Strata & Building Managers Exposed to NCAT Claims Including Damages

Silberstein v Strata Choice Pty Ltd & Hecker Australia Pty Ltd [2022] NSWCATAP 375

GoStrata’s CaseWatch is a short, sharp and easy-to-understand review of important and interesting Court and Tribunal decisions affecting Australian strata title stakeholders.

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Quick Read

This 2022 decision by the NSW NCAT Appeal Panel is about a claim against a strata manager and building manager as part of a dispute about water entry in a Sydney CBD strata title building.  As well as making claims against the strata building, the strata owner claimed that the strata manager and building manager were also liable for breaching common law duties.  So, NCAT and the NCAT Appeal Panel had to decide if they could make orders under s 232 against strata and building managers and if that included damages claims. After considering s 232 and other recent Court and Tribunal decisions, the NCAT Appeal Panel decided that it could make orders against anyone who undertook strata functions, s 232 powers depended on whether the dispute came within its terms and not the nature of the legal claim], and there was no limitation on making damages orders if it did.  So, it sent the case back to NCAT to reconsider it. The decision is important as it demonstrates how wide NCAT’s general order making powers are including against third parties, over common law duties and for damages orders.  It’s also another example of how important the NSW Court of Appeal decision in Vickery’s Case is for NSW strata title disputes.

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Implications

The key implications of this strata case are as follows.

• NCAT’s general order making powers in s 232 are widely framed.

• NCAT orders can be made against anyone who undertakes strata functions.

• That includes strata and building managers because of s 66 and s 70.

• NCAT orders can be made about any kind of legal claim provided it is within the disputes listed in s 232.

• NCAT orders can be made for damages under s 232.