Mullen v Owners Corporation SP 15342 [2017] NSWCATCD 97

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mullen v Owners Corporation SP 15342 [2017] NSWCATCD 97 Hearing dates: 10 August 2017 Date of orders: 16 October 2017 Decision date: 16 October 2017 Jurisdiction: Consumer and Commercial Division Before: A Bell SC, Senior Member Decision: 1. Application dismissed. Catchwords: Breach of statutory duty to maintain and repair common property, causation, jurisdiction of Tribunal to award damages. Legislation Cited: Strata Schemes Management Act 2015 Strata Schemes Management Act 1996 Cases Cited: Rosenthal v The Owners – SP 20211 [2017] NSWCATCD 80 Shum v Owners Corporation SP30621 [2017] NSWCA TCD 68. Category: Principal judgment Parties: Applicant: Annette Frances Mullen Respondent: Owners Corporation SP 15342 Representation: Applicant: G. McGlashan ( Solicitor) Respondent: T. Bacon (Solicitor) File Number(s): SC 17/16775 Publication restriction: Unrestricted

reasons for decision

Introduction 1. The applicant, Ms Annette Mullen, is the owner of Lot 14 in Strata Plan 15342 (Unit 14), which is a strata scheme consisting of 14 townhouses located in [redacted] (Strata Scheme).The respondent is the Owners Corporation of the Strata Scheme ( Owners Corporation). 2. Ms Mullen purchased Unit 14 in September 2014. It is common ground that in May 2015 termite damage to Unit 14 was identified throughout the ground level of the townhouse, including below the stairs and throughout the staircase leading to the upper level. 3. Ms Mullen says that the Owners Corporation should have carried out annual termite inspections of the common property and that by failing to do so it failed to properly maintain the common property of the Strata Scheme and keep it in a state of good and serviceable repair. Ms Mullen says that the Owners Corporation thereby breached a statutory duty owed to her under section 106(1) of the Strata Schemes Management Act 2015 (NSW) (the Act). Ms Mullen claims damages of $48,342.04 under section 106(5) of the Act. 4. The Owners Corporation denies that it has breached its statutory duty. It says that the termite damage was not caused by any failure to maintain the common property or keep it in good and serviceable repair. The Owners Corporation says in the alternative that Ms Mullen contributed to her own loss and damage by failing to carry out a pest inspection before she purchased Lot 14. The Owners Corporation disputes the amount of damages claimed. The Owners Corporation also says that the Tribunal has no jurisdiction to award damages under s 106(5) of the Act. 5. Ms Mullen gave sworn evidence and was cross-examined. Ms Mullen also relied on an expert report prepared by Mr John Maglis, a consulting engineer, dated 30 June 2017.Mr Maglis gave sworn evidence and was cross –examined. 6. The respondent relied on three affidavits. The first affidavit was sworn by Mr Robert Muir on 27 July 2017. Mr Muir has been the owner of Unit 13 in the Strata Scheme since 1999. The second affidavit was sworn by Mr Rein Simmul on 28 July 2017.Mr Simmel and his wife were the owners of Unit 14 from 2000 until 2007.The third affidavit was sworn by Ms Glenda Hewitt on 31 July 2017. Ms Hewitt purchased Unit 4 in 2004 and has lived there since that time. Ms Hewitt has been a member of the Executive Committee of the Strata Scheme (Committee) since 2004. None of the deponents of these affidavits was required for cross-examination.