PRACTICE AND PROCEDURE – Transfer of proceedings from Consumer and Commercial Division of NCAT to a court – Sch 4 cl 6 of the Civil and Administrative Tribunal Act 2013 – effect of Sch 4 cl 5 (jurisdiction to determine issues) on power of transfer – relevant considerations in determining whether to transfer proceedings.
LAND LAW – Community title – Community Scheme Duties owed by proprietors – Compliance with by-laws - By-laws requiring consent to the erection of new structures – By-laws requiring landscaping and structures to comply with Design Guidelines – Respondent erected acoustic barrier on boundary of his lot without the consent of the Community Association – Whether barrier erected in breach of by-laws – Whether by-laws harsh, unconscionable or oppressive – Community Land Management Act 2021 s 128 contemplates that, in the interests of preserving the ambience and amenity of the community association, restrictions may be imposed by the by-laws of a community association upon the manner and extent to which lot owners in a community association may utilise their property.
RETAIL LEASE - Whether arrears of rent waived - whether breach of disclosure requirement proved - status of related agreement for electricity costs - assessment of make good claim - running account
LAND LAW – Strata title – civil penalty – contravention of Tribunal orders – s 247A Strata Schemes Management Act 2015 – multiple breaches of orders – amount of penalty – when maximum penalty might be imposed – whether penalty should be paid to applicant owners corporation
Judgment of
M Harrowell, Deputy President
K Rosser, Principal Member
CONTRACTS — Breach of contract — Consequences of breach — Right to damages CONSUMER LAW — Consumer guarantees — Supply of services — Guarantee as to due care and skill
LAND LAW – Strata title – Strata Schemes Management Act 2015 (NSW) – Interim relief – Production of documents – Owners Corporation is not required to disclose to a lot owner with which it is in dispute documents subject to legal professional privilege
LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – whether an agreement is a residential tenancy agreement – whether an agreement for the sale of land that confers a right to occupy – landlord’s right to access residential premises – termination of tenancy – non-payment of rent – whether issue arising in the application was the subject of proceedings before the Supreme Court of NSW on the date the application was made.
LEASES AND TENANCIES – breach of agreement – termination by Tribunal – breach sufficient to justify termination in the circumstances of the case – abandonment - break fee – rental bond – failure to lodge bond – landlord’s obligation to maintain premises in a reasonable state of repair – compensation
LAND LAW – Strata title – Obligations of owners and occupiers – Keeping of pets – Nuisance – Whether barking of dog shown to constitute a nuisance or unreasonable interference with the enjoyment of another lot LAND LAW – Strata title – Owners corporation – Strata committee – Whether respondent should be removed from the strata committee
LAND LAW — Strata schemes — Appointment of compulsory strata manager — Whether grounds for compulsory appointment are established — Which of two proposed compulsory strata managers should be appointed
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rental bonds — Payment and release — Rights and obligations of landlords and tenants — Termination — Grounds for
LAND LAW – Strata title – duty of an Owners Corporation to maintain and keep common property in a good and serviceable state of repair – breach – damages – appointment of compulsory strata manager – removal of an office holder from office
LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – excessive rent due to withdrawal or reduction in goods, services and facilities provided with residential premises
LAND LAW – Strata title – Civil Penalty – contravention of Tribunal order – s 247A Strata Schemes Management Act 2015 – person entitled to receive payment of civil penalty – power of Tribunal to direct to whom penalty should be paid – relevant considerations in deciding recipient of civil penalty COSTS – award of costs in penalty proceedings – costs of strata managing agent appearing before Tribunal – costs of expert report where evidence rejected – lump sum award
LAND LAW – Strata title – Civil Penalty – contravention of Tribunal order – s 247A Strata Schemes Management Act 2015 – power to impose multiple penalties for continuing contraventions – whether there has been a contravention or contraventions
Judgment of
M Harrowell, Deputy President
K Rosser, Principal Member
LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – rights and obligations of landlords and tenants – landlord’s obligation to maintain a rent record – landlord’s obligation to maintain premises in a reasonable state of repair – excessive rent due to withdrawal or reduction in goods, services and facilities provided with residential premises – termination notices – retaliatory notice
CIVIL PROCEDURE — Hearings — Adjournment — Abuse of process – No abuse of abuse established where second application for adjournment CIVIL PROCEDURE — Hearings — Adjournment — Relevant factors — Where there are proceedings on foot in both the Tribunal and a court - Where the Tribunal is deprived of jurisdiction in respect of issues – Adjournment granted
