Adhami v The Owners – Strata Plan No 85271

Decision date: 30 June 2026

Jurisdiction: Consumer and Commercial Division

Before: JA Rose, General Member

Decision: (1) The application is dismissed.
(2) The question of costs is reserved.
(3) If either party seeks an order for costs, that party must file and serve any application for costs, together with any supporting evidence and submissions (not to exceed 5 pages), within 14 days of the date of these reasons.
(4) The other party must file and serve any evidence and submissions in response (not to exceed 5 pages) within 28 days of the date of these reasons.
(5) Any reply evidence and submissions (not to exceed 3 pages) must be filed and served within 35 days of the date of these reasons.
(6) The parties’ submissions on costs are to address the operation of s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) in relation to any application for costs, and whether the question of costs can be determined on the papers without an oral hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

Catchwords: LAND LAW – strata title – s 106 Strata Schemes Management Act 2015 (NSW) – water ingress – damages – limitation period – continuing breach – whether claim statute‑barred – Tezel applied
LAND LAW – strata title – work orders – lot property vs common property – no power to order repairs to lot property – absence of sufficiently particularised scope – McDaid applied
CIVIL PROCEDURE – evidence – failure to prove loss

Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Strata Schemes Management Act 1996 (NSW)
Strata Schemes Management Act 2015 (NSW)

Cases Cited: Adhami v The Owners – Strata Plan No. 85271 [2025] NSWCATAP 145
John Goubran & Associates Pty Ltd ACN 070 974 819 v The Owners – Strata Plan 57150 [2026] NSWDC 9
Lin v Owners – Strata Plan No 50276 (2004) 11 BPR 21,463
Ridis v Strata Plan 10308 (2005) 63 NSWLR 449
Rodway v R [1990] HCA 19; (1990) 169 CLR 515 Maxwell v. Murphy [1957] HCA 7; (1957) 96 CLR 261
Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157
The Owners – Strata Plan No 74232 v Tezel [2023] NSWCA 35
The Owners Strata Plan 50276 v Thoo [2013] NSWCA 270
The Proprietors of Strata Plan No 159 v Blake [1986] NSW Titles Cases 50,650
The Proprietors of Strata Plan No 30234 v Margiz Pty Ltd (1993) 32 NSWLR 294
The Proprietors of Strata Plan No 6522 v Furney (1976) 1 NSWLR 412

Category: Principal judgment

Parties: Mohammad Reza Adhami (Applicant)
The Owners - Strata Plan 85271 (Respondent)

Representation: Applicant appeared in person
Counsel:
Mr Pokoney, instructed by Gilchrist Connell, solicitors (for The Owners - Strata Plan 85271)

File Number(s): 2024/00331150

REASONS FOR DECISION

Introduction

1. This application under the Strata Schemes Management Act 2015 (NSW) (SSM Act) was originally determined in January 2025. After a successful appeal of that decision in June 2025, it was remitted to be reheard: Adhami v The Owners – Strata Plan No. 85271 [2025] NSWCATAP 145.

2. The applicant, Mr Adhami, is the owner of a lot (The Applicant**’**s lot) in the strata plan, at Gordon NSW. The respondent is the owners corporation for that strata plan under the SSM Act. The application sought general orders to settle a dispute between the parties under s 232 of the SSM Act, and asserted that:

In February 2022 our apartment [was] impacted by ingress of water from ceiling and wall, water penetrating under timber flooring and creating mould on walls and ceiling, after hundreds of correspondences Strata manager failed to rectify the damages.

3. In presenting his claim at the rehearing, the applicant asserted that two principal issues arose: failure to repair waterproofing of common property parts of the balcony of the lot above his apartment (the upstairs lot), in breach of the owners corporation’s duty under s 106(1) of the SSM Act, and insurance issues. He sought three orders against the owners corporation:

4. a work order to rectify damage arising from the waterproofing issues;

5. alternatively, compensation of $50,500, covering the cost of repairs to The Applicant’s lot and consequential expenses associated with removalist and storage fees and accommodation while repairs are undertaken; and

6. a “cost protection order” under s 60 (3) of the Civil and Administration Tribunal Act 2013 (NSW) (CAT Act), relying on his status as a self-represented pensioner and the complexity of the matter.

