The Ceiling Needs to be Painted in this Strata Damage Claim

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

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.

Implications

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.
Work to repair damage caused by strata building maintenance or repair fail, is not covered by a common property memorandum and/or a by law about responsibilities.
NCAT didn’t consider the validity and effect of a common property memorandum and/or by laws about responsibilities. So, those issues remain unresolved.

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Full Report & Case Details

This decision by the NSW NCAT Appeal Panel is about 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.

The strata building roof leaked into a strata lot causing damage to the ceiling and other areas. The strata building repaired the leaks and replaced the strata lot ceiling, but did not paid it, saying it was the strata owner’s responsibility to paid it.

The strata building said that it had adopted a common property memorandum that said the ‘plastered ceilings and vermiculite, other than painting’ where the strata building’s responsibility; so that it was the strata owner’s and that a by law it had made that said that ‘all decorative finished within a lot, including but not limited to … paintwork’ were something strata owners were responsible for instead of the strata building.

So, the strata owner applied for an NCAT order that the strata building do the painting work but did not claim damages or compensation for the cost of painting, under section 106(5) of the Strata Schemes Management Act 2015.

The primary 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.

In making its decision the NCAT Appeal Panel, reviewed the common property memorandum, the by law and strata laws , as well as the decision in Vickery v The Owners – Strata Plan No 80412 [2020] NSWCA 284 and concluded.

Firstly, that damages claims under section 106(5) of the Strata Schemes Management Act 2015 do not preclude NCAT from making work orders instead of damages only …

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Keywords

#NSW #NCATAppealPanel #damages #ceilings #painting #commonpropertymemorandum #damages #workorder #2021 #SSMA2015 #s106(5) #s232