Hsueh v The Owners – Strata Plan No 61321 [2024] NSWCATCD 47

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hsueh v The Owners – Strata Plan No 61321 [2024] NSWCATCD 47 Hearing dates: 11 January 2024 and 11 April 2024 Date of orders: 6 August 2024 Decision date: 06 August 2024 Jurisdiction: Consumer and Commercial Division Before: D Robertson, Senior Member Decision: (1) The respondent, The Owners – Strata Plan No 61321 is to employ appropriately licensed and qualified tradespersons or contractors to carry out the following work in a proper and workmanlike manner using suitable new materials and in accordance with all relevant laws, rules and regulations, within three months of the date of these orders: (a) The work in relation to Lot 5 in Strata Plan No 61321 (Lot 5) identified in the third to sixth, eighth and ninth bullet points in paragraph 10.1.12 of the report of Mr Kavanagh of Integrated Building and Engineering Consultancy dated 25 September 2023 (the IBEC Report); (b) Treat any instances of mould identified in Lot 5, including in areas presently covered by floating timber floors provided the applicant has previously arranged the removal of the floors; (c) The work identified as Option 1 in paragraph 10.1.22 of the IBEC Report (the Option 1 work); (d) Replace the air brick missing from the courtyard of Lot 5; (e) Ensure that no rodents or other pests remain in any ventilation space adjacent to Lot 5. (2) Upon completion of the Option 1 work, the respondent is to arrange a test (the Option 1 test) to be carried out by a suitably qualified plumber or waterproofing contractor to determine whether the Option 1 work has been effective in preventing leakage of water into Lot 5 from the balcony of Lot 11. (3) If the Option 1 test shows that the Option 1 work has not been effective in preventing leakage of water into Lot 5 from the balcony of Lot 11, the respondent must employ appropriately licensed and qualified tradespersons or contractors to carry out, in a proper and workmanlike manner using suitable new materials and in accordance with all relevant laws, rules and regulations, within a further two months, the work identified as Option 2 in paragraph 10.1.22 of the IBEC Report (the Option 2 work). (4) At the respondent's election, it may carry out the Option 2 work, without carrying out the Option 1 work, within three months of the date of these orders. (5) The respondent, The Owners – Strata Plan No 61321, must pay the applicant, Jade Y Hsueh, the sum of $11,504 (being $935 reimbursement of mould treatment costs and $10,569 in respect of damage to her floating timber floors) within 30 days of the date of these orders. (6) The application is otherwise dismissed. (7) Unless either party files submissions in accordance with order (8) below, there will be no order in relation to the costs of the proceedings. (8) If either party seeks an order in relation to the costs of the proceedings, they may file, and serve upon the other party, submissions of no more than five pages, with any evidence in support, within 14 days of the publication of these orders. (9) If a party files and serves submissions pursuant to Order (8) above, the other party may file and serve submissions in response of no more than five pages, with any evidence in support, within a further 14 days. (10) Submissions in reply to submissions filed and served pursuant to Order (9) above, of no more than three pages, may be filed and served within a further 7 days. Catchwords: LAND LAW – Strata title – Common property - Maintenance and repair of common property – Compensation for breach of owners corporation's obligation to maintain and repair common property – Time limit in s 106(6) of the Strata Schemes Management Act 2015 may not be extended by the Tribunal pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 LAND LAW – Strata title – Common property – Maintenance and repair of common property – Compensation may be awarded for damage to floating timber floors installed without the approval of the owners corporation – No reason to conclude floors would have been required to be removed if not damaged – No reason to conclude approval would not have been given, or that application for approval could have been reasonably refused LAND LAW – Strata title – Owners corporation — Contributions by owners – Tribunal has no jurisdiction to make an order declaring that a lot owner does not owe money to the owners corporation Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Strata Schemes Management Act 2015 (NSW) Cases Cited: David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265; [1995] HCA 43 Di Rico v Cominos [2015] NSWCATCD 75 Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425 Hua Nan Trading Pty Ltd v The Owners – Strata Plan No 32396 [2023] NSWCATAP 66 Hungerfords v Walker (1989) 171 CLR 125; [1989] HCA 8 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Kaye v Owners Strata Plan 4350 [2022] NSWSC 1386 The Owners - Strata Plan No 30691 v Pickard [2024] NSWCATAP 126 The Owners – Strata Plan No 37762 v Pham [2006] NSWSC 1287 The Owners – Strata Plan No 74232 v Tezel [2023] NSWCA 35 The Owners – Strata Plan No 74835 v Pullicin; The Owners – Strata Plan No 80412 v Vickery [2020] NSWCATAP 5 The Owners – Strata Plan No 76830 v Byron Moon Pty Limited [2020] NSWCATAP 186 Treadgold-Svir v Dynamik Constructions Pty Ltd [2023] NSWCATAP 216 Vickery v The Owners – Strata Plan No 80412 [2020] NSWCA 284 Walsh v The Owners – Strata Plan No 10349 [2017] NSWCATAP 230 Category: Principal judgment Parties: Jade Y Hsueh (Applicant) The Owners – Strata Plan No 61321 (Respondent) Representation: Solicitors: Thomas Martin Lawyers (Respondent) File Number(s): 2023/00392830 (formerly SC 23/24509)