7. The owners corporation defends the claim on the following grounds:

8. the allegation of breach of duty under s 106 is denied;

9. the compensation claim is statute-barred, as the relevant loss was first reported in 2017, and is outside the limitation period under s 106(5) of the SSM Act;

10. there is insufficient evidence to support a work order or to establish an entitlement to compensation; and

11. the proposed work order relates wholly to lot property inside The Applicant’s lot and does not seek repairs to common property.

12. While he maintains his claims, the applicant accepts that his request for a work order is confined to damage to lot property, and does not extend to repairs to common property.

13. For the reasons that follow, the application is dismissed.

The original decision and the appeal decision

7. The original decision dismissed the application, finding that the claim was brought more than two years after the applicant first became aware of the loss and was therefore out of time under s 106(6) of the SSM Act. On that basis, the original Tribunal concluded it lacked jurisdiction to determine the application.

8. On appeal, the Appeal Panel held that the Tribunal had made an error of law by applying the two‑year limitation period to the entirety of the claim. The Panel determined that the limitation period in s 106(6) applies only to claims for damages under s 106(5), and does not limit an owner’s ability to seek orders requiring an owners corporation to carry out repairs or maintenance. As the application had not been determined on its merits, the appeal was upheld and the matter remitted for rehearing according to law.

The rehearing

9. The applicant appeared in person at the rehearing while the owners corporation was represented by Mr Pokoney of counsel, instructed by Gilchrist Connell, solicitors.

10. The hearing proceeded in the usual manner. After brief opening statements, the parties were given a reasonable opportunity to present their evidence, cross-examine witnesses, and make submissions to the Tribunal.

11. As the moving party, the applicant bears the onus of proving his claim on the balance of probabilities. The owners corporation bears the onus of proving any affirmative defence to the same standard.

The evidence

The applicant’s evidence

12. The applicant relied on three bundles of documents lodged with the Tribunal on 7 October 2025 (exhibit A1), 11 November 2025 (exhibit A2), and 3 December 2025 (exhibit A3), together with two further bundles tendered at the hearing (exhibits A4 and A5). The owners corporation did not object to the admission of those documents.

13. None of those bundles contained witness statements, and the applicant did not rely on any sworn oral evidence at the hearing.

14. Exhibit A5 includes two letters marked “without prejudice save as to costs”, one from each party. Those communications appear to have been made in the course of genuine settlement negotiations. In those circumstances, the Tribunal considers them privileged and inadmissible for the purpose of determining the substantive issues in dispute. Accordingly, no weight has been given to those documents in determining this application.

The owners corporation’s evidence

15. The owners corporation relied on a bundle of documents lodged on 29 October 2025 (exhibit R1), which included a witness statement of Ryan Madden, strata manager, dated 28 October 2025. The applicant objected to the statement on relevance grounds. The objection was overruled, and both parties were given the opportunity to make submissions as to the weight to be afforded to Mr Madden’s evidence.

16. Mr Madden gave sworn oral testimony and was cross-examined by the applicant.

17. The applicant challenged the accuracy and reliability of aspects of Mr Madden’s evidence and relied on earlier communications from former strata management personnel. The Tribunal has had regard to those submissions in assessing the weight to be afforded to Mr Madden’s evidence.

Jurisdiction

18. Subject to the limitation issue under s 106(5), the Tribunal has jurisdiction to hear and determine the claim under s 232 of the SSM Act. As a lot owner, the applicant is an “interested person” for the purpose of that section and the matters raised fall within s 232(1).

Findings of fact

19. The strata scheme comprises a multi-storey brick veneer/concrete slab apartment building that was constructed in about 2012.

20. Precise Property currently manages the scheme. As of 28 October 2025 (the date of his statement), Mr Madden had been strata manager for the owners corporation for about 6 months. The scheme was previously managed by Strata One.

21. The applicant is the owner of The Applicant’s lot, which sits directly below the upstairs lot in the building. The applicant has owned The Applicant’s lot since about 2016, which was tenanted until around January 2017, when the applicant moved into the lot.

22. On 27 January 2017, the applicant notified Strata One that ceiling paint was flaking in The Applicant’s lot, stating that it was “probably … due to roof waterproofing failure” together with “vertical and horizontal cracks on the walls that needs to be inspected and corrected”.

23. On 12 June 2017, the applicant notified Strata One that “the ceiling in our living room has got discolouration”, adding:

“As I originally mentioned the flaking and discolouration is possibly due to roof waterproofing problems. These recently new patches of discolouration occurred just after recent rain.”

