BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – secret commission made by builder to owner’s agent without disclosure of payment to owner – whether builder’s work defective - whether builder failed to achieve practical completion by date specified in contract
BUILDING AND CONSTRUCTION – Home building – defects claim – Whether defect remedied – Whether evidence to substantiate defects – whether evidence to substantiate remedies sought – claim for pre-litigation costs as damages – Liquidated damages – right to claim common law damages – whether liquidated damages provision void as inconsistent with s 18G
BUILDING AND CONSTRUCTION – termination of home building contract – repudiation by builder – builder’s claim for restitution damages – defective and incomplete residential building work – scope of works for items of defective and incomplete work – appropriate remedy – preferred outcome – money order for rectification costs – alternative remedy of solatium damages – delay damages – whether refund for overpayment or payment by mistake of variation invoice
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – related proceedings - statutory warranties – breach – whether evidence sufficient make work order – whether major defect established – whether builder liable to indemnify developer
LAND LAW — strata title — common property — staged development — interpretation of strata plan of subdivision excepting “pipes, wires, ducts, and cables” from lot property — whether gutters and downpipes fall within exception as “pipes”. LAND LAW — strata title — owners corporation — powers, duties, rights and liabilities — duty to maintain and repair common property — breach of duty — failure to repair gutters and downpipes over extended period — whether specific work order necessary to ensure compliance.
BUILDING AND CONSTRUCTION — Contract — Damages — Accord and satisfaction — Whether execution by the appellants of a “Quotation for Variation” including an allowance of $152, representing the explicit allowance for liquidated damages for delay provided by the contract, thereby resolved all claims for damages for delay accrued to that date — Held applicants had not resolved all claims for damages for delay and could pursue claims in excess of the amount allowed in the Quotation for Variation BUILDING AND CONSTRUCTION — Contract — Damages — Delay — Remoteness — Rule in Hadley v Baxendale — Whether loss of opportunity to earn income from renting properties was a consequence arising naturally, that is according to the usual course of things, from the delay by the respondent in bringing a residential building project to completion — Whether such loss may reasonably be supposed to have been in the contemplation of the parties at the time the contract was entered into — Held loss too remote CIVIL PROCEDURE — Course of evidence — Reopening case — Whether the applicants should have leave to reopen their case after the conclusion of the hearing — Circumstances in which leave to reopen should be granted — Absence of evidence of the reasons why the evidence was not tendered at the hearing — Prejudice to the respondent — Probative value of the evidence sought to be led — Leave to reopen refused CONTRACTS — Remedies — Damages — Assessment of damages for delay in completion of residential dwellings— Loss of rent— Allowance for vicissitudes
BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Building dispute — Jurisdiction — NSW Civil and Administrative Tribunal Consumer and Commercial Division — Jurisdiction and powers — whether a claim by a building owner for a refund of insurance premium paid by a builder for compulsory home building compensation insurance is a “building claim”
HOME BUILDING – meaning of “if it is constructed for use in conjunction with a dwelling” in Schedule 1 clause 3(2) of the Home Building Act - breach of statutory warranty – major defect – Design and Building Practitioners Act 2020 – section 37 duty to exercise reasonable care
COSTS – Costs where the New South Wales Land and Environment Court has transferred proceedings pursuant to section S13A of the Dividing Fences Act 1991.
