Owners Corporation Strata Plan No 14172 v Cai [2019] NSWCATCD 56

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Owners Corporation Strata Plan No 14172 v Cai [2019] NSWCATCD 56 Hearing dates: 7 December 2018 Date of orders: 25 June 2019 Decision date: 25 June 2019 Jurisdiction: Consumer and Commercial Division Before: C Paull, Senior Member Decision: The Tribunal finds that it has no jurisdiction to determine the proceedings and transfers the proceedings to the Local Court. Legislation Cited: Strata Schemes Management Act 2015 Cases Cited: Owners Corporation SP No 30621 v Shum Category: Principal judgment Parties: The Owners Strata Plan No 14172 (Applicant)

Alex Cai and Noam Banisti (Respondents) Representation: Counsel: Mr Newton (for the applicant) Mr Williams (for the second respondent)

Solicitors: Chambers Russell (for the applicant) McAuley Hawach (for the respondent) File Number(s): SC 18/12035 Publication restriction: Nil

REASONS FOR DECISION

BACKGROUND 1. The Owners Corporation of SP14172 (the OC) has brought these proceedings against Alex Cal and Noam Banisti, being the owner and lessee, respectively, of lot 10 in that strata plan. 2. The OC of this mixed, residential and commercial scheme seeks damages under s232 Strata Schemes Management Act 2015 (SSMA). 3. The OC alleges that the owner and occupier are in breach of their obligations (under by-law 5 and under s 153 SSMA ) to refrain from using, enjoying or permitting the use or enjoyment of the lot in such a way as to create a "nuisance or hazard" and so interfere with another lot owner's use of a lot or the common property. 4. In is convenient to note here that the OC originally lodged Application SC17/40606 (the 2017 application) and that this application has now been superseded (subject to the issue of costs) by Application SC18/12035 (the 2018 application). The 2018 application is an amended application, originally seeking rectification and access orders, as well as damages. 5. At the hearing the OC, having by then gained access and carried out building work, only sought orders for damages arising from the owner's and occupant's alleged breach of s153 and by law 5 of the SSMA.