LAND LAW – Strata Title – By-laws – Noise – Installation of floating floor – Interference with the peaceful enjoyment of the owner or occupier of another lot – Amendment of by-law after installation of floating floor – By-law as amended requiring compliance with particular standard – Whether by-law as amended applies to pre-existing floor
CONSUMER LAW — Consumer guarantees — Supply of goods and services — Guarantee as to acceptable quality — Electric mountain bike — Whether bike of acceptable quality
LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – rights and obligations of landlords and tenants – right to quiet enjoyment – reduction or withdrawal of goods, services and facilities provided with the residential premises – access to premises - damages
Costs – dispute complex – arguable - not frivolous, nor vexatious, misconceived, or lacking in substance Jurisdiction – jurisdiction to determine jurisdiction - agreement made in Germany – exclusive law and jurisdiction clause – forum non-conveniens
LEASES AND TENANCIES – residential communities - legislation protecting tenants – outgoing and operating expenses – repairs and improvements to community - whether site fee increase excessive
CONSUMER LAW — Consumer guarantees — Supply of services — Guarantee as to due care and skill — Guarantee as to fitness for a particular purpose — Guarantee as to reasonable time for supply
LAND LAW – Strata title – owners corporation – Accounts and records of owners corporation PRACTICE AND PROCEDURE – Renewal of proceedings – Sch 4 cl 8 to Civil and Administrative Tribunal Act 2013
PRACTICE AND PROCEDURE – Whether ex parte order should be set aside LANDLORD AND TENANT – Termination of residential tenancy agreement – jurisdiction to terminate – meaning of household impacted by COVID-19 pandemic – whether termination order should be made
CIVIL PROCEDURE - Jurisdiction - Application to transfer to Supreme Court - Claim for equitable relief - Relief equivalent to equitable relief available COSTS – Transfer application - Payable forthwith
LAND LAW – Strata title – Civil Penalty – contravention of Tribunal order – s 247A Strata Schemes Management Act 2015 – assessment of penalty – deterrence – relevant considerations – relevance of maximum penalty when assessing appropriate penalty – payment of penalty – whether penalty payable to applicant, the Crown or some other person – power of the Tribunal to direct to whom the penalty is to be paid
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rights and obligations of landlords and tenants — Tenant’s right to quiet enjoyment — Landlord’s obligation to safeguard belongings left behind
LEASES AND TENANCIES---Residential Tenancies Act 2010 (NSW)---repair of premises---breach---remedies---assessment of compensation LEASES AND TENANCIES---Residential Tenancies Act 2010 (NSW)---notice to terminate---whether retaliatory under s 115 Residential Tenancies Act 2010---discretion to set aside
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) - defects in building work - whether a work or a money order should be made in respect of defects
LEASES AND TENANCIES - Residential Tenancies Act 2010 (NSW) – rights and obligations of landlords and tenants – quiet enjoyment – obligation to take all reasonable steps to ensure that neighbouring tenants do not interfere with quiet enjoyment – meaning of “all reasonable steps”
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.
LANDLORD AND TENANT – retaliatory – end of fixed term notice - compensation - failure to repair and maintain – withdrawal and reduction of goods, services and facilities – rent abatement – excessive rent
STRATA SCHEMES – works by lot owner – whether work authorised – whether works caused water penetration STRATA SCHEMES - unreasonable refusal to make a common property rights by-law - failure to provide a written consent to the making of a Special By-Law
LAND LAW — Strata title — By-laws — requirement that by-law not be harsh, unconscionable or oppressive — where by-law prohibits cooking — whether by-law harsh, unconscionable or oppressive
RESIDENTIAL TENANCY – notice of termination – whether retaliatory notice RESIDENTIAL TENANCY – excessive rent - withdrawal by landlord of part of the facilities provided with residential premises
LEASES AND TENANCIES - Residential Tenancies Act 2010 (NSW) – Landlord’s obligation to repair and maintain premises – provide premises fit for habitation - what constitutes an application - extension of time - compensation
CONSUMER LAW – supply of services – guarantee of due care and skill – advice and information – guarantee of fitness for purpose – misleading and deceptive conduct – causation
PRACTICE AND PROCEDURE – application to distribute or transmit sound recording of Tribunal proceedings under Court Security Act 2005 (NSW) – application refused
STRATA SCHEMES – Whether a member of the committee should be removed from office, whether the Owners Corporation has unreasonably refused to make a By-law permitting the installation of solar panels on common property
LEASES AND TENANCIES - Residential Tenancies Act 2010 (NSW) – termination of a residential tenancy agreement – 90-day no grounds termination notice – defences – retaliatory notice LEASES AND TENANCIES – words and phrases - meaning of “social housing provider” – whether agreement is a “social housing tenancy agreement”