Retail Lease – jurisdiction - permitted use of the premises is “massage and beauty” - whether the use of the premises is a prescribed business under the Retail Leases Act – what is the predominant use of the premises
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rights and obligations of landlords and tenants — landlord’s obligations to maintain premises in a reasonable state of repair LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rights and obligations of landlords and tenants — tenants’ right to reasonable quiet enjoyment of rented premises LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rent — Excessive rent
CONSUMER LAW-Consumer guarantees under Australian Consumer Law-whether motor vehicle of acceptable quality-test of acceptable quality in section 54 of Australian Consumer Law- consideration of consumer guarantee in section 55 of Australian Consumer Law-whether motor vehicle fit for purpose - whether repair to motor vehicle took unreasonable time-whether breach of consumer guarantees established- remedies for breach of consumer guarantees against suppliers and manufacturers
LAND LAW – strata title – appointment of compulsory strata managing agent – maintenance of common property by owners corporation – s.106 of the Strata Schemes Management Act 2015 (NSW) - work order - damages
STRATA TITLE – common property – maintenance and repair – alteration and addition – relationship between ss 106 and 108 of the Strata Schemes Management Act 2015 (NSW) – invalidation of resolution – s 24 of the Strata Schemes Management Act 2015 (NSW) - special levies – when a special levy is required – s 81(4) of the Strata Schemes Management Act 2015 (NSW) – variation of special levy – s 87 of the Strata Schemes Management Act 2015 (NSW) - when the Tribunal may make orders under ss 232 and 241 of the Strata Schemes Management Act 2015 (NSW)
LAND LAW — Strata title — Strata managing agent — Effect of s 50 term of appointment expiring — Agent continued to provide services — Reasonableness of fees CONTRACTS — Formation — Implied contract — Expired strata managing agent agreement ESTOPPEL — Estoppel by convention — Mutual assumption
COSTS — Party/Party — where the applicant applied to the Tribunal for the exercise of jurisdiction under both a referral from an Adjudicator pursuant to s 71B of the Community Land Management Act 1989 (NSW) and in the original jurisdiction conferred on the Tribunal by the Civil and Administrative Tribunal Act 2013 (NSW) – where the Tribunal made a decision and gave orders in both jurisdictions – where the Tribunal at first instance made a single costs order without distinguishing the jurisdictions in which the cost order was made – where on appeal the Appeal Panel determined that the Tribunal did not have power to make a costs order in connection with the referred jurisdiction – where the Appeal Panel remitted the decision on costs for re-consideration by the Tribunal in its original jurisdiction only – order made for the dismissal of the application for costs.
CONSUMER LAW — Consumer guarantees — Supply of services — Guarantee as to due care and skill — Misleading conduct at to the nature of services — Nature or characteristics of services —Unfair terms of consumer contracts
BUILDING and CONSTRUCTION – HOME BUILDING – identity of builder – correct revision of contract - refund of alleged overpayment – alleged defective works – work or money order
CONSUMER LAW — Consumer guarantees — supply of services — guarantee as to acceptable quality — guarantee as to due care and skill – assessment of damages – assessment of compensation
CONSUMER LAW — misleading or deceptive conduct — representations as to future matters — silence or non-disclosure — architects — architectural services agreement — architect accepted the engagement and initial payment without advising the budget was unachievable — whether the architect’s silence constituted an implied representation that it could design a home within the specified budget — whether the representation concerned a future matter — whether the respondent had reasonable grounds for making the representation COSTS — costs as damages — distinction from costs of proceedings — whether pre litigation legal fees are recoverable as damages for loss or damage under section 236 of the Australian Consumer Law
LAND LAW — Strata title — By-laws STRATA LAW – validity of by-law – s 139(1) Strata Schemes Management Act 2015 (SSMA), by-law must not be harsh, unconscionable or oppressive – S 150 (power of Tribunal to declare by-law invalid) –
LAND LAW — Strata title — Owners corporation — Contributions by owners — insurance costs — unreasonable refusal of consent STRATA SCHEMES — owners corporation — contributions — increased insurance premiums — levy on individual lot owner attributable to particular use of lot — whether refusal to consent to pay increased premium was unreasonable
