Horan v The Owners – Strata Plan No. 68307 [2024] NSWCATAP 118

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Horan v The Owners – Strata Plan No. 68307 [2024] NSWCATAP 118 Hearing dates: 11 April 2024 Date of orders: 24 June 2024 Decision date: 24 June 2024 Jurisdiction: Appeal Panel Before: M Harrowell, Deputy President G Sarginson, Senior Member Decision: (1) Leave to appeal is granted and the appeal is allowed in part. (2) The orders made 21 November 2020 are varied as follows: (a) Order 2(b) is varied to read:

(b) the loss of opportunity to rent the unit for the months of July to December 2020 in the amount of $45,060. (b) Order 2 (c) is varied to read:

(c) electricity charges incurred by the applicant in the amount of $429.26 for the period that the lot was unoccupied from 1 January 2021 to 11 November 2021. (c) Order 3 is varied to read:

3. The respondent is to pay the applicant an amount of $46,616.26 within 28 days from the date of publication of these orders. (3) In respect of costs, the following directions apply: (a) The applicant for costs (costs applicant) is to file and serve any application for costs (costs application), including any application concerning costs of the proceedings at first instance, within 14 days from the date of these orders. Such application is to include any evidence and a short submission (not more than 5 pages). (b) The respondent to any costs application is to file and serve any evidence and submissions in reply (not more than 5 pages) within 28 days from the date of these orders. (c) The costs applicant is to file and serve any submissions in reply (not more than 2 pages) within 35 days from the date of these orders. (d) The parties submissions are to include submissions about whether an order should be made pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) to dispense with a hearing of the costs application. Catchwords: DAMAGES – assessment under s 106(5) of the Strata Schemes Management Act 2015 (NSW) – loss of opportunity – required proof ADMINISTRATIVE LAW – challenge on basis of unreasonableness – when available Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Strata Schemes Management Act 2015 (NSW) Cases Cited: Boyded Industries Pty Ltd v Bluth & Ors [2023] NSWC 915 Browne v Dunn (1893) 6 R 67 Collins v Urban [2017] NSWCATAP 17 Henville v Walker 206 CLR 859; [2001] HCA 52 Mal Owen Consulting Pty Ltd v Ashcroft (2018) 97 NSWLR 1163; [2018] NSWCA 135 Malec v. J.C. Hutton Pty. Ltd (1990) 169 CLR 638; [1990] HCA 20 Minchin v Public Curator of Queensland [1965] ALR 91 Minister for Immigration and Citizenship v Li 249 CLR 332; [2013] HCA 18 Placer (Granny Smith) Pty Ltd v Theiss Contractors Pty Ltd [2003] HCA 10; 77 ALJR 768; 196 ALR 257 Russell v Australian Broadcasting Corporation (No 3) [2023] FCA 1223 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4 Vickery v The Owners – Strata Plan No. 80412 [2020] NSWCA 284 Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12 Texts Cited: Nil Category: Principal judgment Parties: Michael David Horan (Appellant) The Owners – Strata Plan No. 68307 (Respondent) Representation: Counsel: K Koikas (Appellant) M Li (Respondent)