A recent decision from NCAT has provided clarity on whether it has authority to award costs to an owner who has suffered loss as a result of a failure of the Owners Corporation to repair and maintain the common property.
Owners cannot claim loss of rent and damages against the Owners Corporation at NCAT and must proceed to the Local, District or Supreme Court to make a claim in accordance with s106(5) of the SSMA. This is an interesting decision from the Appeal Panel at NCAT providing a firm decision on this long debated issue.
S106(5) provides that an Owner may recover from the Owners Corporation, for breach of duty (that is to repair and maintain the common property) any reasonable foreseeable loss suffered by the owner as a result. What has not been clear prior to this decision is if such a claim can be made at NCAT.
At first read, the decision may seem counterproductive, however, on longer consideration, this decision provides some protection for the Owners Corporation from frivolous claims.
On one hand, the Tribunal is there to support quick and cost effective solutions for strata disputes. On the other, matters heard before a court of competent jurisdiction require adherence to more stringent evidence/court rules. Costs orders at NCAT are not automated, as they are in a court.
The additional requirements and costs of a court application may cause owners to slow in their thinking to sue the Owners Corporation, without first ensuring their claim is with merit.
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