REAL PROPERTY – STRATA MANAGEMENT – lot owner seeking refund of levies for owners corporation litigation costs and expenses in earlier proceedings the subject of consent orders – sold lot after commencing proceedings – separate questions – jurisdiction and standing for claim determined at time of filing application – correct characterisation of consent orders as not precluding claim for exemption from further owners corporation costs in the earlier proceedings – Strata Schemes Management Act 2015 (NSW) ss 84, 104, 145, 232
COSTS – proceedings not determined on the merits because of a compromise – whether special circumstances established – whether an insurance claim made by the owners corporation could support a deferral under s. 106(4) of the Strata Schemes Management Act 2015 (NSW)
CONSUMER LAW — Unfair contract terms — Consumer contract — site agreement under Residential (Land Lease) Communities Act 2013 (NSW) – whether a standard form contract — term providing for increase in site fees by reference to multiple factors — whether term causes a significant imbalance in the parties’ rights and obligations — whether term not reasonably necessary in order to protect the legitimate interests of the respondent — whether term excluded from the unfair contract regime because it sets the “upfront price” LEASES AND TENANCIES — Legislation protecting tenants — Residential (Land Lease) Communities Act 2013 (NSW) — increase of site fees by fixed method — remedy where term found void as unfair contract term — whether to order refund of fees overpaid — whether to make order directing a refund to other home owners not party to proceedings
BUILDING and CONSTUCTION – NSW Government home building contract for work over $20,000 – Contract not terminated at the time of the hearing – Notice of suspension – Meaning of ‘prevents the contractor from carrying on the work’ – Clause 24
CONSUMER LAW – Consumer guarantees under Australian Consumer Law – whether televisions of acceptable quality – whether repair services rendered with due care and skill – whether failure to comply with consumer guarantee a major failure – similar but not identical replacement offered and accepted – remedies available
LEASE AND TENANCIES – Residential Tenancies Act 2010 (NSW) – residential tenancy agreement for strata unit - damage to lift in common property of strata scheme allegedly caused by tenant – whether lift is common property or within definition of ‘residential premises’ in s 62 of the Residential Tenancies Act – whether landlord can claim rental bond of strata unit for damage to common property of strata scheme
BUILDING AND CONSTRUCTION – Incomplete work, defective work, damage to property alleged CIVIL PROCEDURE – Assessment of damages – ex parte hearing – Tribunal should neither adopt claims of an applicant without scrutiny nor act as advocate for the absent respondent
LAND LAW — Strata title — Common property — Maintenance and repair of common property — Order to reinstate where no authorisation for lot owner works given
LAND LAW – Strata schemes – Common property – whether common property or lot property LAND LAW – Strata schemes – By-laws – power to make declarations that by-law void, repealed or varied – standing of owners corporation to seek order declaring by-law invalid – validity of by-law purporting to qualify duties under s 106 LAND LAW – Strata title – Owners corporation – power of owners corporation to enter into settlement agreement – authority of strata managing agent to enter into settlement agreement – ratification by strata committee LAND LAW – Strata schemes – Common property – Maintenance and repair of common property – compliance with duties under s 106
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — NSW Civil and Administrative Tribunal — Jurisdiction and power — Limitations on claims for compensation in respect of a breach of a residential tenancy agreement LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rent — Excessive rent LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Repairs — Landlord’s duty — Repairs to common property not forming part of the residential premises LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rent — Rent increases — Excessive rent increase
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Alteration of premises by tenant — Fixtures and fittings — Strata title — Common property — Maintenance and repair of common property — Compensation
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rights and obligations of landlords and tenants — landlords obligations to provide and maintain locks and keys, and to provide and maintain premises in a reasonable state of repair LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rent — Rent reductions
BULDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – s 18E Home Building Act 1989 (NSW) – major defect – whether defects are major defects – appropriate method to rectify BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – successor in title – extension of statutory warranties – knowledge of owner when purchased property – extent and nature of defects at date of purchase - causation
