The Owners – Strata Plan No. 67698 v Leadership Pty Ltd t/as Five Dock Realty [2015] NSWCATAP 57

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: The Owners – Strata Plan No. 67698 v Leadership Pty Ltd t/as Five Dock Realty [2015] NSWCATAP 57 Hearing dates: 18 March 2015 Decision date: 30 March 2015 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President P Durack SC, Senior Member Decision: (1)Appeal allowed. (2)Set aside the orders in the Tribunal below in so far as they dismissed the claim for $4,256.87. (3)The whole of the claim for $4,256.87 be reconsidered by the Tribunal below. Catchwords: Civil and administrative Tribunal (NSW) – appeal – three year limitation period for consumer claims – date when the cause of action first accrued. Legislation Cited: Civil and Administrative Tribunal Act 2013 NSW. Consumer Claims Act 1998 (NSW). Category: Principal judgment Parties: The Owners – Strata Plan No. 6798 (Appellant) Leadership Pty Ltd (Respondent) Representation: S Theron (Owner) (Appellant) J La Mela (Director) (Respondent) File Number(s): AP14/58222 Publication restriction: None Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Date of Decision: 31 October 2014 Before: S Westgarth, Deputy PresidentP Durack SC, Senior Member File Number(s): GEN 14/41429

JudgEment

Introduction 1. The only two lots in the strata scheme concerning a property in Abbotsford in Sydney are now owned by Mr and Mrs Theron. 2. In the Tribunal below, the body corporate constituted by these owners of the two lots ("the Appellant") made three distinct money claims against the company which had been the strata scheme managing agent (the "Respondent"). All these claims were dismissed by the Tribunal on the ground that it had no jurisdiction to determine such claims. 3. In this appeal, the strata scheme body corporate seeks to overturn the dismissal of one of these claims, namely a claim in the sum of $4,256.87 in respect of charges, including management fees, paid to the Respondent from the strata account since 27 February 2012. 4. The Tribunal below dismissed this claim because it concluded it had been lodged outside the three year limitation period for the commencement of a consumer claim. In so deciding, the Tribunal below concluded that the three year period commenced to run from 1 November 2006, being the date when it regarded the contract in relation to the strata managing agency to have been made. 5. The Tribunal below did not otherwise assess the merits of the claim for $4,256.87. 6. In our opinion, the Tribunal erred in concluding that the limitation period commenced to run from the date when the contract was made. In doing so, it erred on a question of law. As a result, in our opinion, the appeal should be allowed and the whole of the claim for $4,256 should be reconsidered by the Tribunal below. 7. Our reasons are set out below.