Appeal Panel clarifies scope and operation of NCAT’s jurisdiction to award damages to lot owners.
In Shum v The Owners Strata Plan No. 30621  NSWCATCD 68, a lot owner was awarded in excess of $55,000 damages for breach of the Owners Committee’s duty to repair and maintain common property. The 30 August 2017 decision was one of the first to decide applications taken under the then relatively new section 106 (5) of the SSMA 2015.
The OC appealed the decision challenging both the jurisdictional finding and whether an award of damages could operate retrospectively.
The Appeal Panel determined, in The Owners Strata Plan No. 30621 v Shum  NSWCATAP 15, that:
- a lot owner is entitled to recover reasonably foreseeable loss against an Owner’s Committee in consequence of a breach of s106,
- NCAT’s jurisdiction to award damages to a lot owner in these circumstances is under section 232,
- there is no monetary limit on the award of damages that can be made,
- the s106 obligation is ongoing and may give rise to multiple causes of action,
- the SSMA 2015 is not retrospective and as a result NCAT has no power to make orders either under s 62 of the prior SSMA or for damage suffered prior to 30 November 2016.
The finding as to retrospectivity resulted in a reduction in Mr Shum’s damages from $55,943.24 to $28,034.11.
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