Consumer claim – agent’s claim for expenses – whether agent had engaged in misleading or deceptive conduct and breach of contract – whether the agent underquoted – whether agent misrepresented the sale price for the property in the marketing campaign – whether the consumer was misled into signing the agency agreement – whether agent liable to consumer for various costs incurred – whether the consumer liable to the agent for marketing expenses – whether consumer altered the sales agency agreement
CIVIL PROCEDURE — Civil and Administrative Tribunal — Application for reinstatement — Civil and Administrative Tribunal Act 2013 (NSW) s 55 — proceedings dismissed for non-appearance — previous application for reinstatement refused — second reinstatement application filed — extension of time to file reinstatement application — abuse of process — no new material to justify fresh consideration of second application — no basis for extension of time for filing of application
CONSUMER LAW – breach of contract – Uber driver – deactivation of access to Uber app – breach of contract - assessment of damages – whether sufficient evidence to prove loss
LAND LAW - STRATA TITLE – obligations of owners and occupiers - use of lot in a manner or for a purpose that causes a nuisance – whether e-bike and pram left on common property causes a nuisance or hazard to other occupiers of lots – meaning of nuisance in context of strata scheme – nature of a lot owner’s interest in common property
LAND LAW – Strata title – Strata plan – Unit entitlements – Strata Schemes Management Act 2015 (NSW) s 236 – Order allocating unit entitlements – Requirement for certificate of valuation – Whether certificate required to value all lots or only those whose unit entitlement is proposed to be changed – Whether a lot is a “lot to which the application relates” if its unit entitlement does not change but the aggregate unit entitlement of all lots is reduced LAND LAW – Strata title – Owners corporation – Liability of owners corporation – Circumstances in which an owners corporation is liable to lot owners for breach of statutory duty – Strata Schemes Management Act 2015 (NSW) s 9 – Extent of the statutory duty arising from the conferral of responsibility for the management of a strata scheme LAND LAW – Strata title – Owners corporation – Liability of owners corporation – Circumstances in which an owners corporation is liable to lot owners for negligence – Extent of an owners corporation’s duty of care to lot owners in relation to the management of the strata scheme LAND LAW – Strata title – Time-limit for commencement of applications in the Civil and Administrative Tribunal by lot owners seeking damages for breach of statutory duty or negligence against the owners corporation – Civil and Administrative Tribunal Rules 2014 (NSW) rule 23(1)(b)
CONSUMER LAW - consumer claim – alleged breach of contract and of consumer guarantees – alleged breach of duty to landowner – unpaid balance of contract price – whether work completed and amount owing – scope of work – scope of liability – measure of damages - appropriate relief
LAND LAW – strata title – Strata Schemes Management Act 2015 (NSW) – whether timber decking is lot property or common property – duty of owners corporation to repair or replace – s 106 Strata Schemes Management Act 2015 (NSW) – whether duty breached – appropriate remedial orders
CIVIL PROCEDURE- Power of Civil and Administrative Tribunal to order mediation – Large number of proceedings - Whether mediation order appropriate and if so on what terms
COSTS – r 38 Civil and Administrative Tribunal Rules 2014 (NSW) – owner the successful party – owner unsuccessful on some defect items – proportionate costs order inappropriate– order each party bear is own costs inappropriate – respondent to pay applicant’s costs as agreed or assessed
LAND LAW — Strata title — Strata managing agent — Inapplicability of s 37 duty of members of strata committee — Jurisdiction of Tribunal — Time to bring claim — Extension of time considerations —Standing of lot owners to claim damages allegedly owed to owners corporation
HOME BUILDING: definition of building claim ; special condition in contract requiring construction of a deck; whether the clause is a contract for the supply of building goods and services, flooring and stairway rectification; whether common property; owner has no standing to bring claim in respect of common property
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rights and obligations of landlords and tenants — tenant’s obligations on vacating the residential premises, including the obligations to leave the premises in the condition required by the tenancy agreement LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rental bonds — Payment and release
