Australia, July 23 -- New South Wales Land and Environment Court issued text of the following judgement on June 23:

1. This appeal concerns a dispute between the Appellant (who owns a lot in the Strata Plan constituted by the Respondent) and the Owners Corporation (the Respondent) concerning water damage and other defects affecting the lot owned by the Appellant. At first instance the Appellant's application was dismissed. We are of the opinion that the Tribunal made an error of law and that the Appellant's application should be remitted back to the Consumer and Commercial Division for a hearing on its merits. The reasons and the relevant background are set out in the following paragraphs.

2. The Appellant's original application (lodged 6 September 2024) described the orders sought as "general orders for settlement of dispute". Under the heading of Orders Sought the Appellant stated:

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

3. The application records that the parties engaged in mediation but did not reach a settlement.

4. Attached to the application are copies of emails from the Appellant to either the Respondent or the Respondent's managing agent. The most recent of those emails is dated 26 August 2024, the substance of which is that the Appellant requested that remedial work be undertaken by the Respondent.

The Decision

5. The decision under appeal is dated 21 January 2025 and it records that the Respondent did not appear at the hearing. We note that in the appeal proceedings the Respondent contends that it did not have notice of the hearing. The record of the decision by the Tribunal is that the "application for breach of s 106(1) of the Strata Schemes Management Act 2015 is dismissed after hearing." Then follows brief reasons as follows:

"The applicant filed a claim for orders for the repair of the common property and for damage to his belongings as a result of water leaking into his unit. He first observed and reported the problem on 1 March 2022. He first observed damage to his wooden flooring in late March or April 2022. This application was filed by the applicant on 6 September 2024. Pursuant to s 106(6) of the Strata Schemes Management Act the applicant cannot bring an action for breach of statutory duty under s 106(1) of the Act more than two years after first becoming aware of the loss. Accordingly, the claim is out of time and the Tribunal does not have the jurisdiction to hear the matter".

6. The above is the decision, the subject of the appeal. We will refer to it as the "Decision".

Notice of Appeal

7. The Appellant lodged a Notice of Appeal on 10 February 2025.

8. In the Notice of Appeal, the Appellant contended that the Tribunal had incorrectly applied the two year time limitation period under s 106(6). The Appellant contended that the Tribunal should have ordered compensation and had failed to order remedial work for the "ongoing structural issues in my apartment". The Appellant contended that he had suffered procedural unfairness by the failure of the Tribunal to consider the evidence. The Appellant listed a number of orders that the Appeal Panel should make. These included a number of orders for repair or remediation or replacement (see orders 4, 5 and 6 of part 5C of the attachment to the Notice of Appeal).

9. The Respondent filed a Reply to Appeal in which the Respondent maintained that the Tribunal did not err and that the appeal should be dismissed.

10. The Respondent has also lodged extensive submissions in support of the proposed order that the appeal be dismissed. The essence of the Respondent's submissions is that the Tribunal did not err in imposing a two year time limit on the Appellant's application. In other words, the Respondent submitted that because the Appellant first became aware of the alleged loss more than two years prior to the lodgment of the application he was not able to pursue his application by reason of s 106(6) of the Strata Schemes Management Act 2015 (NSW) (the Strata Act).

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1978b70264cd308dfa66c41d)

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