LEASES – Retail Leases Act 1994 (NSW) – Notice of termination of lease pursuant to s 36(1)(c) – compensation for breach under s34(1)(d) and abatement of rent under s 36(1)(b) – whether the Retail Leases Act is beneficial legislation.
REAL PROPERTY – STRATA MANAGEMENT – owners corporation’s strict duty to maintain and repair common property and compensate for damage to lot property -– compulsory strata manager – lot owners’ consent to common property rights by-law - Strata Schemes Management Act 2015 (NSW) ss 106, 149, 232, 237
LAND LAW – Strata title –the Tribunal has jurisdiction to make an order pursuant to s 232(1)(f) of the Strata Schemes Management Act 2015 for the respondent to install a ramp and/or a handrail at the front entrance of the building or a platform lift at the rear entrance of the building.
BUILDING and CONSTRUCTION – HOME BUILDING – attempted increase of fixed price contract – absence of consideration – extended concept of consideration – economic duress – alleged misrepresentation, deceit and equitable and common law estoppel – jurisdiction on equitable claims
CONTRACTS - Repudiation - What constitutes repudiation - Insistence on performance of contract on incorrect interpretation of terms - Purported price increase CONTRACTS - Repudiation - Acceptance of repudiation - What constitutes acceptance - Termination of contract RESTITUTION - Ineffective transactions - Total failure of consideration - Recovery of deposit paid under unenforceable building contract
LAND LAW — Strata title — Strata Schemes Management Act 2015 — Whether resolution valid — Statutory interpretation — Meaning of sustainability infrastructure resolution
LANDLORD AND TENANT – company title – House Rules - termination - breach of tenancy agreement – unauthorised subletting – holiday and short term rental - keeping of pets - whether breach is sufficient to justify termination – whether unreasonable withholding of consent to partially sublet – whether a tenant has made a valid application for a landlord’s consent to keep a pet under s 73C of the Residential Tenancies Act (NSW) 2010 if the application has not been made by all co-tenants – standing of tenants to bring an application at the Tribunal for consent to keep a pet if the landlord has not given a written response and the 21 day period has not expired - domestic violence - whether refusal to allow pets is based on an applicable ground – joinder of applicant
LAND LAW — Strata title — By-laws — Validity — Short-term rental accommodation — Inconsistency with Strata Schemes Management Act 2015 (NSW) — Whether by-law harsh, unconscionable or oppressive — Requirement for bond and administration fees — Recovery of costs as debt — Severance LAND LAW — Strata title — Strata managing agent — Compulsory appointment of strata managing agent — Dysfunction — Failure to follow internal enforcement policy — Scheme functioning satisfactorily
REAL PROPERTY – STRATA MANAGEMENT – incidence and content of owners corporation’s strict duty to maintain and repair common property – meaning of maintain and repair - lot owner’s claim for alleged damage from alleged breach of duty and reimbursement for works to common property – owners corporation’s strict liability for independent contractors - approval of works – by-law inconsistent with duty – Strata Schemes Management Act 2015 (NSW) ss 106, 108-110, 127, 170
REAL PROPERTY – STRATA MANAGEMENT – owners corporation’s strict duty to maintain and repair common property - lot owner’s claim for alleged damage from alleged breach of duty being primarily lost rental - Strata Schemes Management Act 2015 (NSW) ss 106, 232
LAND LAW – Neighbourhood scheme – Reasonableness of By-Laws – Keeping of Animals – Interpretation of s 129A of the Community Land Management Act – Exercise of Tribunal’s discretion to make an order enforcing a by-law
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 COSTS – costs application and submission not provided through registry error – no order as to costs as a result – jurisdiction on costs when error discovered and corrected – Calderbank offer – open offer as integer in assessing proceedings
LEASES AND TENANCIES – conflicting ingoing condition reports - break fee – circumstances of termination – abandonment - rental bond – discretion to award compensation – misappropriation of rent
STATUTORY INTERPRETATION – meaning of “change in permitted land use” in s 236(1)(c) of the Strata Schemes Management Act 2015 LAND LAW - strata title - whether common property rights by-law unreasonably refused - adequacy of reasons - consideration of applicable principles
LEASES AND TENANCIES-Residential Tenancies Act 2010 -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 – Breach of Tenant’s Quiet Enjoyment-Tenant’s claim for non-economic loss-Assessment of damages for non-economic loss
LEASES AND TENANCIES — Retail leases — NSW Civil and Administrative Tribunal — Jurisdiction and power — Interim orders — Question to be tried — Balance of convenience — Undertaking as to damages
BUILDING AND CONSTRUCTION – residential building work in a strata scheme – home building claim on remitter from Appeal Panel – breaches of statutory warranties in Home Building Act 1989 - preliminary issues in redetermination proceeding – work order (s 48MA) or money order (s 48O(1)(a)) – whether bathroom falls are defective – proper interpretation of AS 3740-2010 – whether mandatory falls ratios or performance based criteria apply
RESIDENTIAL TENANCY - breach of residential tenancy agreement by landlord - compensation to tenants - reduction or withdrawal by landlord of goods, services or facilities - rent payable excessive - premises partly uninhabitable - break lease fee - damage to premises by tenant .