He enclosed four photographs to identify the patches he was referring to.

24. On 12 February 2020, the applicant reported flooding in Basement 3 to Strata One, including damage to personal belongings stored in his storage area. The applicant indicated at that time that he may seek compensation for those losses.

25. On about 1 March 2022 the applicant notified Strata One of water leakage through the bedroom and bathroom wall of The Applicant’s lot. On 3 March 2022, a plumber engaged by the owners corporation attended The Applicant’s lot and identified a leak coming from the upstairs lot, above The Applicant’s lot. They recorded this finding in their tax invoice, noting:

“Plumbers found leak was coming from the above unit at [the upstairs lot] the balcony spitter (see attached image)

This is going directly down to the exhaust fan from [The Applicant’s lot].

Clean balcony drains from [the upstairs lot] … Further work will be required on [the upstairs lot’s] spitters to either … extend the spitter drain [or] block and move spitter to prevent water from going down the wall and into [The Applicant’s lot].”

26. On 30 March 2022, the applicant sent a further email message to Precise Property, referring to “wall painting is peeling off” and “buckling of floorboards”. He sent a further email to Strata One on 6 April 2022, reporting that “the water leakage has caused a lot of damage to our floor boards and wall painting starting to pull off”.

27. On 21 April 2022, Strata One sent an email to the applicant requesting recent photographs of the damaged floor boards for an insurance claim and indicating that they had approved the plumber’s quote for the repair work and had asked when the plumbers could attend. On 29 April 2022 they advised that the plumber would be attending the upstairs lot to undertake repairs the following Monday, 2 May.

28. On 8 June, the owners corporation’s annual general meeting resolved to engage an engineer to assess flooding in the basements and loft pits and recommend a solution to prevent flooding and damage to the lofts from occurring. A work order for that assessment work was issued at the end of that month.

29. On 5 July 2022, the applicant reported to Strata One that the plumbers had extended the overflow pipe by gluing a 300-400 mm long pipe to the existing pipe, and opining that the source of the water leak appears to be beyond water leaking from that pipe, continuing:

We just noticed the water is leaking from our living room ceiling as well.

The place is not liveable anymore and utmost urgent action needs to be taken ,,,

30. In July 2022, the owners corporation obtained reports and quotations addressing the water ingress and resulting internal damage to The Applicant’s lot. A builder’s report identified damage to ceilings, walls and flooring and quoted repair works at approximately $21,880.98, including allowance for temporary accommodation during repairs.

31. A separate plumber engaged by the insurer identified water damage to internal walls and concluded that the most probable cause was failure of the waterproofing to the balcony of the upstairs lot, recommending attendance by a remedial builder or waterproofing contractor.

32. A further building report obtained by the insurer confirmed rainwater ingress affecting internal ceiling linings, and recommended further investigation to determine the precise cause.

33. On 9 August 2022, the insurer obtained a further quotation of $23,286.12 to remediate the internal water damage to The Applicant’s lot.

34. On 9 August 2022, the owners corporation’s insurer obtained a quote from a builder to remediate the internal water damage to The Applicant’s lot, for $23,286.12.

35. On 7 October 2022, the owners corporation received a report from its remedial engineer, Partridge Engineering, addressing water ingress into The Applicant’s lot and flooding of the car park basement and lift shaft. The report observed that there was significant water damage in The Applicant’s lot due to ingress in the eastern wall of bedroom 1 and the adjoining hallway, with water damage, staining and bubbling paint also present. Very high moisture readings were recorded. It also observed that mould was present in the ceiling of bedroom 2, although the wall and ceiling were not wet at the time of inspection. The report also observed that there were signs of waterproof membrane failure to the balcony, landing and external stairs of the upstairs lot, with water staining on the external slab edges and cracking of greater than 3 mm observed to the wall at the junction between the balcony and the stair landing slabs. There was also a cracked and bulging tile on the lower courtyard of the upstairs lot and cracked and displaced brickwork in the wall adjacent to the kitchen exhaust.

36. The report concluded that the waterproof membranes on the balcony, landing, stairs and courtyard of the upstairs lot had all failed, which was the source of water ingress into The Applicant’s lot, adding that the worst-affected locations corresponded with the wall at the junction between the balcony and stair landing slabs. It recommended installing new waterproof membranes to those parts of the upstairs lot, with repairs to the consequential damage to The Applicant’s lot to follow.

