Selkirk v The Owners - Strata Plan No 2661 [No 2] [2024] NSWCATAP 44

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Selkirk v The Owners - Strata Plan No 2661 [No 2] [2024] NSWCATAP 44 Hearing dates: On the papers Date of orders: 27 March 2024 Decision date: 27 March 2024 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President G Burton SC, Senior Member Decision: (1) Order that a hearing on costs is dispensed with. (2) Order that the first respondent (OC) pay the appellant's costs of the appeal on the ordinary basis as agreed or assessed except for the costs of the flooring issue not pressed on appeal. (3) Note that, the appellant having been found to have been successful in the proceedings within the meaning of s 104 of the Strata Schemes Management Act 2015 (NSW), pursuant to the operation of s 104 of that Act costs and expenses of the OC in the proceedings, except for those the subject of the costs order against the appellant in order 5 below are to be paid by the OC from contributions levied in relation to lots in SP 2661 except for the appellant's lot with such contributions being proportional to the unit entitlements of lots except for the appellant's lot. (4) Order that amounts ordered to be paid in respect of costs in favour of the appellant are to be paid by the OC from contributions levied in relation to lots in SP 2661 except for the appellant's lot with such contributions being proportional to the unit entitlements of lots except for the appellant's lot. (5) Order that the appellant pay the OC's and the second respondent's costs of the appeal in respect of the flooring issue not pressed on appeal on the ordinary basis as agreed or assessed. (6) Vacate the Tribunal's costs order of 27 October 2023 and in substitution reserve costs of the original primary hearing to the Tribunal hearing the remitted matters, with such costs to be determined taking into account, first the appellant's success in overturning the original primary outcome on the remitted matters, secondly the outcome in the remitter proceedings and thirdly the OC's success in the original primary proceedings on the matters not appealed and the respondents' success in the original primary proceedings on the flooring issue not pressed on appeal. Catchwords: REAL PROPERTY – STRATA MANAGEMENT – strict duty of repair – onus of proof on scope and consequences of breach – causation and mitigation – measure and quantification of loss – Strata Schemes Management Act 2015 (NSW) ss 106, 122, 124, 232. COSTS – costs orders on severable issues - application of s 104 Strata Schemes Management Act 2015 (NSW) – quarantining of costs orders in favour of appellant – appropriate orders with success on primary matter appealed and remitted but not on a severable matter appealed. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Strata Schemes Management Act 2015 (NSW) Cases Cited: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 Bajic v Paraskevopoulos [2018] NSWCATAP 205 Barwick v Shetab [2017] NSWCATAP 127 Bellgrove v Eldridge (1954) 90 CLR 613 Bonita v Shen [2016] NSWCATAP 159 Colourrender (Australia) PL v Sarkis [2023] NSWCATAP 250 El-Wasfi v NSW; Kassas v NSW [No 2] [2018] NSWCA 27 Hanave PL v Wine Nomad PL [No 2] [2022] NSWCATAP 361 Hanave PL v Wine Nomad PL [2023] NSWSC 265 Hazeldene's Chicken Farm PL v Victorian Workcover Authority (No 2) (2005) 13 VR 435, [2005] VSCA 298 Johnson t/as One Tree Constructions v Lukeman [2017] NSWCATAP 45 Latoudis v Casey (1990) 170 CLR 534 Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Oppidan Homes PL v Yang [2017] NSWCATAP 67 Oshlack v Richmond River Council (1998) 193 CLR 72 Owners SP 63341 v Malachite Holdings PL [2018] NSWCATAP 256 Owners SP 74698 v Jacinta Investments PL [2021] NSWCATAP 387 Thompson v Chapman [2016] NSWCATAP 6 Category: Costs Parties: S Selkirk (appellant) Owners - Strata Plan No 2661 (Respondent) Representation: Counsel: A Rizk, (Appellant) C Purdy, (Respondent) Solicitors: Sachs Gerace Lawyers (Appellant) Mills Oakley Lawyers (Respondent) File Number(s): 2023/00289207 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 15 August 2023 Before: M Tyson, Senior Member File Number(s): SC 22/32390