Dart v The Owners - Strata Plan No. 71849 [2024] NSWCATAP 145

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Dart v The Owners - Strata Plan No. 71849 [2024] NSWCATAP 145 Hearing dates: 4 June 2024; Further Written Submissions on 11 June 2024 and 18 June 2024 Date of orders: 26 July 2024 Decision date: 26 July 2024 Jurisdiction: Appeal Panel Before: D Charles, Senior Member M Deane, Senior Member Decision: (1) The proceedings are remitted to the Consumer and Commercial Division of the Tribunal for determination in accordance with the law, with leave given to the parties to adduce such further evidence as the Tribunal thinks fit. (2) No order as to the costs of the appeal (with the intent that the parties are to pay their own costs of the appeal proceedings). (3) If the appellant and/or the respondent contend for a different costs order, the following orders and directions will apply: (i) Any party contending for a different costs order in the appeal proceedings (costs applicant) is to file and serve a short written submission (no more than 5 A4 size pages), within 14 days of the date of these orders, (ii) In that event, Order 2 above will cease to have effect, (iii) The other party (the costs respondent) is to file and serve a short written submission (no more than 5 A4 size pages) in response to the costs applicant's submission, within 28 days of the date of these orders, (iv) The costs applicant may file and serve any written submissions strictly in reply to the costs respondent's submissions (no more than 2 A4 size pages) within 35 days of the date of these orders, (v) Subject to the parties' submissions on this point, the Appeal Panel proposes to determine any application for a different costs order in the appeal proceedings without a hearing, pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 NSW, based on the written submissions provided in accordance with the directions as set out above. Catchwords: APPEAL – Errors on questions of law – no evidence to support finding - failure to consider a party's submissions – not applying legal principle. STRATA - Duty to maintain and repair common property – liability of owners corporation for damage for breach of duty. LIMITATION OF ACTION – whether s 106(6) Strata Schemes Management Act 2015 (NSW) applies where applicant seeks a work order. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Strata Schemes Management Act 2015 (NSW) Cases Cited: Boutenko v The Owners – Strata Plan No 774 780 [2022} NSWCATCD 166 Corcoran v Far [2019] NSWSC 1284 Craig v South Australia (1995) 184 CLR 163 Day v SAS Trustee Corporation [2021] NSWCA 71 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425 Hua Nan Trading Pty Limited v The Owners – Strata Plan No 23296 [2023] NSWCATAP 66 Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Selkirk v The Owners – Strata Plan No 2661 [2024] NSWCATAP 17 Smith v Owners – Strata Plan No 3004 [2022] NSWSC 1599 Tao v The Owners – Strata Plan No 16107 [2023] NSWCATAP 327 The Owners – Strata Plan No 74232 v Tezel [2023] NSWCA 35 Vickery v The Owners – Strata Plan No 80412 [2020] NSWCA 284 Texts Cited: None cited. Category: Principal judgment Parties: Helen Mary Dart (Appellant) The Owners - Strata Plan 71849 (Respondent) Representation: Counsel: J Mee (Appellant) DF Elliot (Respondent)