The Owners – Strata Plan SP20211 v Rosenthal; Rosenthal v The Owners – Strata Plan SP20211 [2018] NSWCATAP 243

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: The Owners – Strata Plan SP20211 v Rosenthal; Rosenthal v The Owners – Strata Plan SP20211 [2018] NSWCATAP 243 Hearing dates: 5 February, 16 April 2018 Date of orders: 15 October 2018 Decision date: 15 October 2018 Jurisdiction: Appeal Panel Before: L Pearson, Principal Member R Perrignon, Senior Member Decision: Appeal AP 17/41893: 1 The appeal is allowed in part. 2 The orders made on 29 August 2017 are varied to be: (1) The respondent shall immediately take all steps to further investigate as necessary and to correct all sources of water ingress to lot 64 and in particular shall carry out the following work in addition to any other that is found necessary to achieve compliance with these orders: (i) Replace waterproof membrane around lot 64 on level 20; (ii) Investigate and correct as necessary water ingress from downpipe within column to south end of main bedroom; (iii) Waterproof the window hob to second bedroom, install or correct as necessary the flashing and weep holes to the wall between the second bedroom and study and perform all other steps necessary to correct the ingress of water to the second bedroom and study; (2) The respondent shall immediately take all steps to replace the fire rated front door to lot 64. (3) All work referred to in orders 1 and 2 shall be completed on or before three months from the date of these orders. (4) Subject to Order 3, the respondent, The Owners-Strata Plan 20211, shall pay the applicants, Thomas Rosenthal and Joanne Rosenthal, jointly, the sum of $900 within 28 days of the date of these orders. 3 Should either party seek an order different to amended Order 2(4), that party is to provide submissions to the Tribunal and the other party, within 14 days of the date of these orders, and the other party is to provide any submissions in reply within a further 7 days, including whether any further hearing on this issue is requested. 4 The appeal is otherwise dismissed. Appeal AP 18/0172: 1 Leave to appeal refused. 2 Appeal dismissed. Appeals AP 17/41893 and AP 18/0172: 1 If any party seeks an order for costs of the appeals, leave is granted to file and serve a short written submission on that issue only within 21 days of the date of these orders. 2 Leave is granted for the other party to file and serve a short written submission in reply within a further period of 21 days. In any such submission the parties are to address the issue of whether the Tribunal should dispense with a hearing on the issue of costs pursuant to the provisions of the Civil and Administrative Tribunal Act 2013 s 50(2). Catchwords: APPEAL – strata scheme – obligation to maintain and repair common property – unauthorised structures – whether lot property or common property – interpretation of special by-laws – whether reversal of onus of proof - damages for breach of statutory duty COSTS – whether special circumstances Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Strata Schemes Development Act 2015 Strata Schemes (Freehold Development) Act 1973 Strata Schemes Management Act 1996 Strata Schemes Management Act 2015 Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Collins v Urban [2014] NSWCATAP 17 Cripps v G & M Dawson [2006] NSWCA 81 House v The King (1936) 55 CLR 499 Maxwell v Murphy (1957) 96 CLR 261, [1957] HCA 7 Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Mullen v Owners Corporation SP 15342 [2017] NSWCATCD 97 Pholi v Wearne [2014] NSWCATAP 78 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Ridis v Strata Plan 10308 [2005] NSWCA 246 Seiwa Australia Pty Ltd v Owners Strata Plan 25042 [2006] NSWSC 1157 The Owners SP 35042 v Seiwa Australia Pty Ltd [2007] NSWCA 272 The Owners Strata Plan No 30621 v Shum [2018] NSWCATAP 15 Worrall v Commercial Banking Company of Sydney Ltd (1917) 24 CLR 28, [1917] HCA 67 Category: Principal judgment Parties: The Owners – Strata Plan SP 20211 (Appellant in AP 17/41893, Respondent in AP 18/0172 ) Thomas and Joanne Rosenthal (Respondents in AP 17/41893, Appellants in AP 18/0172) Representation: Counsel: J Young (Appellant in AP 17/41893, Respondent in AP 18/0172 ) M Galvin (Respondents in AP 17/41893, Appellants in AP 18/0172)