Coscuez: power to award damages under s232

Coscuez International Pty Ltd v The Owners-Strata Plan No 46433 [2022] NSWCATAP 147

In short

• Any action under the SSMA that does not specify a time to commence proceedings is to be made within 28 days of failed or refused mediation, unless of the kind captured by the Limitation Act 1969.

• Leave to extend the time to bring such action outside of 28 days can be granted under section 41 of the NCAT Act.

• The Tribunal’s power under s232 to award damages for breach of by-law and ‘cost recovery’ by-laws remains unclear.

Background

The factual background is extensive. Relevantly, the appellant lot owner owns a commercial ground floor lot in a predominantly residential building. A number of disputes arose, which included matters of reinstating an unauthorised alteration to the entrance door, unauthorised installation of a toilet, common supply metered water usage and charges purportedly issued to the lot owner under ordinary by-laws.

Limitation periods

Although not pressed by either party, the Appeal Panel provided views on a little-known limitation period applicable to causes of actions arising under the Strata Schemes Management Act 2015 (“SSMA”).

Rule 23(3) of the Civil and Administrative Tribunal Rules 2014 states that unless the Tribunal grants an extension under section 41 of the Civil and Administrative Tribunal Act 2013 (“NCAT Act”), an application to the Tribunal must be made within the time specified under the SSMA, or where no time is specified, within 28 days.

Attempted mediation is required for most applications to the Tribunal under the SSMA, save for a few exceptions and often unable to be completed within 28 days.

At [109], the Appeal Panel considered that the material point in time under Rule 23(3) starts to run from the time mediation is deemed unsuccessful or refused.

In any event, the Appeal Panel considered that an extension would have been exercised under section 41 of the NCAT Act having regard to the principles to grant an extension to file an appeal set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22].

Water usage charges & s232 damages

The owners corporation sought to rely on an oral agreement with the prior lot owner that the lot owner pay for water usage. The owners corporation sought a money order under section 232 in breach of that agreement or as a failure to make payment for a cost imposed by a by-law. Importantly, the water usage charges were not issued under a differential levy contribution, but added as ‘one-off charges’ to the lot’s ledger.

The Appeal Panel regarded the claim as one of debt recovery in contradistinction to the statutory mechanisms for levy recovery.

Having regard to the Court of Appeal’s reasoning in Vickery v The Owners-Strata Plan No 80412 [2020] NSWCA 284, the Appeal Panel considered that the power to award damages under section 232 was not limited to section 106(5) for breach of statutory duty.

Ultimately, the Appeal Panel concluded that the Tribunal had no power to make an award of damages for the period prior to the commencement of the SSMA on 30 November 2016, given that the water charges arose prior to July 2016.

The Appeal Panel went on to say that it was theoretically possible that a by-law could impose a charge and that the Tribunal may have jurisdiction under s232 of the SSMA to make a money order if that charge is not paid.

The matter was remitted to be determined according to law.