37. In around January 2023, the same remedial engineers provided tender documentation for the owners corporation to submit to building contractors, to seek tenders and choose a builder to undertake the repair works. A tender addendum was issued in late February 2023.

38. In around March 2023, a contractor (“Renfay”) was selected to undertake the waterproofing works. In a meeting held on 3 April 2023, the strata committee agreed to prioritise works by focussing on the upstairs lot balcony and basement recommendations, instructing Strata One to “contact Partridge [the engineers] to reduce scope to only include essential items for [the upstairs lot] balcony works”.

39. Between June and December 2023, the owners corporation obtained quotes and scopes of work for a range of additional works, including waterproofing works to the entire roof-top area of the building; additional stormwater pump-out lines in the basement; waterproofing works to the rooftop terrace of the upstairs lot, remediation of the upstairs lot’s balcony waterproofing, internal water damage repair works for the Applicant’s lot and remediation of the waterproofing seals in the Applicant’s lot’s shower.

40. A building works contract with Renfay was ultimately signed on 24 March 2024.

41. On 29 May 2024, Renfay invoiced the owners corporation for works completed at the upstairs lot, including works to waterproof the balcony, lower courtyard, stairs and landing. On 21 June 2024, the owners corporation obtained a certificate of compliance from JMB Waterproofing Solutions, certifying that all works on the terrace had been completed in accordance with the manufacturer’s specifications.

42. On 9 August 2024, Partridge issued a statement of practical completion, certifying that all works had been completed in accordance with the contract between the owners corporation, Renfay and Partridge.

43. On 30 August 2024, Peter Brisbane from Strata One wrote to the applicant, stating:

Whilst we appreciate your frustration, the owners corporation has prioritised remedial works to stop water penetration into you apartment, with the final step in the process is your internal unit works. …

44. The applicant subsequently filed his application with the Tribunal on 6 September 2024.

45. In June 2025, the applicant posted a request on a construction work website seeking quotations from a builder to undertake repair work at The Applicant’s lot. The works were described as:

Due to ingress of water from upper level balcony water penetrated through [ceiling] slab and wall into our apartment damaging the interior and floorboards. It requires possible removal of the false ceiling and removing plasters on the concrete walls and filling the cracks, replacing the floorboards and painting entire apartment.

46. The applicant provided a single quotation obtained in response to that request, dated 7 July 2025 and expressed to be valid for one week. That quotation totalled $39,020.30 (inclusive of GST) and described the proposed works in general terms as:

Repairs to water damaged unit

Demolition

1. Remove damaged Bamboo Flooring …

2. Remove Ceilings with mould …

3. Removed … render from main bedroom wall …

4. Clean mould and treat areas

Construction Repairs

5. Supply and repair drumming render

6. Supply and install new plasterboard Ceilings

7. Supply and Install new … Bamboo Floating Floor ....

8. Supply and Repaint Ceilings and walls …

Home Warranty Policy for works

The quotation also included allowances for preliminaries ($4,803) and builder’s margin ($3,224). The Tribunal notes that this quotation is expressed at a high level of generality and does not distinguish between works referable to common property (if any) and works to lot property.

47. In his statement dated 28 October 2025, which he adopted in evidence, Mr Madden stated that no works recommended by the project engineer (Partridge Engineering) remain outstanding, and that no further works to common property are required.

The applicable law

48. As noted above, the claim was filed on 6 September 2024. At that date, s 106 of the SSM Act provided (my underlining):

106 Duty of owners corporation to maintain and repair property

(1) An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.

(2) An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.

(3) This section does not apply to a particular item of property if the owners corporation determines by special resolution that—

(a) it is inappropriate to maintain, renew, replace or repair the property, and

(b) its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.

(4) If an owners corporation has taken action against an owner or other person in respect of damage to the common property, it may defer compliance with subsection (1) or (2) in relation to the damage to the property until the completion of the action if the failure to comply will not affect the safety of any building, structure or common property in the strata scheme.

(5) An owner of a lot in a strata scheme may recover from the owners corporation, as damages for breach of statutory duty, any reasonably foreseeable loss suffered by the owner as a result of a contravention of this section by the owners corporation.

(6) An owner may not bring an action under this section for breach of a statutory duty more than 2 years after the owner first becomes aware of the loss.

(7) This section is subject to the provisions of any common property memorandum adopted by the by-laws for the strata scheme under this Division, any common property rights by-law or any by-law made under section 108.

