Respondent) File Number(s): 2023/00179215 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 22 May 2023 Before: C Paull, Senior Member File Number(s): SC 21/38944