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Termination — By tenant — Abandonment of premises — Rent and outgoings — Payment of rent — Rights and obligations of landlords and tenants
BUILDING AND CONSTRUCTION – HOME BUILDING – alleged breaches of statutory warranties – alleged breaches of duty of care – whether breaches of duty sufficiently particularised – whether breaches of warranty already litigated and owners precluded from further litigation – Home Building Act 1989 (NSW) ss 18B, 18C, 18E(2), 18F - Design and Building Practitioners Act 2020 (NSW) s 37
LEASES AND TENANCIES — Rights and obligations of landlords and tenants — Repairs, maintenance and alterations — Obligation to repair and maintain — Quiet enjoyment — Condition reports — Damage to premises — Utility charges — Break clauses
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rights and obligations of landlords and tenants — tenant’s obligations on vacating the residential premises, including the obligations to leave the premises in the condition required by the tenancy agreement LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rental bonds — Payment and release
BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Statutory warranty — Due care and skill BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Major defect – Major element
LAND LAW – strata title – access to records of owners corporation – disqualification of strata committee members – parking on common property – complaints about expenditure of owners corporation – whether applicant lot owner has cause of action – whether lot owner has satisfied Tribunal that orders sought should be made
COSTS – settlement of proceedings – circumstances in which a costs order should be made where proceedings settle – no circumstances justifying departing from the position that costs will not usually be awarded where proceedings are settled. COSTS - special circumstances – whether established
CONSUMER LAW — Consumer guarantees — Supply of services — Guarantee as to due care and skill — Guarantee as to due care and skill — Guarantee as to reasonable time for supply
BUILDING & CONSTRUCTION : Residential building work; building goods and services; whether preliminary work falls within the definition of residential building work; whether the Tribunal has jurisdiction; repudiation; damages; pre judgement interest
BUILDING AND CONSTRUCTION – HOME BUILDING – alleged breach of statutory warranties – successor in title – identity of builder - work order or money order – Home Building Act 1989 (NSW) ss 18B, 18D, 18E, 18G 48MA
LEASES AND TENANCIES- Tenants claim for compensation for breach of tenancy agreement-time limits applicable to applications for compensation-principles applicable to extension of time -claims for economic and non-economic loss
LEASES AND TENANCIES – Social housing – termination order – tenant caused injury to neighbour – termination not mandatory – discretion exercised in favour of termination
LAND LAW – strata title – unit entitlements – unreasonable or mistaken initial allocation – reallocation of unit entitlements – consideration of valuation – method of valuation - exercise of discretion
LAND LAW – Strata Title – Strata Schemes Management Act 2015 (NSW) ss 106, 122, 124 - Right of owners corporation to access to a lot for the purpose of investigating the need for repair and maintenance of common property or to carry out the repair and maintenance of common property – Circumstances in which Tribunal will make order for access LAND LAW – Strata Title – Strata Schemes Management Act 2015 (NSW) s 122(6) – Liability of owners corporation to make good damage caused by exercise of power of entry or arising out of the carrying out of work following entry
RETAIL LEASE – Whether there was a retail lease between the parties – what are the terms of that lease – whether applicant entitled to a writ of possession – claims for arrears of rent and damages assessed LEASES AND TENANCIES – Whether Residential Tenancies Act 2010 (NSW) applies
LAND LAW – Community Title – Neighbourhood Scheme – Dispute resolution – Tribunal has jurisdiction to resolve a dispute concerning the construction and application of an agreement between a neighbourhood association and a lot owner – Circumstances in which it is appropriate to make an order requiring the neighbourhood association to carry out work required under the agreement
LANDLORD AND TENANT – electricity disconnected by Energy Australia when in landlord’s name due to failure to pay bill – Tribunal’s discretion to order a repayment of excessive electricity charges - order to pay rent into Tribunal - breach of quiet enjoyment – access for repairs - circumstances of termination – break fee - rental bond
Judgment of
J Alder, General Member
The Tribunal makes the following amended orders under section 63 of the Civil and Administrative Tribunal Act 2013
Amendments
09/04/2025 – “Huong” in order 2 and 3 and changed to “Hong”.
