Chaar v The Owners - Strata Plan 57161

Hearing

1. After the Appeal Panel had identified the relevant documents, the parties made oral submissions, following in the usual sequence of appellant then respondent, followed by the appellant in reply, so that each party was able to speak in support of their case and to respond to the case of the other party.

Documents

1. Apart from the Notice of Appeal, received on 10 September 2024, and the Reply to Appeal, received on 14 November 2024, the documents lodged by the parties in respect of this appeal were those received from the appellant on 6 November 2024, from the respondent on 14 November 2024, and the appellant's submissions in reply which were received on 15 November 2024.

Timing

1. The order dismissing the application was made on 27 August 2024, and r 25 of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules) required that the Notice of Appeal be lodged within the following 28 days, which is by 24 September 2024. As the Notice of Appeal was received on 10 September 2024, the appeal was commenced within time.

Appellant's submissions

1. The appellant stated that she did not contend that the appeal raised a question of law. Further, the appellant did not suggest that there was significant new evidence now available that was not reasonably available at the time of the hearing. Instead, the appellant contended that the decision was (1) not fair and equitable, and (2) was against the weight of the evidence.
2. The appellant indicated that the basis of the appeal was that the "timeline was incorrect" in that events which occurred in 2022 were mistakenly said to have occurred in 2021. The appellant asserted that, after she incurred expenditure on repairing the roof in September 2021, she lodged an application at the Burwood office of Service NSW on 19 April 2022. The applicant included in her appeal papers a copy of a receipt from Service NSW bearing that date for the lodgement of an application in the Consumer and Commercial Division.
3. It is convenient to here note that there was no evidence of what happened to that application. It was clear that it was the application lodged on 19 January 2024 which was the application under consideration at first instance, and which is the subject of this appeal.

Respondent's submissions

1. In brief submissions for the respondent, it was said that the first instance decision was correct in that the application was made more than two years after the appellant first became aware of the loss, as stated in the reasons delivered at first instance, at [23].

Submissions in reply

1. In reply, it was contended that (1) January 2024 was not outside the two year "window", (2) January 2024 was less than two years after a mediation between the parties in March 2022, and (3) the appellant lost a year because of what was said to have been a human error of incorrectly using 2021 instead of correctly using 2022.

Applicable law

1. The Strata Schemes Management Act 2015 (NSW), in s 106(1), imposes a duty upon an owners corporation to maintain and repair common property and s 106(5) creates a right to claim damages when there is a breach of that duty. However, s 106(6) imposes a two-year limitation period. Those three subsections of s 106 are set out below: (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. … (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. …
2. The decision of the Court of Appeal in The Owners - Strata Plan No 74232 v Tezel [2023] NSWCA 35 (Tezel) confirmed that time commences to run from when the lot owner first becomes aware of the loss.
3. Further, in The Owners - Strata Plan No 30691 v Pickard [2024] NSWCATAP 126 (Pickard) it was held that the two-year limitation period imposed by s 106(6) of the SSMA cannot be extended by the Tribunal.

Consideration

1. For convenience, the relevant dates are summarised in the following table: Jun 21 The appellant reported a leak to the respondent Sep 21 Repairs arranged by the appellant were completed Sep 21 The appellant spent $1,430 on those repairs 15 Nov 21 The respondent refused reimbursement 16 Feb 22 Mediation failed to resolve the dispute 19 Apr 22 An application was lodged at Service NSW in Burwood 28 Jun 22 The respondent said that application had not been received 19 Jan 24 An application was lodged (2024/00023107) 20 Jun 24 That application was heard 27 Aug 24 The application was dismissed and reasons were published