(8) This section does not affect any duty or right of the owners corporation under any other law.

49. The principles governing s 106 of the SSM Act (and its predecessor, s 62 of the equivalent 1996 Act) are well established:

50. The duty imposed on an owners corporation to maintain and repair common property, and to renew or replace fixtures and fittings, is strict, absolute and mandatory, such that questions of reasonableness, fault or the taking of reasonable steps are immaterial to liability: Ridis v Strata Plan 10308 (2005) 63 NSWLR 449 at [5] (Hodgson JA); Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157 at [21] (Brereton J).

51. The duty is owed to each lot owner individually, and may require works even if of no benefit to the owners corporation as a whole or a majority of proprietors: The Proprietors of Strata Plan No 159 v Blake [1986] NSW Titles Cases 50,650; Ridis at [166] (McColl JA); Seiwa at [4] (Brereton J).

52. Breach occurs as soon as the common property falls into disrepair, is damaged, or operates inadequately, and does not depend on notice or fault (Ridis at [177] (McColl JA); Seiwa at [5] (Brereton J)).

53. Consistently with The Owners Strata Plan 50276 v Thoo [2013] NSWCA 270, however, the statutory scheme is exhaustive in relation to remedies such that, absent specific statutory provision, breach of the duty does not of itself give rise to a common law action for damages.

54. The content of the duty requires the owners corporation to keep common property operational and restore it to a proper state of repair, and the concept of “repair” extends to making good defects and, where necessary, making additions to achieve functionality: The Proprietors of Strata Plan No 6522 v Furney (1976) 1 NSWLR 412; The Proprietors of Strata Plan No 30234 v Margiz Pty Ltd (1993) 32 NSWLR 294; Lin v Owners – Strata Plan No 50276 (2004) 11 BPR 21,463.

55. The distinct obligation under s 106(2) to “renew or replace” operates beyond mere repair and may require complete replacement of defective or inadequate systems where they fail to operate efficiently or effectively (Margiz at 297–298; Lin at [46]; Ridis at [168]–[170]).

56. A breach may therefore arise where common property systems are incapable of servicing lots or are operating inadequately, requiring works sufficient to restore efficient and effective operation.

57. A lot owner may recover damages pursuant to s 106(5) for reasonably foreseeable loss, including damage to lot property and personal property within the lot, where such loss is caused by a breach of the owners corporation’s duty under s 106(1) or (2). However, any such claim is subject to the limitation period in s 106(6).

58. The operation of s 106(6) was authoritatively considered by the Court of Appeal in The Owners – Strata Plan No 74232 v Tezel [2023] NSWCA 35. In that case, the Court held that the phrase “first becomes aware of the loss” refers to the time at which the lot owner first becomes aware of the kind or type of loss for which damages are claimed under s 106(5), rather than the date of the breach or the occurrence of subsequent manifestations of that loss.

59. The Court made clear that, although a breach of the duty under s 106(1) may be continuing in nature, the limitation period in s 106(6) runs from the point at which the owner first becomes aware of the relevant loss, and that awareness arises only once. The limitation period is not re‑set by later consequences or continuing damage of the same kind. Accordingly, where an owner becomes aware of a particular category of loss, such as water damage to a lot or loss of rental income, the two‑year period runs from that point, and subsequent continuation or worsening of that loss does not extend or revive the time for bringing a claim for damages.

60. Subsection 106(6) was amended on 1 July 2025, after the commencement of this proceeding, to replace the limitation period of two years with a new limitation period of six years. However, that amendment does not apply retroactively to applications that were lodged before that date: John Goubran & Associates Pty Ltd ACN 070 974 819 v The Owners – Strata Plan 57150 [2026] NSWDC 9 at [73]-[81], per Cole DCJ, citing Rodway v R [1990] HCA 19; (1990) 169 CLR 515 at [4]-[6], which in turn cited Maxwell v. Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267-268, per Dixon CJ.

61. Accordingly, the two-year limitation period applies the determination of the applicant’s claim in this proceeding.

The compensation claim and the limitation of time issue

54. To the extent that the applicant seeks compensation pursuant to s 106(5), that claim is subject to the limitation period in s 106(6). The present application was filed on 6 September 2024. It follows that any loss first known to the applicant prior to 6 September 2022 is statute‑barred under the version of the section that applied when the application was filed.

