This article about awarding damages to a lot owner for their losses incurred by the Owners Corporation’s breach of its duty – referencing the case Shih v The Owners – Strata Plan No. 87879 [2019] NSWCATAP 263 has been supplied by Allison Benson, Kerin Benson Lawyers.
In a decision handed down yesterday, the Appeal Panel of the NSW Civil & Administrative Tribunal has held that the Tribunal does not have the power under section 106(5) of the Strata Schemes Management Act 2015 to award damages to a lot owner for their losses incurred by the Owners Corporation’s breach of its duty under sections 106(1) and (2) of the Act. The Owners Corporation’s duty is to:
- An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.
- An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.
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This is a complete turnaround from the position in The Owners – Strata Plan No. 30621 v Shum [2018] NSWCATAP 15 where the Tribunal had awarded damages to the lot owner for their consequential loss.
After the Shum decision it was thought that section 106(5) of the Act provided the Tribunal with the jurisdiction to award compensation to lot owners for their consequential losses (lot property damages, rent etc.).
The Appeal Panel, while finding that there is no power for the Tribunal to make an order for consequential loss under section 106(5) of the Act, did leave the door open to the possibility that the Tribunal has the power to award damages for a lot owner’s consequential losses under the Tribunal’s general decision making power in section 232(1) of the Act. Specifically, the Appeal Panel, while noting that this argument had not been run before them, stated:
Where does this leave lot owners and Owners Corporations? It is now even more important than ever to seek legal advice as soon as there is an awareness of any losses caused by a failure to maintain and repair the common property as lot owners may have a claim both in the Tribunal under section 232(1) of the Act and also in a Court under both section 106(5) of the Act and at common law. Note the limitations periods for each type of claim differ.
The case citation is: Shih v The Owners – Strata Plan No. 87879 [2019] NSWCATAP 263
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Allison Benson
Kerin Benson Lawyers
P: 02 4032 7990
E: [email protected]
Please note: This is not intended to be legal advice. You should seek legal advice specific to your situation.
This post appears in Strata News #298.
This article has been republished with permission from the author and first appeared on the Thoughts from a Strata Lawyer website.
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