CONSUMER LAW — Consumer guarantees — Supply of goods — Guarantee as to acceptable quality — Guarantee as to fitness for purpose — Motor vehicle — Whether vehicle of acceptable quality— Whether vehicle fit for purpose CONSUMER LAW — Consumer guarantees — Supply of services — Guarantee as to due care and skill — Motor vehicle — Whether repairs done with due care and skill
COSTS---Strata Schemes---Application for interim orders dismissed----Whether special circumstances---Whether any special circumstances warrant costs order
HOME BUILDING: where Builder is not licensed to carry out the work – where there is no written contract and no homeowners warranty insurance – claim for repayment of monies paid – defective and incomplete work
REAL PROPERTY – STRATA MANAGEMENT – duty to maintain and repair common property – alterations to common property – common property rights by-law – compulsory strata management – Strata Schemes Management Act 2015 (NSW) ss 90, 106, 108, 126, 143, 149
TENANCY LAW- Residential tenancy agreement-claim for compensation for cleaning and damage-rental bond dispute-meaning of fair wear and tear-assessment of compensation
LAND LAW – Strata title - Owners Corporation – application for installation of air-conditioning condenser unit– whether proposed works unreasonably refused – whether non-compliant with by-law
LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – termination order – hardship to landlord – special circumstances of the case – undue hardship
COSTS---r 38 Civil and Administrative Rules 2014 (NSW)---Dismissal for want of jurisdiction---Principle that costs follow event---No basis to depart from usual principle
CONSUMER LAW — Consumer guarantees — Supply of goods and services — Guarantee as to due care and skill — Guarantee as to acceptable quality — Motor vehicle — Whether repairs done with due care and skill — Whether part of acceptable quality
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – Warranties implied into residential building contracts – Due care and skill - Compliance with specifications – Fitness for purpose – Applicant repudiated contract by refusing respondent access to complete work – Scope of work in contract not fit to achieve the purpose disclosed by the applicant – Applicant had not paid full contract price – No evidence to establish what it would have cost the applicant to achieve the disclosed purpose – Tribunal unable to assess whether respondent entitled to any further payment – Order made that applicant not liable for further payment
COSTS---r 38 Civil and Administrative Tribunal Rules 2014---No special circumstances required---Respondent the successful party---Indemnity costs---No basis for indemnity costs established
BUILDING & CONSTRUCTION; Home Building – breach of statutory warranties – where work involved the conversion to residential use of a commercial space – scope of contract -effect of implied warranties.
CONSUMER LAW – consumer guarantees – supply of goods – guarantee as to acceptable quality – action against manufacturer of goods – when does a cause of action accrue CONSUMER LAW – Fair Trading Act 1987 (NSW) – limitation period
LAND LAW---Strata title---Civil penalty---s 147 Strata Schemes Management Act 2015---Service of notices to comply with by-laws---Whether contravention of notices to comply established---Applicable penalty
STRATA TITLES LAW - strata schemes - common property – refusal to make common property rights by-law – whether refusal unreasonable – challenge to credibility of witnesses – application of rule in Browne v Dunn to proceeding in Tribunal
LAND LAW - Strata title - whether proposed common property rights by-law unreasonably refused LAND LAW – Strata title – whether lot owners made an unauthorised addition to common property requiring a special resolution
LANDLORD AND TENANT- residential parks –– electricity charges – method of charging for a resident’s consumption of electricity – whether resident has been overcharged-whether site fee increase is excessive-fixed increase- otherwise than a fixed method
REAL PROPERTY – BUILDING and CONSTRUCTION – HOME BUILDING – rights on termination of contract – entire contract with progress payments on account – substantial failure of consideration - refund of monies paid
COSTS – Rule 38(2) applies - multiple and interrelated issues in Lessee’s application and in Lessors’ cross application against Owners Corporation - varying degrees of success in both applications – the “event” is determined by the substance and reality of the outcome of the proceeding - proper exercise of discretion as to costs