09/04/2025 - Coversheet – corrected name of Respondent/cross claimant
CONSUMER LAW — Consumer guarantees — Supply of services — Guarantee as to due care and skill CONSUMER LAW — Consumer guarantees — Supply of services — Guarantee as to nature, quality, state or condition CONSUMER LAW — Unconscionable conduct — In connection with goods or services CONSUMER LAW — Unfair contract terms — Consumer contract
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — NSW Civil and Administrative Tribunal — Jurisdiction and power — orders by consent of the parties LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rights and obligations of landlords and tenants — Rent LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rights and obligations of landlords and tenants — Break fee LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rights and obligations of landlords and tenants — The tenant’s obligation to return the rented premises reasonably clean at the end of the tenancy agreement LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rights and obligations of landlords and tenants — The tenant’s obligation to return the rented premises in the same condition as at the start of the tenancy agreement, fair wear and tear excepted LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rights and obligations of landlords and tenants — Fixtures and alterations — The tenant’s obligation to remove its fixtures and repair damage or compensate the landlord
CONSUMER LAW — Consumer guarantees — Supply of services — Guarantee as to due care and skill CONSUMER LAW — Consumer guarantees — Supply of services — Guarantee as to fitness for particular purpose CONSUMER LAW — Consumer guarantees — Supply of services — Guarantee as to reasonable time for supply
BUILDING AND CONSTRUCTION - building claim - claim below $5,000 threshold for building claim treated as consumer claim - internal painting excluded from residential building work - residential building work outside New South Wales not within jurisdiction – no written contract – requirement for licensing and insurance - monies had and received - unconscionable conduct – misleading or deceptive conduct - unfair term in small business contract CONSUMER LAW – breach of contract
BUILDING and CONSTRUCTION – Formation of contract – Defects – Section 48MA of the Home Building Act 1989 - Design and Building Practitioners Act 2020 – Section 37 - Duty to exercise reasonable care
CONSUMER LAW — Consumer guarantees — Supply of goods — Guarantee as to acceptable quality CONSUMER LAW — Consumer guarantees — Supply of goods — Guarantee as to fitness for disclosed purpose
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – jurisdiction – whether work involves residential building work – breach of statutory warranties – whether breach and damage established – whether rectification work necessary and a reasonable course to adopt – payment of invoice – whether respondent entitled to payment
BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Building dispute – where the builder breached express and implied warranties – work order made against the builder
PRACTICE AND PROCEDURE – Property subject to court ordered trust – Property vests in trustees – Landlord has no standing to commence proceedings LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – Claim for post-tenancy charges
LANDLORD AND TENANT – tenant’s liability for water, gas and electricity charges where premises not separately metered – tenant’s agreement to pay utility charges unenforceable if premises not separately metered - time within which to bring claim for recovery of excessive charges – discretion to refund excessive charges - continuing breach - time in which to bring a claim for breach - assessment of damages
CONSUMER CLAIM – defective engine - where a party is both a supplier and a manufacturer - where a party has supplied both goods and services - when does the cause of action first accrue against a supplier for failure to comply with the guarantee as to acceptable quality - when is damage first sustained - did the consumer require the supplier to remedy the failure within a reasonable time - reasonable costs incurred by the consumer in having an engine repaired – foreseeable loss and damage – misleading and deceptive conduct - assessment of damages - failure to mitigate – remoteness
RETAIL LEASE – whether payment of rent invoices waived – no evidence of misleading or deceptive conduct, unconscionability, or breaches of the COVID Regulations by a lessor – no estoppel by silence of lessor – no wrongful termination and re-entry by lessor – all lessee’s causes of action, including a rent reduction claim, dismissed.