55. The applicant’s case, as set out in his Points of Claim, is that the owners corporation failed over an extended period to address waterproofing defects, resulting in ongoing water ingress and damage to his lot, as well as loss to personal property. In his Points of Reply, the applicant contends that:

“It is an undisputed material fact that the Applicant’s lot damage was caused by a failure of the common property (water ingress). The damage has worsened due to the OC’s failure to repair in a timely manner. The applicant first reported the water penetration issue in June 2017, establishing a continuous statutory breach by the Owners Corporation that has persisted for over seven years. The former Strata Manager confirmed that the internal unit works were the ‘final step’ following the common property repair.”

56. The applicant therefore contends that the breach of s 106(1) has been continuous since 2017. However, the concept of a continuing breach does not alter the operation of s 106(6), which is directed to the point in time at which the applicant first became aware of the relevant loss. Once that awareness arises, the limitation period runs from that point and is not extended by the continuation of the breach or the worsening of damage.

57. The Tribunal accepts that the applicant advances his case on the basis of a continuing breach, supported by the chronology of repeated reports of water ingress over time. However, consistently with the applicable principles set out above, the existence of a continuing breach does not determine the operation of s 106(6), which turns instead on when the applicant first became aware of the relevant loss. The evidence establishes that the applicant was aware, by no later than March to July 2022, of water ingress into The Applicant’s lot and resulting damage to internal finishes, including walls, ceilings and flooring, as well as the presence of moisture and mould. The Tribunal is satisfied that, by that time, the applicant had actual knowledge of the essential character of the loss for which compensation is now sought.

58. The applicant relies on statements attributed to a former strata manager to the effect that delay is attributable to the owners corporation. Even if accepted, those statements do not affect the operation of the limitation period under s 106(6) or establish that any claim for damages has been brought within time. Nor do statements or concessions made by strata managers or legal representatives alter the operation of the statutory limitation period or establish a compensable claim in the absence of compliance with s 106(6).

59. In those circumstances, the Tribunal finds that the relevant awareness of that category of loss arose, at the latest, by July 2022. That awareness set the limitation period under s 106(6) running, with the consequence that the applicant was required to bring any claim for compensation in respect of that loss within two years of that time. The continuation or worsening of that damage after that date does not give rise to a fresh limitation period for the same category of loss. Accordingly, any claim for compensation in respect of water ingress damage to the lot and its contents is barred by s 106(6).

60. The applicant also contends that further loss occurred after that time, including continuing deterioration within the lot and damage to personal property, including as a result of basement flooding events. However, the applicant’s own chronology records that basement flooding, and associated damage to belongings stored in the basement, was brought to the attention of the strata manager as early as February 2020. On that evidence, the applicant was aware of that category of loss well before 6 September 2022.

61. The applicant also submits that difficulty in obtaining quotations was caused by the respondent’s conduct in escalating the dispute. That submission does not relieve the applicant of the onus of establishing loss with appropriate and probative evidence, nor does it overcome the absence of sufficiently precise material as to the nature, timing and quantum of any loss.

62. The applicant further submits that the flooring must be wholly replaced because the original materials are no longer available. Even if accepted, that contention goes only to the scope and cost of remediation and does not address the threshold issues of limitation or the requirement to establish compensable loss with sufficient evidentiary precision.

63. The Tribunal is not satisfied, on the evidence before it, that any category of loss relied on by the applicant was first suffered and first known to him within the limitation period. In particular, both the internal water ingress damage to The Applicant’s lot and the asserted basement flooding loss were known to the applicant prior to 6 September 2022. The evidence does indicate that water ingress and its effects continued after that date, and that remedial works were not completed until mid‑2024. However, the material does not clearly distinguish between the continuation or progression of earlier damage, and the occurrence of new and materially different loss within time.

64. In particular, the applicant’s evidence as to continuing mould, moisture and deterioration, and damage to personal property, is expressed in general terms and is not supported by sufficiently precise evidence as to when such loss was first sustained and first identified. Nor is there sufficient evidence to establish a clear causal link. In any event, given the Tribunal’s finding that all relevant categories of loss were known to the applicant outside the limitation period, questions of causation do not arise for determination in respect of the claim for compensation. This includes both the damage to The Applicant’s lot arising from water ingress and the asserted loss relating to basement flooding.