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW), s 18B – Statutory warranties – Respondent undertaking supervision of residential building work but not pursuant to contract – Not subject to implied warranties CONTRACTS – Formation of contract – Contract not wholly in writing – Consideration of surrounding circumstances – Whether contract required supply only or supply and installation CONSUMER LAW – Australian Consumer Law (NSW), s 3 – “consumer” – Whether goods acquired as a consumer – Whether pre-fabricated formwork panels for residential building are “goods … of a kind ordinarily acquired for personal, domestic or household use or consumption” – Whether products acquired for the purpose of being incorporated into houses being constructed for sale at a profit are “acquired … for the purpose of using them up or transforming them … in the course of a process of production or manufacture” CONSUMER LAW – Misleading and deceptive conduct – Representations as to future matters – Reasonable grounds RESTITUTION – Ineffective transactions – Restitution of money paid – Where purchase price was paid in full but only half of the goods the subject of the contract were delivered – Purchaser asserted goods were defective and balance of goods not delivered – Contract rescinded by purchaser or abandoned by parties – Purchaser entitled to restitution of the price paid for the goods not delivered CONSUMER LAW – Fair Trading Act 1987 (NSW), s 79S – Jurisdiction of the Civil and Administrative Tribunal with respect to consumer claims – Whether the increase by regulation of the Tribunal’s jurisdiction in respect of consumer claims applies in proceedings commenced before the increase became effective – Increased jurisdiction was applicable to proceedings already on foot at the time of the amendment STATUTORY INTERPRETATION – Principle of legality – Retrospectivity – Interpretation Act 1987 (NSW), s 30 – Increase of jurisdiction of Tribunal with respect to consumer claims in existing proceedings does not affect any right, privilege, obligation or liability acquired, accrued or incurred under the pre-existing legislation WORDS AND PHRASES – “consumer”, “goods of a kind ordinarily acquired for the purpose of personal, domestic or household use or consumptions”, “using [goods] up or transforming them … in the course of a process of production or manufacture”
CORPORATIONS — Winding up — Proceedings against company — Stay of proceedings – Leave of Court CORPORATIONS — Voluntary administration — Legal proceedings — Moratorium on legal proceedings against company under administration
BUILDING AND CONSTRUCTION - Whether costs plus contract replaced by fixed price contract – validity of termination – finding of mutual termination ESTOPPEL - Promissory estoppel - estoppel by convention BUILDING AND CONSTRUCTION - Cost of completion - alleged overcharging - storage costs
JURISDICTION- Constitutional law- jurisdiction of Tribunal to determine application- does claim give rise to exercise of federal jurisdiction- whether statutory corporation carrying on business- is Tribunal exercising judicial power-is statutory corporation subject to State laws-meaning of federal matter
CONSUMER LAW — Consumer guarantees — Supply of goods — Guarantee as to acceptable quality — Motor vehicle — Whether vehicle of acceptable quality — Whether major failure — Rust
CONSUMER LAW-Consumer guarantees under Australian Consumer Law-whether motor vehicle of acceptable quality-test of acceptable quality-whether breach of consumer guarantee established-misleading and deceptive conduct
LAND LAW---Strata scheme---s 237 Strata Schemes Management Act 2015 (NSW)---Appointment of compulsory strata manager---Where compulsory strata manger already appointed---Whether circumstances justify a further appointment of compulsory strata manager---Whether circumstances justify extension of the existing order.
LAND LAW – Strata title – common property – maintenance of common property – breach – damages – whether damages claim is out of time – whether compliance with duty to maintain the common property in good and serviceable repair has been deferred
CIVIL PROCEDURE — Time — Extension of time – commencement of proceedings RETIREMENT VILLAGES — Retirement Villages Act 1999 (NSW) – whether the operator contravened its obligation to use its best endeavours to ensure that each resident lives in an environment free from harassment and intimidation - whether there was an unlawful variation in the provision of a services by the operator – whether the operator failed to provide required information in a proposed annual budget
CONSUMER LAW – consumer guarantees – supply of goods – guarantee as to acceptable quality CONSUMER LAW – consumer guarantees – supply of services – guarantee as to fitness for a particular purpose CONSUMER LAW – general protections – misleading and deceptive conduct
Strata Schemes Management Act – validity of by-law – harsh, unconscionable or oppressive – inconsistent with legislation – without power – severability
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – statutory warranties – due care and skill – materials – limitation period – minor defects – preferred outcome
LAND LAW---Strata title---Duty of owners corporation to repair common property---Breach---Damages---Limitation period---Knowledge of loss---Whether applicant within limitation period---s 106 (6) Strata Schemes Management Act 2015 (NSW) LAND LAW---Strata title---Compulsory appointment of strata manager---s 237 Strata Schemes Management Act 2015 (NSW)---Principles applicable LIMITATION OF ACTIONS---Strata title--Statutory cause of action---Failure to repair common property---Knowledge of loss---s 106 (6) Strata Schemes Management Act 2015 (NSW)
LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – rights and obligations of landlords and tenants – use of premises for an illegal purpose – whether undue hardship
COSTS – Calderbank letters – whether offer unreasonably refused – consideration of circumstances at time when offer made COSTS – Sanderson order – whether to order the unsuccessful respondent pay the costs of the successful respondent – whether successful respondent reasonably joined – consideration of conduct of unsuccessful respondent
