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Posted 27 November 2022
Category: Strata
As a result of recent heavy rainfall, many lot owners have suffered significant water ingress/penetration issues and consequential water damage within their lots. These include, but are not limited to:
These can be a result of a building defect, or poorly maintained common property.
As a result of the above, lot owners have suffered financially including loss of rent, or the cost of renting when the unit becomes uninhabitable, notwithstanding the cost to replace fixtures and fittings including furniture, cabinets, curtains and carpets (in the absence of the owners corporation effecting the repair and maintenance).
In addition to the adverse impact of the amenity of the building and the subsequent decrease of market and rental values of lots, if an owners corporation has failed to repair and maintain common property, the consequences can be serious in Court and/or Tribunal proceedings.
The recent storms have opened an array of insight for an individual owner to consider the next cause of action.
Recovery of damages
In accordance with Section 106 of the Strata Schemes Management Act 2015 (NSW) (“SSMA”), the owners corporation has a strict duty to repair and maintain the common property of a strata scheme. However, if the owners corporation fails to fulfil its strict duty of repair and maintenance, the lot owner is entitled to recover reasonably foreseeable loss as a result of the owners corporation breaching its statutory duty pursuant to Section 106(5) of the SSMA.
Circumstances that may give rise to a lot owner claiming damages (compensation) include:
Following the decision handed down by the NSW Court of Appeal in Vickery v The Owners – Strata Plan No 80412 [2020] NSWCA 284, the Court determined that the Tribunal can award a lot owner for significant damages as a result of the owners corporation’s failure to repair and maintain common property under section 106(5) of the SSMA.
Currently, there is no jurisdictional limitation on the amount that can be awarded by the Tribunal for the damages resulting from an owners corporation contravening its statutory duty under subsection 106(1) of the SSMA.
This means lot owners will now get a greater chance at having their disputes determined by the Tribunal for significant damages in a less formal and cost effective jurisdiction.
Some successful cases include:
Name of Case | Quantum of Damages (in approximate amounts)
|
Basis of Damages |
Vickery v The Owners – Strata Plan No 80412 [2020] NSWCA 284 & The Owners – Strata Plan No 74835 v Pullicin; The Owners – Strata Plan No 80412 v Vickery [2020] NSWCATAP 5
|
$97,000.00 |
|
Smith v The Owners – Strata Plan 3004 | $6,400.00 |
|
Rosenthal v The Owners – SP 20211 [2017] NSWCATCD 80 | $8,800.00 |
|
The Owners Strata Plan No 30621 v Shum [2018] NSWCATAP 15 | $28,000.00 |
|
Shih & ors v The Owners – Strata Plan No 87879 [2018] NSWCATCD 74 | $540.00 |
|
Carli v The Owners – Strata Plan No 56120 [2018] NSWCATCD 55 | $51,000.00 |
|
Huang & Giang The Owners Strata Plan No.65865 [2021] NSWCATCD 15 | $7,730.00
|
|
Zanetti v The Owners – Strata Plan No 43300 [2018] NSWCAT | $70,598.09 |
|
Liberant v The Owners – Strata Plan No 62713 [2019] NSWCATCD | $55,510.12 |
|
The Owners – Strata Plan No 62713 v Liberant [2022] NSWCATAP 80
(appeal of above matter of Liberant v The Owners – Strata Plan No 62713 [2019] NSWCATCD) |
As above |
|
Tezel v The Owners – Strata Plan No 74232 [2022] NSWCATAP 149
|
$447,200 |
|
Bonanno v The Owners – Strata Plan No. 44034 [2022] NSWCATCD | $4,731.00 |
|
If you have suffered or believe that you may have suffered losses (financial or otherwise) as a result of an owners corporation’s failure to repair and maintain the common property, please contact our experts at Bannermans Lawyers at enquiries@bannermans.com.au or call us on 02 9929 0226.
***The information contained in this article is general information only and not legal advice. The currency, accuracy and completeness of this article (and its contents) should be checked by obtaining independent legal advice before you take any action or otherwise rely upon its contents in any way.