The NSW Civil and Administrative Tribunal Appeal Panel has ordered a lot owner to remove unauthorised work which had been undertaken by a previous lot owner on the basis that:
“as he is the registered proprietor of his lot he is responsible for his lot and any unauthorised works on it”.
The decision at first instance
The owners corporation commenced proceedings against Mr Taylor seeking orders requiring him to carry out certain works involving removing personal property from the common property, removing unauthorised building work and to make good any damage arising from the repair work.
The unauthorised work which the owners corporation sought Mr Taylor remove included an air-conditioning unit, screening, bricks, tiles, bi-fold doors, a gate, materials added to a pergola to convert it to a roof, and pot plants.
Mr Taylor responded to the claim by arguing that he was not responsible for repairing unauthorised work done by a previous owner of the lot. He argued that the owners corporation has an obligation to restore the common property which had been altered by a previous owner of the lot.
The Tribunal found that the owners corporation has a duty to maintain the common property but that it was not responsible for the maintenance and repair of unauthorised work. The Tribunal found that the owners corporation does not have an obligation to restore the common property to its original condition on account of unauthorised work.
Mr Taylor appealed the decision.
The decision on appeal
On appeal Mr Taylor raised three arguments:
- The owners corporation did not commence its claim within a reasonable time.
- The Tribunal should have stayed the proceedings to allow the dispute to be resolved.
- Permission should be granted for Mr Taylor to retain the privacy screen.
Mr Taylor was not successful on appeal, as the Appeal Panel found that:
- There is no provision in the Strata Schemes Management Act 2015 which limits the time the owners corporation was to have made the claim against Mr Taylor.
- Section 14(1) of the Limitation Act 1969 does not apply to a statutory duty as such a duty is not a cause of action for damages, and therefore the Limitation Act 1969 does not limit the time for the owners corporation to commence the claim.
- While it may be correct as a matter of principle that the delay in making a claim may impact upon a defendant receiving a fair trial, it was not relevant in this case because Mr Taylor had ample evidence available to him to rely upon.
- Mr Taylor did not make an application to stay the proceedings or to retain the screen and while the Tribunal may provide some assistance to self-represented parties it will not run the party’s case for them because this would conflict with the role of the Tribunal as an impartial adjudicator.
- The evidence Mr Taylor produced supports his argument that he did not undertake the work and this argument is accepted however as the registered proprietor of the unit he is responsible for his lot and any unauthorised work on it.
Take away point
Purchasers of strata units should play close attention to whether the unit appears to have been renovated and should undertake a detailed review of the registered by-laws to ascertain whether authorisation was granted for renovations to the unit. If its appears that unauthorised work may have been undertaken enquires should be made with the vendor and potentially the strata manager or Secretary of the owners corporation.
This case note was prepared based upon the decision in Taylor v The Owners SP No 61285  NSWCATAP 270.
The information provided in this article is general information only and should not be relied upon as legal advice or be used as a substitute for obtaining legal advice. The specific circumstances relating to you impact upon your legal rights and obligations and personal legal advice based upon your circumstances should be obtained. This area of law changes frequently and the law may have changed after the time this article was prepared, up-to-date legal advice should be obtained. Please do not hesitate to contact Williamson Lawyers if we may be of assistance.