BUILDING AND CONSTRUCTION - Whether contract between owner and individual or company - defective work - whether to make work order or money order - reasonable cost of rectification
Retail Leases Act 1994 – unauthorised work by lessee - damage to common property – whether the lease permits the lessor to access the premises to comply with a Tribunal order made under the Strata Schemes Management Act 2015 requiring restoration of common property – whether the lease otherwise permits the lessor to access the premises to restore common property - whether lessee is liable for lessor’s legal costs incurred in defending proceedings by the owners corporation
LEASES AND TENANCIES — Retail Leases Act 1994 (NSW) — Retail and Other Commercial Leases (COVID-19) Regulation 2022 — Claim by landlords for unpaid rent — Whether tenant “impacted lessee” for purposes of Regulation — “Prescribed action” – Whether landlords had entered into negotiations “in good faith” – Rent relief in accordance with the National Cabinet Mandatory Code of Conduct — SME Commercial Leasing Principles during COVID-19 — Parties failed to agree terms on which the tenant would be granted relief — Whether Tribunal has jurisdiction to determine terms of relief
COSTS – exercise of discretion to award costs where proceeding has settled without a hearing on the merits – defect in common property – repair of common property
CONSUMER LAW – Australian consumer law – consumer guarantee that product must be of acceptable quality – claim against manufacturer – assessment of damages
LAND LAW---Dividing fence---Dividing Fences Act 1994 (NSW)---Time to commence Tribunal proceedings---Whether time should be extended----Sufficient dividing fence---Replacement fence---Type and position of replacement fence---Removal of vegetation to construct replacement fence---Removal of trees
LEASES AND TENANCIES - Residential Tenancies Act 2010 (NSW) – rights and obligations of tenants and landlords – whether rent is excessive due the reduction or withdrawal of goods, services, and facilities by the landlord
CONSUMER LAW — Consumer guarantees — Supply of services — Guarantee as to due care and skill CONSUMER LAW — Misleading or deceptive conduct — Representations as to future matters CONTRACTS — Construction and interpretation — Parol evidence rule — Subsequent conduct
STRATA TITLES LAW — strata schemes — order sought for appointment of compulsory strata managing agent - maintenance of common property - order sought for damages for breach of statutory duty to maintain common property
LEASES AND TENANCIES – Termination and possession – breach of residential tenancy agreement - conviction for drug supply – small quantity – personal circumstances – Section 87 -whether the breach in the circumstances - is sufficient to justify termination – Discretion to terminate – Section 154E
HOME BUILDING: Request to transfer proceedings to a court, where proceedings have been commenced by one party in the District Court after the Tribunal proceedings are well advanced, application refused
LAND LAW – Strata titles – Section 106(6) of the Strata Schemes Management Act 2015 – Applicability of s41 of the Civil and Administrative Tribunal Act 2013 to s106(6)
BUILDING AND CONSTRUCTION - Home building - limitation period - s 48K(8) Home Building Act 1989 - whether to transfer proceedings to the District Court
LAND LAW---Strata title---Failure to keep and maintain common property in a state of good repair---Water ingress into Lot---Damage to Lot property---Whether damage reasonably foreseeable---Failure to mitigate
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – Defective building work – Variation of contract – whether exchange of emails satisfied requirement for variation to be in writing and signed – expert evidence.
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) - defects in building work – whether a work or a money order should be made in respect of defects in building work - assessment of the quantum of damages
LEASES AND TENANCIES---Residential Tenancies Act 2010 (NSW)---Social housing---Termination for non-payment of rent---Ex parte decision---Set aside application---Extension of time---Whether time extended---Whether decision should be set aside LEASES AND TENANCIES---Residential Tenancies Act 2010 (NSW)---Social housing---State of repair of premises---Tenants application for rent reduction and compensation---Dismissal of proceedings for non-appearance---Reinstatement of proceedings---Extension of time---Whether time should be extended and proceedings be reinstated---s 55 (2) Civil and Administrative Tribunal Act 2013 (NSW)
CONSUMER CLAIM: Where applicant alleges that respondents made a misleading representation, Where the applicant alleges horse has ridden vices not disclosed to her, and is not fit for the purpose disclosed
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Quiet enjoyment LEASES AND TENANCIES — NSW Civil and Administrative Tribunal — Jurisdiction and power
LEASES AND TENANCIES---Residential Tenancies Act 2010 (NSW)---Repair of premises---Compensation payable to tenant---Failure to pay rent by tenant---Termination for non-payment of rent---Whether notice to terminate retaliatory