Osborne v The Owners - Strata Plan No 13516 (No 2) [2023] NSWCATCD 188

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Osborne v The Owners - Strata Plan No 13516 (No 2) [2023] NSWCATCD 188 Hearing dates: 13 and 14 November 2023 Date of orders: 27 November 2023 Decision date: 27 November 2023 Jurisdiction: Consumer and Commercial Division Before: G Blake AM SC, Senior Member Decision: 1. The respondent is to pay $4,752.00 to the applicant immediately. 2. The respondent is to pay 50% of the costs of the applicant of the proceedings other than the costs of the application for miscellaneous matters of the applicant filed on 5 October 2023. 3. The proceedings are otherwise dismissed. 4. If any party wishes to make an application to vary order 2 above, the applicant (the costs applicant) is to file and serve a costs application, including submissions limited to three pages and any evidence in support, by 6 December 2023. 5. The respondent to the costs application is to file and serve any submissions limited to three pages and any evidence in opposition by 15 December 2023. 6. The costs applicant is to file any submissions limited to two pages in reply by 20 December 2023. 7. The applicable 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. If a hearing is not dispensed with, the parties will be advised of a date for the hearing of the application. Catchwords: LAND LAW - Strata title – Whether the owners corporation breached the duties to properly maintain and keep in a state of good and serviceable repair the common property and to renew or replace any fixtures or fittings comprised in the common property - Whether the owners corporation is liable for damages for loss of rent and other expenses – Whether a successful lot owner should be excluded from the obligation to contribute to any levy in respect of damages and costs payable to successful lot owner by an unsuccessful owners corporation Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 28, 29, 60, Sch 4, cl 3 Civil and Administrative Tribunal Rules 2014 (NSW), r 38 Civil Liability Act 2002 (NSW), Pt 4 Residential Tenancies Act 2010 (NSW), s 52 Strata Schemes Management Act 2015 (NSW), ss 104, 106, 119, 122, 226, 232 Cases Cited: Keith Bannister v David and Mariam Cheung [2014] NSWCATCD 105 Lane v Bloc Constructions (NSW) Pty Ltd [2021] NSWCATAP 114 Shum v Owners Corporation SP30621 [2017] NSWCATCD 68 Smith v Owners - Strata Plan No. 3004 [2022] NSWSC 1599 Szeto v The Owners - Strata Plan No 1418 [2023] NSWCATAP 105 The Owners – Strata Plan No 2341 v P & M Sachs Pty Ltd [2022] NSWCATAP 304 The Owners - Strata Plan No 33368 v Gittins [2022] NSWCATAP 130 The Owners - Strata Plan No. 36613 v Doherty; Doherty v The Owners - Strata Plan No. 36613 [2021] NSWCATAP 285 The Owners – Strata Plan No 62713 v Liberant [2022] NSWCATAP 80 The Owners – Strata Plan No 74232 v Tezel [2023] NSWCA 35; (2023) 20 BPR 43,119 Trevallyn-Jones v Owners Strata Plan No 50358 [2009] NSWSC 694 Vickery v The Owners Strata Plan 80412 (2020) 103 NSWLR 352; [2020] NSWCA 284 Texts Cited: None cited Category: Principal judgment Parties: Virginia Louise Osborne (Applicant) The Owners - Strata Plan No 13516 (Respondent) Representation: Counsel: C Coventry (Applicant) J Knackstredt (Respondent)