CONSUMER LAW — Consumer guarantees — Supply of services — Guarantee as to due care and skill CONSUMER LAW — False or misleading representations — Representations about goods or services
PRACTICE AND PROCEDURE – Application for stay or summary dismissal of proceedings because a class action raising the same or similar issues has been commenced in the Federal Court – Opt out period yet to commence – Not an abuse of process to maintain separate proceedings before the end of the opt out period in the Federal Court proceedings – stay refused
BUILDING & CONSTRUCTION – whether application to amend defence ought to be permitted after determination of preliminary issues and after settlement of part of the proceedings
BUILDING AND CONSTRUCTION – residential building work in a strata scheme – home building claim on remitter from Appeal Panel – breaches of statutory warranties in Home Building Act 1989 - preliminary issues in redetermination proceeding – work order (s 48MA) or money order (s 48O(1)(a)) – whether bathroom falls are defective – proper interpretation of AS 3740-2010 – whether mandatory falls ratios or performance based criteria apply
BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Major defect — Statutory warranty — Due care and skill — Fit for purpose BUILDING AND CONSTRUCTION — Negligence — Duty of care — Design
CIVIL PROCEDURE — Court administration — Overriding purpose — Just, quick and cheap resolution CIVIL PROCEDURE — Jurisdiction — Monetary limits CIVIL PROCEDURE — Jurisdiction — Transfers to and from other courts — District and Local Courts LEASES AND TENANCIES — Retail leases — NSW Civil and Administrative Tribunal — Jurisdiction and power
BUILDING AND CONSTRUCTION – Renewal Application – Money order in substitution for previous work order – Builder’s request for a further work order refused
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 – special circumstances – basis for exercise of discretion – ordinary or indemnity basis – Calderbank letter – Civil and Administrative Tribunal Act 2013 (NSW) s 60 - Strata Schemes Management Act 2015 (NSW) ss 104, 232
LEASES AND TENANCIES — agriculture — Agricultural Tenancies Act 1990 (NSW) — compensation — claim for deterioration of farm — compensation payable is amount representing decrease in value of the farm — whether claim for compensation based on cost of rectification without evidence of decrease in value of the farm can succeed LEASES AND TENANCIES — agriculture — Agricultural Tenancies Act 1990 (NSW) — improvements — claim for improvements by tenant — compensation payable is value of the improvement to an incoming tenant — whether claim for compensation based on expenditure incurred without evidence of value to an incoming tenant can succeed LEASES AND TENANCIES — default and termination — relief against forfeiture — breach of covenant to repair —whether to grant relief against forfeiture — where breach capable of remedy and tenant intended to make good
REAL PROPERTY – STRATA MANAGEMENT – removal of building manager – disclosure of interests – connected persons – Strata Schemes Management Act 2015 (NSW) ss 7, 71, 72, Strata Schemes Management Regulation 2016 (NSW) reg 62 COSTS – ordinary costs rules – costs application out of time – delinquent conduct of or for costs applicant in proceedings
CONSUMER LAW — Jurisdiction — NSW Civil and Administrative Tribunal Consumer and Commercial Division — Jurisdiction and powers CONSUMER LAW — Liability of manufacturers UNREPRESENTED LITIGANTS – Use of Generative AI – Hallucinated case reference – irrelevant case references
BUILDING AND CONSTRUCTION – Strata Scheme – Building Defects – expert evidence that the cost of rectifying the Defects exceeds $500,000 - application to transfer to the District Court granted – application for a work order refused
CONSUMER LAW — Application of the Australian Consumer Law — Australian Consumer Law (NSW) CONSUMER LAW — Jurisdiction — NSW Civil and Administrative Tribunal Consumer and Commercial Division CONSUMER LAW — Enforcement and remedies — Action for damages
CONSUMER LAW — Consumer guarantees — supply of services — guarantee as to acceptable quality — guarantee as to due care and skill – assessment of damages
CIVIL PROCEDURE – Civil and Administrative Tribunal – Summons to give evidence – Application to set aside – Whether the applicants could establish a legitimate forensic purpose
Costs – whether costs should follow the event – does the successful party’s delay in raising a foundational point that goes to the Tribunal’s jurisdiction amount to disentitling conduct – whether the failure to accept a Calderbank offer was reasonable
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rent — Excessive rent increase — assessment by reference to market rent for comparable premises — percentage increase not determinative — tenant’s capacity to pay irrelevant — Tribunal power to set lower rent STATUTORY INTERPRETATION — Residential Tenancies Act 2010 (NSW), section 44 — meaning of “excessive” — Focus on resulting rent, not size of increase — application of section 44(5) factors EVIDENCE — Comparable rentals — Weight given to orientation, amenities, parking, condition of premises.
CIVIL PROCEDURE — Parties — Joinder — Of applicant — Joinder of contract party as applicant in proceedings to enforce statutory warranties — Whether joinder of party as applicant is necessary or proper BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Statutory warranty — Proceedings for breach — Joinder of applicant — Consideration of limitations issues — Limitations issues left for the Tribunal to determine at the final hearing CIVIL PROCEDURE — Summary disposal — Application for summary dismissal of proceedings on grounds claim is frivolous or vexatious or otherwise misconceived or lacking in substance — Application adjourned
BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Building dispute — Rectification order BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Statutory warranty — Proceedings for breach BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — s 48MA — Work order
BUILDING AND CONSTRUCTION — Contract — Implied terms — Statutory warranties BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Statutory warranty BUILDING AND CONSTRUCTION — Contract — Defects — Work order BUILDING AND CONSTRUCTION — Contract — Damages — Delay BUILDING AND CONSTRUCTION — Contract — Liquidated damages
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