Retail Lease – COVID regulations and National Cabinet Mandatory Code of Conduct - claim by lessor for rent arrears and surrender of possession of leased premises – whether lessor renegotiated in good faith rent payable during the prescribed period - whether lessor engaged in unconscionable conduct – whether lease has been validly terminated - liability of the guarantor
LAND LAW – strata title – duties of owners corporation – duty to maintain and repair common property – claims for rectification works and damages by lot owner under Strata Schemes Management Act 2015 (NSW), s 106(5) and 232(1) following breach of duty – reasonably foreseeable losses suffered as a result of a contravention of s 106 – lot owner’s raising of justifiable objections to owners corporation’s proposed repair works not amounting to explicit refusal of access did not mean that losses sustained by the lot owner were not suffered as a result of the owners corporation’s contravention of s 106 – lot owner’s actions in proceeding with works affecting common property without the approval of the owners corporation did have the consequence that subsequent losses were not suffered as a result of the owner corporation’s contravention of s 106
BUILDING and CONSTRUCTION – HOME BUILDING – jurisdiction of Tribunal - whether builder entitled to apply for determination of an owner’s claim – whether such is a building claim – Home Building Act 1989 (NSW) ss 48A, 48I, 49D
HOME BUILDING – variations – whether deemed variation MISLEADING AND DECEPTIVE CONDUCT – whether misrepresentations – loss and damage – loss of opportunity UNFAIR CONTRACT TERMS – standard form contract – special conditions – whether unfair contract terms
LAND LAW – Strata title – Owners corporation - Common Property – Repair and Maintenance – Adequacy of work under section 106 of the Strata Schemes Management Act 2015 - Section 260 of the Strata Schemes Management Act 2015 – Good Faith – Meaning of – Liability of strata committee members - Duty of care of strata managing agent and building manager – Damages – Loss of amenity – Aggravated damages – Removal of Strata committee member - Serious misconduct meaning of – Re-opening of the applicant’s case
LAND LAW - Residential (Land Lease) Communities – increase in site fees – ‘by notice’ method – whether excessive – consumer price index – ss. 73 and S. 74 – increase in outgoings and expenses of respondent – representative application – appropriate relief
LEASES AND TENANCIES - Residential Tenancies Act 2010 (NSW) – obligations of tenant and landlord – obligation to repair – proceedings in relation to compensation and excessive rent – accord and satisfaction
CONTRACTS – building and construction – Home Building Act 1989 (NSW) – damages – liquidated damages – whether work order should be made under s. 48MA of the Home Building Act – damages - out of pocket expenses EVIDENCE – expert evidence – requirement to explain expert’s reasoning process JURISDICTION – whether Tribunal has jurisdiction to relieve against a liquidated damages clause
CONSUMER LAW — Consumer guarantees — Action against supplier— Action against manufacturer CONSUMER LAW — Consumer guarantees — Supply of goods — Guarantee as to acceptable quality.
REAL PROPERTY – STRATA MANAGEMENT – content of owners corporation’s strict duty of maintenance and repair – alleged loss of rent from alleged breach – not established on facts
CONSUMER CLAIM – defective motor vehicle - failure to comply with the guarantee as to acceptable quality - major failure – rejection of motor vehicle – whether rejection period had ended - time in which to bring claim against supplier and manufacturer - when cause of action accrues in relation to supplies of goods – what amount is included in the purchase price of motor vehicle when calculating refund - whether manufacturer is liable to indemnify supplier- appropriate orders where goods subject to third party financing
BUILDING AND CONSTRUCTION – Authority to enter into contracts – Ostensible authority – Ostensible authority not established by use of letterhead or truck bearing company logo AGENCY – Authority of agent – Ostensible authority
BUILDING AND CONSTRUCTION – defective residential building work - contractual terms for external cladding – reasonable and necessary scope of works for rectification of defects found – appropriate remedy – preferred outcome - works order made.
BUILDING AND CONSTRUCTION – Home Building Act – orders not complied with - renewal of proceedings – whether Tribunal considering application for renewal can entertain an application for an extension of time for compliance with the orders CIVIL PROCEDURE – Civil and Administrative Tribunal Act s 41 – extension of time for compliance with orders – applicable principles – whether Tribunal has power to extend time for compliance with orders made by consent `
CIVIL PROCEDURE – Time limits – Application for an extension of time to commence proceedings – Applicable principles – Application in part dismissed LAND LAW - Strata schemes — Appointment of compulsory strata manager — Whether grounds for compulsory appointment are established - Application in part dismissed
CONSUMER CLAIM- meaning of “consumer” in section 79D of the Fair Trading Act 1987- meaning of “natural person” in section 79D of the Fair Trading Act 1987-is a government department a “consumer” for the purposes of section 79D of the Fair Trading Act 1987-jurisdiction of Tribunal to determine application made by a government department as a consumer claim
RESIDENTIAL TENANCIES- Landlord’s obligation to repair- Tenant’s claim for compensation due to Landlords’ failure to repair- Tenant’s claim rent excessive due to reduction or withdrawal of goods, services or facilities.
