Shum v Owners Corporation SP30621 [2017] NSWCATCD 68

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Shum v Owners Corporation SP30621 [2017] NSWCATCD 68 Hearing dates: 24 May 2017 Decision date: 30 August 2017 Jurisdiction: Consumer and Commercial Division Before: P Thew, General Member Decision: 1. Order that the Owners Corporation SP30621 pay Albert Shum the sum of $55,943.24 within 7 days of the date of this order. Catchwords: Jurisdiction of Tribunal to award damages for breach of statutory duty, strictness of duty to repair and maintain, exculpations from duty to repair and maintain, burden of proof, definitions of lot property/common property Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Strata Schemes Management Act 2015 (NSW) Strata Schemes Management Act 1996 (NSW) Cases Cited: Stolfa v Owners Strata Plan 4366 & ors [2009]NSWSC 589, Seiwa Australia Pty Ltd v The Owners SP 35042[2006]NSWSC 1157, The Owners SP 35042 v Seiwa Australia Pty Ltd [2007]NSWCA 272, The Owners of Strata Plan 50276 v Thoo [2013]NSWCA 270, Ridis v Strata Plan 10308 [2005] NSWCA 246, Category: Principal judgment Parties: Albert Shum (applicant) Owners Corporation SP 30621 (respondent) The Secretary, Owners Corporation (other) Representation: Mr Ho Yein Shum appeared for the applicant

There was no appearance by the respondent or other party File Number(s): SC 17/07455 Publication restriction: Nil

REASONS FOR DECISION 1. On 15 February 2017 the Tribunal received the application made by Mr Albert Shum (the Applicant) seeking orders pursuant to sections 106, 126 and 232 of the Strata Schemes Management Act 2015 (NSW) (SSM Act) (the Application). 2. The Applicant is the owner of Lot 16/332 Military Road, Cremorne NSW 2090 (Lot 16) in Strata Plan No 30621. 3. Mr Ho Yein Shum, the Applicant's son, appeared for the Applicant. The Applicant did not attend and there was no appearance by the Respondent or by the Secretary of the Owners Corporation. 4. In order to hear and determine the Application ex parte, in the absence of the Respondent, the Tribunal needed to be satisfied that it was in the interests of justice and the guiding principle generally under section 36 of the Civil and Administrative Act 2013 (NSW) (the NCAT Act) to do so. In this respect the Tribunal must be satisfied that the Respondent was or ought to have been aware that the Application was listed for hearing on 24 May 2017. 5. In forming the view that it was in the interests of justice and the guiding principle under section 36 of the NCAT Act to hear the matter ex parte, the Tribunal had regard to: 1. The practice of the Tribunal of issuing Notices of Hearing to the parties to the proceedings; 2. The copy on the Tribunal's file of a Notice of Hearing dated 9 March 2017 issued to the Respondent at Strata Choice, Locked Bag 1919, St Leonards NSW 1590, being the address on the Strata Choice letterhead. 3. The absence of any evidence on the Tribunal file that the Notice of Hearing dated 9 March 2017 was not received by the Respondent, such as a return to sender envelope. 4. The letter dated 23 May 2017 from Strata Choice requesting an adjournment of the hearing on 24 May 2017 for the purposes of 'arranging suitable legal counsel'. 1. At the commencement of the hearing on 24 May 2017 the Tribunal formally refused the Respondent's application for an adjournment on the basis that the parties had been aware that the matter had been listed for hearing since the Tribunal's Notice of Hearing dated 9 March 2017 and the parties had had sufficient time to arrange legal representation. 2. Based on the above, the Tribunal was satisfied that the Respondent knew or ought to have known of the hearing date of 24 May 2017 and that it was in the interests of justice and the guiding principle under section 36 of the NCAT Act to hear and determine the Application ex parte.