Tribunal Confirms its Jurisdiction to Award Damages for Breach of Statutory Duty

Ellen WoffendenOctober 3rd, 2017

In an August 2017 decision, the NSW Civil and Administrative Tribunal has confirmed its jurisdiction to award damages for a breach of the Strata Schemes Management Act 2015 (NSW). Rosenthal v The Owners – SP 20211 [2017] NSWCATCD 80 (29 August 2017) concerned the duty that an owners corporation has under section 106(1) of the Strata […]

A nuisance for Owners Corporations: damages awarded to lot owner

Natalee VenegasOctober 2nd, 2017

In February this year, we reported on the case of McElwaine v The Owners- Strata Plan No 75975 [2016] NSWSC 1589. To remind you of the facts, lot owner McElwaine pursued his Owners Corporation in a common law claim of nuisance, after alleging that his lot was damaged by water penetration caused by defective waterproofing. McElwaine […]

Balustrades and BCA requirements – when repair becomes upgrade

Amanda FarmerApril 28th, 2017

In Lipscher and Ors v The Owners – Strata Plan No 30995 [2017] NSWCATCD 2 (5 January 2017) three lot owners successfully challenged an owners corporation’s decision to replace balcony balustrades at the property. The decision to replace the balustrades was made via an ordinary resolution in a general meeting. The lot owners complained that a special […]

What a nuisance: the effect of strata legislation on common law claims

Bianca BarryFebruary 28th, 2017

The case of McElwaine v The Owners- Strata Plan No 75975 [2016] NSWSC 1589 was decided under the Strata Schemes Management Act 1996 (“Old Act”), which has now been repealed.   McElwaine was a lot owner who alleged that heavy rain caused severe damage to his unit through water penetration from the common property. McElwaine […]

Fraud and Indefeasibility of title

Savina YangNovember 30th, 2016

Torrens title is a system of land registration, in which a single register is used for each land holding and records all details and interests affecting that land, such as easements, mortgages, caveats etc. This is the system we have been using in Australia since the 1850s. Pursuant to section 42 of the Real Property Act 1900 (NSW) the […]

No More Strata Adjudications

Bianca BarryNovember 30th, 2016

Under the new Strata Schemes Management Act 2015 which commences today, 30 November 2016 (“New Act”), the process of strata adjudication has been done away with. Instead, all strata applications will be determined in hearing by the NSW Civil & Administrative Tribunal (“Tribunal”).   Under the Strata Schemes Management Act 1996 (“Old Act”), applications for […]

The mullet that launched a thousand memes: is it defamation or fair game?

Bianca BarryOctober 29th, 2016

  You may be familiar with the viral image accompanying this article. Its subject, Ali Ziggi Mosslmani, brought proceedings against three major news organisations for publication of the image on 21 July 2015 in the Daily Telegraph (both online and in print), on DailyMail.com, on 961.com.au, on kiis1065.com.au, and on KIIS 1065’s Facebook page.   […]

BY-LAW: DENIED.

Caelan BruceOctober 26th, 2016

In the case of Colbert v MacDonald & Ors [2016] NSWSC 1291 (15 September 2016) the Supreme Court considered (a) the requirements of Adjudicators in complying with any statutory preconditions before exercising a power, and (b) whether Owners Corporations are required to circulate orders and notices from the Tribunal, in order to prevent individual lot […]

Owners corporation ordered to pay $150,000 to injured lot owner

Bianca BarrySeptember 28th, 2016

In Allen v Strata Plan 54664 an owners corporation was ordered to pay over $150,000 in damages to Mrs Allen, an elderly lot owner who tripped over a rubber mat in a common property lift. The owners corporation had put in place a code of conduct which required certain rules to be followed when the […]

The Power of an Executive Committee to Settle Proceedings on behalf of the Owners Corporation

Bianca BarryAugust 30th, 2016

In the case of The Owners- Strata Plan No 57164 v Yau [2016] recently decided in the Supreme Court of NSW, an Owners Corporation attempted to argue that a decision of the executive committee to settle proceedings was invalid, on the basis that the executive committee meeting at which the decision was made was not […]

Legal professional privilege: disputes between owners corporations and lot owners

Bianca BarryJuly 28th, 2016

Broadly speaking, legal professional privilege can be claimed over confidential communications and documents made for the dominant purpose of: giving or receiving legal advice; or use in existing or anticipated litigation. In general, an owners corporation is entitled to claim legal professional privilege against a lot owner with whom the owners corporation is involved in […]

GOOGLE FOR THE WIN

Savina YangJuly 28th, 2016

Have you ever Googled something and clicked on the first generated search result only to realise it is an advertisement trap? In the world of Google, those advertisements are called “sponsored links” which are generated by a program called “AdWords”. “AdWords” uses search terms entered by you to trigger sponsored links, which are then displayed […]

Update on the kids who are suing Obama for climate change

Hallie WarnockApril 28th, 2016

Back in September I wrote this article about the landmark case that was filed in the U.S. by 21 youth plaintiffs who allege that their constitutional right to a healthy climate is being denied. They say that the U.S. Government “has known for decades that carbon dioxide (C02) pollution has been causing catastrophic climate change […]

New off the plan provisions tested for the first time

Bianca BarryMarch 31st, 2016

In November I wrote about the Conveyancing Amendment (Sunset Clauses) Bill 2015 (“Sunset Clauses Bill”) which rid the Conveyancing Act 1919 (“Act”) of the sunset clause loophole.   The new section 66ZL of the Act provides that a developer may rescind an off the plan contract under a sunset clause in circumstances where:   The buyer consents […]

The boy who cried “defamation!”

