The Owners - Strata Plan 32735 v Heather Lesley-SWAN [2012] NSWSC 383

Supreme Court New South Wales

Medium Neutral Citation: The Owners - Strata Plan 32735 v Heather Lesley-SWAN [2012] NSWSC 383 Hearing dates: 16 December 2011 Decision date: 10 August 2012 Jurisdiction: Common Law Before: Hall J Decision: (1) Appeal allowed. (2) The judgment and order of the Local Court made on 30 May 2011 by way of a verdict in the sum of $39,997.18 together with interest be set aside. (3) The costs order made by the Local Court on 30 May 2011 be set aside. (4) The proceedings be remitted to the Local Court on the following bases; (a) The claim for lost rental income only to be determined by that Court constituted by another member of that Court. (b) Judgment to be entered in favour of the appellant (the defendant to proceedings 2010/3041 in the Local Court) in respect of the respondent's claim in that Court for expenses incurred by her for the re-tiling of the balcony, the subject of the proceedings. Catchwords: REAL PROPERTY - STRATA MANAGEMENT - Appeal from Local Court - management and control - rights and obligations of proprietors - where owners corporation breached duty to repair and maintain common property - where lot owner made repairs to common property without permission of owners corporation - whether lot owner entitled to be compensated for expense incurred in undertaking rectification work on common property - expenses not recoverable as a loss attributable to breach of duty - Act does not authorise lot owner to determine nature and extent of construction to be undertaken on common property or engage a contractor to perform work on common property without the consent or approval of the owners corporation - statutory and other remedies available to lot owner where owners corporation in breach of statutory duty - whether lot owner entitled to be compensated for loss of rent attributable to the owners corporation's breach of its duty - Magistrate failed to resolve disputed issues of fact and failed to provide proper reasons as to the basis for conclusions reached - order awarding damages for lost rental claimed set aside - rental claim remitted to Local Court for determination. Legislation Cited: Evidence Act 1995 Fair Trading Act 1987 Local Court Act 2007 Strata Schemes Management Act 1996 Strata Titles Act 1973 Cases Cited: Alchin v Daley [2009] NSWCA 418 Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 79 ALJR 1079 Campbell Davys v Lloyd [1901] 2 Ch 518 Earl of Lonsdale v Nelson (1823) 2 B & C 302, (1823) 107 ER 396 Falcke Scottish Imperial Insurance Co (1886) 34 Ch D 234 Groves v Lord Wimborne [1898] 2 QB 402 Lagan Navigation Co v Lambeg Bleaching, Dyeing and Finishing Co Ltd [1927] AC 226 Lubrano v Proprietors of Strata Plan No 4038 (1993) 6 BPR 13,308 Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705, [2001] NSWCA 305 Nicita v Owners of Strata Plan (No 64837) [2010] NSWSC 68 Pollard v RRR Corporation [2009] NSWCA 110 Proprietors SP14198 v Cowell (1989) NSWLR 478 Ridis v Proprietors of Strata Plan 10308 [2005] NSWCA 246, (2005) 63 NSWLR 449 SAS (Sales) Pty Ltd v SJPJ Pty Ltd [2011] NSWSC 905 Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Stolfa v Owners Strata Plan 4366 and Ors [2010] NSWSC 1507 Travel Compensation Fund v Tambree [2005] HCA 69 Trevallyn-Jones v Owner Strata Plan No 50358 [2009] NSWSC 694 Whittaker v Rozelle Wood Products Ltd (1936) 36 SR (NSW) 204 Workers Compensation (Dust Diseases) Board of NSW v Smith [2010] NSWCA 19 Young v Wheeler (1987) Aust Torts Reports 80-126 Texts Cited: Halsbury's Laws of Australia, 4th edition Category: Principal judgment Parties: The Owners - Strata Plan 32735 Heather Lesley-Swan Representation: Counsel: Appellant - Mr H Woods Respondent - Mr M Young SC Solicitors: Appellant - Jane Crittenden, Lawyer Respondent - Dixon Holmes du Pont File Number(s): 2011/00207012 Publication restriction: No Decision under appeal Jurisdiction: 9109 Date of Decision: 2011-05-30 00:00:00 Before: Magistrate Maloney File Number(s): 2010/3041