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NSW: Time Limitations in Damages Claims for Failure to Maintain and Repair the Common Property: an Update

TIME LIMITATIONS IN DAMAGES CLAIMS

This article clarifying time limitations in damages claims for failure to maintain and repair the common property has been supplied by Allison Benson, Kerin Benson Lawyers.

An Owners Corporation has a strict duty to maintain and repair its common property under section 106(1) of the Strata Schemes Management Act 2015. This is uncontroversial. What has been heavily argued since the 2015 legislative reforms commenced has been the limits of the new provisions in section 106(5) and (6) of the Strata Schemes Management Act 2015. These are the provisions providing a right for a lot owner to recover damages from their owners corporation where the owners corporation has breached its duty to maintain and repair its common property provided lot owners make a claim within two years of becoming aware of their loss.

As a quick recap there were a number of conflicting decisions in the NSW Civil & Administrative Tribunal (NCAT) and its Appeal Panel as to whether the NCAT had the power to award damages under these sections, whether the right to recover damages was retrospective and when the two year limitation period commenced.

The NSW Court of Appeal in Vickery v The Owners – Strata Plan No. 80412 [2020] NSWCA 284 in late 2020 confirmed that NCAT has the power to award damages to a lot owner under section 106(6). The Court of Appeal then remitted the remaining questions back to the NCAT Appeal Panel for determination.

On 21 April 2021 the Appeal Panel in The Owners – Strata Plan No 80412 v Vickery [2021] NSWCATAP 98 held that:

Allison Benson Kerin Benson Lawyers E: allison@kerinbensonlawyers.com.au P: 02 4032 7990

Please note: This is not intended to be legal advice. You should seek legal advice specific to your situation.

This post appears in Strata News #472.

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This article has been republished with permission from the author and first appeared on the THOUGHTS FROM A STRATA LAWYER … website.

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