1. That table uses dates obtained from the first instance reasons but with 2021 dates corrected to 2022.
2. Applying both what appears in s 106(6) and what was said in Tezel, the two-year limitation period commenced to run in September 2021 because that was when the appellant first became aware of the loss. As a result, the two-year limitation period expired in September 2023.
3. Even if It might be said that the appellant first became aware of the loss on 15 November 2021, since that was when her request for reimbursement was refused, the two-year limitation period expired on 15 November 2023.
4. Either way, the application which was the subject of the first instance proceedings, and which is the subject of this appeal, was out of time because it was not lodged until 19 January 2024. The presiding member could not determine the proceedings by reference to an application (i.e. the application apparently filed in 2022) that was not before the Tribunal at the hearing on 20 June 2024.
5. The incorrect date of June 2021, which should have been June 2022, did not impact on the outcome of the proceedings because it was not the date when the limitation period commenced.
6. It is understandable that the appellant took issue with what was said in the first instance reasons at [20]-[21] which are set out in full below: [20] I am satisfied that the applicant was on notice the first application she filed through the OFT in Burwood had gone astray on the 28 June 2021, when she received the email from Mr Kocoski. [21] The appellant provided no cogent reason to explain why she failed to make contact with NCAT for a period of two years. The present application was filed on the 19 January 2024. The works to the roof were completed and paid for by the applicant in September 2021. Her loss accrued when the respondent failed to reimburse her the repair cost. Although the date was not specified by the applicant I find it was sometime prior to the date she filed the first application on the 19 April 2021, seeking an order for payment. That date being more than two years after [sic] the applicant filed the present application.
7. As the appellant pointed out, the date of 28 June 2021 in [20] should have read 28 June 2022. However, that paragraph was not determining the application but was referring to the applicant becoming aware of her first application having gone astray. It is convenient to here note that we have not been provided with anything to indicate what the appellant did during the period from 28 June 2022, when she was on notice that her first application had gone astray, and 19 January 2024, when she filed the application which is the subject of this appeal.
8. While, in [21], there is a reference to when the repairs were completed (September 2021) and to when the respondent refused to reimburse the appellant (November 2021), those events were referred to as the date when "loss accrued". It is preferable to follow the words of s 106(6) which refer to when the appellant "first becomes aware of the loss". The reference in [21] to 19 April 2021 should plainly have been to 19 April 2022.
9. However, the crucial point is that the appellant first became aware of the loss during the second half of 2021 and did not file the subject application until early in 2024. Since that period exceeds two years, and as that period cannot be extended (Pickard), it follows that the application was correctly dismissed.
10. We note that, in our view, the appellant became aware of the loss in September 2021, when she incurred the expenditure for which she sought to be reimbursed. Even assuming that expenditures incurred by a lot owner in undertaking repairs which should be the responsibility of the owners corporation can constitute a "reasonably foreseeable loss" suffered by the lot owner as a result of the owners corporation failing to repair and maintain common property (about which proposition we make no comment either way), that loss is incurred when the lot owner incurs the expenditure, and the lot owner becomes aware of the loss at the same time.
11. The loss incurred by a lot owner in expending money in repairing common property is not a contingent loss, which is only incurred when the owners corporation declines to reimburse the lot owner (cf Wardley Australia Ltd v Western Australia (1992) 175 CLR 514). The loss falls in immediately, the fact that the owners corporation might agree to reimburse the lot owner does not make the loss contingent upon the owners corporation refusing to do so.
12. It follows that the errors in the reasons published at first instance, which should have referred to 2022 and not 2021, did not affect the outcome of the application. In other words, even if those errors are corrected, the outcome is the same. The Tribunal agrees with the outcome, expressed in the first instance reasons at [23] as follows: I am satisfied that the applicant's claim for compensation was made more than two years from the date when she first became aware of the loss and accordingly the application is dismissed.
13. In those circumstances, it cannot be said that the decision was not fair and equitable. Nor can it be said that the decision was against the weight of the evidence because the evidence clearly established that the application under consideration was not lodged until 2024 despite the appellant first becoming aware of the loss in 2021.
14. That being the case, there is no basis for granting leave to appeal. Accordingly, leave to appeal must be refused. Further, there was no suggestion that this appeal involved any question of law. As a result, the appeal must be dismissed.
15. Plainly, the application said to have been lodged in Burwood on 19 April 2022 was within time because that was only just over six months since the appellant outlaid $1,430 in September 2021 and only four months after the respondent refused to reimburse that amount, both dates being well within the two-year limitation period. However, despite being advised on 28 June 2022 that the respondent had not received that application, there is nothing to suggest the applicant took any steps in relation to that application before she lodged another application more than 18 months later, on 19 January 2024. The earlier application was not before the Tribunal on 20 June 2024 and can have no bearing upon the determination of an appeal against the decision of the Tribunal concerning the application filed on 19 January 2024.

ORDERS

1. For the reasons set out above, the following orders are made: 1. Leave to appeal is refused. 2. The appeal is otherwise dismissed.

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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 November 2024