LAND LAW – Strata title – Common property - Maintenance and repair of common property – Compensation for breach of owners corporation’s obligation to maintain and repair common property – Time limit in s 106(6) of the Strata Schemes Management Act 2015 may not be extended by the Tribunal pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 LAND LAW – Strata title – Common property – Maintenance and repair of common property – Compensation may be awarded for damage to floating timber floors installed without the approval of the owners corporation – No reason to conclude floors would have been required to be removed if not damaged – No reason to conclude approval would not have been given, or that application for approval could have been reasonably refused LAND LAW – Strata title – Owners corporation — Contributions by owners – Tribunal has no jurisdiction to make an order declaring that a lot owner does not owe money to the owners corporation
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – defective building work – implied warranties – contract to perform residential building work – successor in title – claim for breach of implied warranties against a person who did not physically perform the work – major defects – work order or money order.
BUILDING AND CONSTRUCTION – application of s 48O(1)(c) of the Home Building Act 1989 NSW – jurisdiction & discretion - work order to include items of incomplete work – other terms and conditions of work order - third party contractor condition in work order – no structural columns direction in work order - delay damages to owners – no contract price adjustment.
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Repairs — Landlord’s duty - whether repairs are required – whether compensation payable for failure to carry out repairs - Alteration of premises by tenant – whether tenant may instal safety rails - Right to quiet enjoyment – no substantial interference
LAND LAW – Community title – Community scheme – Community association – Where by-laws of community association require the approval of the community association for any alteration to a lot which alters the external appearance of the lot – Extent of the jurisdiction of the Tribunal to review a decision of a community association to refuse approval – Circumstances in which a decision of a community association may be set aside or overruled by the Tribunal.
Home Building – meaning of developer – breach of statutory warranties – s. 3A of the Home Building Act 1989 (NSW) – meaning of residential development.
COSTS — application for costs by the builder – principles – builder awarded costs in its proceedings – owners awarded 50% of costs in their proceedings
Retail lease – damages claim for lost rent and expenses - no rent payable in the first year of the new lease – whether lessor has mitigated the loss – whether lessor entitled to recover GST – whether lease permits entitlement to interest when no demand made for payment made – costs
BUILDING AND CONSTRUCTION – application refused for reopening case after hearing - competing expert evidence as to quantum to rectify defective residential building work – jurisdiction under Home Building Act 1989 (NSW) – whether “major defects” - s 48MA preferred outcome – work order refused - money order made based on an assessment of the reasonable costs for rectification of defective work.
Home building – Reliance on flawed designs or specifications – Clause 40 contract Home building – s.18F defence Home building – Major defects – preferred outcome Home building – Variations paid by homeowners – Homeowners seeking refund – s.48K(3)
CONSUMER LAW – Misleading or deceptive conduct – Consumer guarantees – Supply of services – Guarantee as to due care and skill CONTRACTS – Termination – Repudiation of contract – Uncertainty – Severance of void term
LAND LAW---Strata title---Duty to repair common property---Whether duty breached---Nature and extent of repairs---Determination of appropriate works to comply with duty
Judgment of
G Sarginson, Senior Member
The Notice of Order issue on 01 March 2024 is amended under Section 63 of the Civil and Administrative Tribunal Act 2013, and should read as follows:
CONSUMER LAW: – goods not of acceptable quality–major failure to comply with guarantee – where no notice of rejection given to the supplier– compensation where accessories added to vehicle by the consumer after purchase –
BUILDING AND CONSTRUCTION – Whether contracts validly terminated – assessment of damages for delay, failure to provide occupation certificate, incomplete work and defective work
LAND LAW - Residential tenancies - whether landlord permitted an interference with the peace, comfort or privacy of a tenant - whether all reasonable steps were taken to prevent such an interference by neighbouring tenant - assessment of compensation
PRACTICE AND PROCEDURE – interlocutory application that respondent be permitted to rely on unredacted evidence in circumstances where only redacted evidence given to the applicants – whether non-publication orders should be made