The Ceiling Needs to be Painted in this Strata Damage Claim

Mastellone v The Owners-Strata Plan No 87110 [2021] NSWCATAP 188

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 2021 NCAT Appeal Panel decision is a dispute in a Baulkham Hills strata title building about whether or not the strata building had to repaint the ceiling in a strata lot after it was damaged by water entry. Although the strata building repaired the damaged ceilings, it did not paint them saying that a common property memorandum it had adopted and an extra by law it had made meant painting was the strata owner’s responsibility. They issues were whether or not the common property memorandum and/or by law applied to the painting work, and whether NCAT could make a work order [to paint the ceiling] as well or instead of order damages only. After considering the strata laws and Vickery’s Case, NCAT Appeal Panel decided that because its damages ordering powers came from s 232 [to settle disputes] it could make work orders as well as payment orders and that the common property memorandum and/or by law were not relevant since consequential lot damage was not a maintenance matter. So, against conventional thinking about NCAT powers and standard strata practices about lot owners being responsible to paint, the NCAT Appeal Panel ordered the strata building to paint the strata lot ceilings.

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Implications

The key implications of this strata case are as follows.

• NCAT can make work orders in s 106(5) claims for damages instead of payment orders.

• Vickery’s Case confirmed, the power to make damage orders under section 106(5) is part of its power to settle disputes under section 232.

• Where strata lot damages are caused by strata building maintenance or repair failures, it is not repair and maintenance work.