65. The owners corporation relies on McDaid v The Owners – Strata Plan No. 60346 [2023] NSWCATCD 134 to submit that a claim for damages also requires cogent evidence of quantifiable loss, and that a single quotation, without supporting material, may be insufficient to discharge the applicant’s onus. That submission is also consistent with authority. In McDaid, the Tribunal rejected a claim for damages where the evidence did not satisfactorily establish the extent of loss or its causal connection to the breach.

66. In the present case, even if the claim were not statute‑barred, the evidentiary material relied upon by the applicant does not establish loss with the necessary degree of precision. The material is limited and does not enable the Tribunal to make reliable findings as to the quantum or causation of any alleged compensable loss.

67. In those circumstances, the Tribunal finds that the applicant has not discharged the onus of establishing that any part of his claim for compensation falls within the limitation period prescribed by s 106(6). All aspects of the compensation claim are therefore statute‑barred. The claim for compensation must therefore be dismissed.

The repair orders claim

68. The applicant seeks orders requiring the owners corporation to carry out remedial works in relation to damage within The Applicant’s lot. As noted above, the applicant accepts that the orders sought are confined to damage to lot property and do not extend to repairs to common property.

69. While an application for work orders is not subject to the limitation period in s 106(6), such orders may only be made where necessary to give effect to the owners corporation’s obligations under s 106(1) or (2), which are confined to the maintenance, repair, renewal or replacement of common property.

70. It follows that the Tribunal does not have power, under s 106 or s 232, to make orders requiring an owners corporation to carry out repairs to property that forms part of a lot, as distinct from common property, unless such work is necessary as part of, or incidental to, the discharge of its obligations in respect of common property.

71. The Tribunal recognises that the applicant has suffered damage within The Applicant’s lot causing inconvenience and hardship. However, the Tribunal’s powers under the Act are confined to orders relating to common property. In general terms, the owners corporation is responsible for structural elements that form part of common property, while lot owners are responsible for internal finishes, fixtures and alterations within their lot.

72. It is therefore possible that some of the elements referred to by the applicant may, in another case, involve common property. However, in the present proceedings, the applicant has expressly confined his claim for work orders to damage to his lot property. The Tribunal must determine the claim on that basis. In this respect, the applicant’s submissions as to the extent of damage and the cost of remediation, including the asserted need for full replacement of flooring and associated works, do not alter the character of the claim as one directed to lot property.

73. The owners corporation also relies on McDaid to submit that, where a work order is sought, the onus rests on the applicant to put forward a sufficiently clear and particularised scope of works to enable compliance with any order made. That submission is consistent with established authority. In McDaid, the Tribunal declined to make a work order in the absence of a sufficiently detailed scope of works capable of identifying with precision the works required.

74. In the present case, the applicant has not provided a sufficiently particularised scope of works within The Applicant’s lot. In particular, the evidence does not clearly identify the elements affected, nor distinguish between common property and lot property. On the applicant’s own admission, the Tribunal accepts that the wall damage complained of concerns internal walls forming part of the lot. In those circumstances, and in the absence of a clear and workable scope of works, the Tribunal is not satisfied that a work order could properly be made.

75. In those circumstances, even if the owners corporation was in breach of its obligations under s 106(1) or (2) at an earlier time, the Tribunal is not satisfied that there is any present or continuing breach requiring the making of orders. Further, the orders sought by the applicant are directed to lot property and are not of a kind that the Tribunal may properly make under s 106.

76. Accordingly, the claim for repair orders must be dismissed.

Costs

77. The owners corporation seeks to be heard on the question of costs following delivery of these reasons. In those circumstances, the Tribunal will make directions for the filing of any application for costs and supporting material.

78. The applicant seeks a “cost protection order” pursuant to s 60(3) of the Civil and Administrative Tribunal Act 2013 (NSW). The question of whether any order for costs should be made, including whether special circumstances arise, will be determined after hearing from the parties in accordance with the directions set out below.

Conclusion and orders

79. The orders made by the Tribunal are:

80. The application is dismissed.

81. The question of costs is reserved.

82. If either party seeks an order for costs, that party must file and serve any application for costs, together with any supporting evidence and submissions (not to exceed 5 pages), within 14 days of the date of these reasons.

83. The other party must file and serve any evidence and submissions in response (not to exceed 5 pages) within 28 days of the date of these reasons.

84. Any reply evidence and submissions (not to exceed 3 pages) must be filed and served within 35 days of the date of these reasons.

85. The parties’ submissions on costs are to address the operation of s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) in relation to any application for costs, and whether the question of costs can be determined on the papers without an oral hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar