The Owners – Strata Plan No 21563 v Rutherford [2023] NSWCATAP 326

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: The Owners – Strata Plan No 21563 v Rutherford [2023] NSWCATAP 326 Hearing dates: 22 August 2023 Date of orders: 12 December 2023 Decision date: 12 December 2023 Jurisdiction: Appeal Panel Before: D Robertson, Senior Member G Sarginson, Senior Member Decision: 1. To the extent necessary grant leave to appeal; 2. Allow the appeal; 3. Vary order (1) made on 30 May 2023 in proceedings SC 22/47837 by substituting the sum of $7,019.64 for the sum of $10,169.29; 4. Set aside the decision on costs made on 12 July 2023 in proceedings SC 22/47837; 5. Remit to the Consumer and Commercial Division of the Tribunal all questions of costs of proceedings SC 22/47837 for consideration in light of this decision. 6. Either party may, within 14 days of the date of publication of these reasons, file and serve submissions, not exceeding five pages, and any evidence relied upon in support, seeking an order in relation to the costs of the appeal. 7. If either party files submissions pursuant to order (6), the other party may file and serve submissions not exceeding five pages in response to any such submissions, and any evidence relied upon in support, within a further 14 days. 8. Any submissions filed in accordance with orders (6) and (7) should address the issue whether the question of costs can be determined on the basis of the written submissions and without a further hearing. 9. If neither party files submissions in accordance with order (6) there will be no order in relation to the costs of the appeal. Catchwords: LAND LAW – Strata title – Duty to maintain and repair common property – Liability of owners corporation for foreseeable losses sustained by reason of a failure to maintain and repair common property - Strata Schemes Management Regulation 2016 clause 60 – Parties to pay their own costs associated with a mediation – Whether damages for failure to repair and maintain common property may include legal costs associated with a mediation seeking to resolve a dispute concerning the maintenance of common property Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Interpretation Act 1987 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Strata Schemes Management Act 1996 (NSW) Strata Schemes Management Act 2015 (NSW) s 106 Strata Schemes Management Regulation 2016 (NSW) reg 60 Cases Cited: Abigroup Ltd v Sandtara Pty Ltd [2002] NSWCA 45 Anderson v Bowles (1951) 84 CLR 310; [1951] HCA 61 Avenhouse v Hornsby SC (1998) 44 NSWLR 1 Blue Circle Industries Plc v Ministry of Defence [1999] Ch 289; [1998] EWCA Civ 945 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 138 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 Fifteenth Eestin Nominees Pty Ltd v Rosenberg (No 2) (2009) 24 VR 155; [2009] VSCA 178 Fligg v The Owners Strata Plan 53457 [2012] NSWSC 230 Gray v Sirtex Medical Limited (2011) 193 FCR 1; [2011] FCAFC 40 McIntyre v Perkes (1988) NSWLR 417 Mead & Anor v Allianz Australia Insurance Ltd [2007] NSWSC 500 Milisits v South Australia [2017] SASC 186 Newcastle City Council v Wieland (2009) 74 NSWLR 173; [2009] NSWCA 113 Nicita v Owners of Strata Plan 64837 [2010] NSWSC 68 Owners - Strata Plan No 61162 v Lipman [2014] NSWSC 622 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Provident Capital Pty Ltd v Papa (No 2) [2013] NSWCA 156 Queanbeyan Leagues Club Ltd v Poldune Pty Ltd and Ors [2000] NSWSC 1100 Rock v Henderson [2021] NSWCA 155 Ross v Caunters [1980] 1 Ch 297 Russell v The Trustees of Roman Catholic Church for the Archdiocese of Sydney (2008) 72 NSWLR 559; [2008] NSWCA 217 State of NSW v Cuthbertson (2018) 99 NSWLR 120; [2018] NSWCA 320 Talacko v Talacko [2009] VSC 446 Texts Cited: None cited Category: Principal judgment Parties: The Owners – Strata Plan No 21563 (Appellant) Katherine Yvonne Rutherford (Respondent) Representation: Counsel: M Forgacs (Respondent)