Hallie WarnockMarch 31st, 2016

At one point, Sydney was the defamation capital of the world, which is not hard to believe when it seems as though everyone is ready to cry “defamation” at any and every comment. However an action in defamation is not that simple.   What is defamation and what does the law actually protect? Does it […]

Should juries be reintroduced for civil trials?

Natalee VenegasMarch 31st, 2016

Last month, the NSW Bar Association, through its president Noel Hutley SC, called for juries to be reintroduced in civil matters in NSW.   While juries have previously been used in civil matters, section 85 of the Supreme Court Act 1970 (NSW) and section 76A of the District Court Act 1973 (NSW) were amended in […]

The difficulty of repealing an exclusive use by-law

Savina YangFebruary 28th, 2016

In order for an owners corporation to repeal an exclusive use by-law that confers on the owner of a lot, or the owners of several lots, certain rights or privileges to use a part of the common property, section 52 of the Strata Schemes Management Act 1996 (“SSMA”) requires the written consent of the owner(s) […]

Dividing fences in disrepair: which neighbour has to pay?

Hallie WarnockJanuary 28th, 2016

If two neighbours share a fence and it is in need of some fixing up, who has to pay? Is one neighbour completely liable for the costs? What happens if a fence is dangerous and one neighbour is refusing to pay? Are any legal actions available to make the other neighbour pay? These questions and […]

When a settlement isn’t really a settlement

Bianca BarryJanuary 28th, 2016

On 15 December 2015 a decision was handed down in the Supreme Court of NSW in The Owners- Strata Plan No. 58087 v Matthews. The dispute related to whether or not a lot owner was entitled to park in a visitors’ parking space.   In this case, the Owners Corporation claimed that the dispute and […]

Landlord fined $11,000 for smoking neighbour

Natalee VenegasNovember 29th, 2015

The NSW Civil and Administrative Tribunal Appeal Panel has upheld a decision to order a landlord to pay a tenant over $11,000 in compensation, declaring a unit that was permeated by smoke from a smoker downstairs was unsuitable for habitation. This is an important case because the landlord was liable for compensation even though the […]

Developer wins in “off the plan” case

Bianca BarryOctober 29th, 2015

Last month I wrote about the risks associated with buying strata units off the plan. One particular risk is that the developer may be entitled to rescind the contract and resell the unit once a certain date has passed. This date is known as the “sunset date”.   On 6 October 2015 judgment was handed […]

Failing to be clear is fatal in litigation

Amanda FarmerSeptember 30th, 2015

In APX Projects Pty Limited v The Owners Strata Plan No. 64025, a lot owner attempted to:- argue that a large payment made to settle debt recovery proceedings should have been allocated to sinking fund levies rather than outstanding legal fees; and bring an action against the treasurer, on behalf of the owners corporation. The owner failed […]

Why Ashley Madison matters

Natalee VenegasSeptember 30th, 2015

Last month, a targeted hack-attack on the Ashley Madison website resulted in the leak of 37 million members’ details.   A group called Team Impact had previously threatened Ashley Madison and its parent company to shut down their websites or expose themselves to breach of privacy lawsuits as the group would drip leak private information […]

Judging climate change

Hallie WarnockSeptember 30th, 2015

Climate change threatens the survival of the Earth’s ecosystems, as well as the health and wellbeing of current and future generations. Given the enormity of these risks and the urgency of action, you would expect an appropriate response from governments. Yet what we mostly see are token gestures towards climate action side-by-side with new approvals for […]

When the law is on your side

Savina YangSeptember 30th, 2015

In a previous article we set out the various options available to an owners corporation to enforce its by-laws. Recently, we acted in a matter where the Owners Corporation successfully undertook enforcement action against a lot owner who was in breach of a flooring by-law. The lot owner had installed hard flooring without the Owners Corporation’s […]

Dallas Buyers Club – the next instalment

Hallie WarnockAugust 31st, 2015

Back in April I wrote an article about the outcome of the Dallas Buyers Club case. The Federal Court has since handed down a new decision. To understand this most recent judgment, a recap of what has happened thus far in the case is necessary. In summary, the first DBC case concerned whether ISPs (including […]

The fight between Taxi and Uber

Savina YangAugust 31st, 2015

Last week, the weather was wet, windy and ugly. No doubt, some of you (like me) considered a more convenient way to stay dry by catching a taxi home. Did you book your taxi by phone, only to be left stranded when it didn’t turn up? Did you face the dilemma of whether to continue […]

Strata levy recovery: the requirement for expenses to be reasonable, but not proportionate

Amanda FarmerAugust 31st, 2015

The NSW Supreme Court has reminded us of the requirement for section 80 levy recovery expenses to be ‘reasonably incurred’ and ‘reasonable in amount’. If there is any doubt, costs will be referred for assessment. IIB Australia Pty Ltd v Owners Strata Plan 76024 (No 2) [2015] NSWSC 929 (16 July 2015) was an appeal […]

Recovering unpaid strata levies

Amanda FarmerApril 23rd, 2015

Due to popular demand, I have prepared this paper setting out my advice on the best practice to be applied when recovering unpaid strata levies, including my thoughts on the practice of recording ‘expenses’ on owner ledgers. Amanda Farmer strata debt recovery paper 22.04.15   The information contained in this article is not legal advice. […]

The eyes of Texas are upon you: illegal downloaders beware

Hallie WarnockApril 22nd, 2015

In an age where few think twice before illegally downloading music, television shows and movies, a recent judgment might be the beginning to end of this cultural norm. In Dallas Buyers Club LLC v iiNet Limited [2015] FCA 317, the company who owns the rights to the blockbuster film Dallas Buyers Club, took action to […]