NSW Civil and Administrative Tribunal (NCAT) - Limits to NCAT’s Jurisdiction including Section_232 of Strata Schemes Management Act

02/06/2023

Since our previous articles in relation to jurisdiction of NCAT, there have been numerous cases which considered the extent of the jurisdiction of NCAT which have clarified to an extent, the Tribunal’s jurisdiction.

Section 232 of the Strata Schemes Management Act 2015 (“SSM Act”) provides authority for NCAT to make “orders to settle disputes or rectify complaints”. 

One important case relating to the Jurisdiction of NCAT, is the appeal from the NCAT Appeal Panel Decision by Mr Vickery in the case of Vickery v Owners Corporation Strata Plan 80413 to the New South Wales Supreme Court of Appeal.  In its decision on 11 November 2020, the New South Wales Supreme Court of Appeal allowed Mr Vickery’s appeal based on the Decisions of Basten JA and White JA who were in the majority.  Justice Lemming dissented.  The Supreme Court of Appeal decided that NCAT had power to award damages in favour of a Lot Owner in relation to a claim for damages under Section 106(5) of SSM Act.  Section 106(5) allows a claim (subject to limitations) by a Lot Owner who suffered damages as a result of the failure of the Owners Corporation to properly maintain common property, as required pursuant to Section 106(1) of the Strata Schemes Management Act 2015.

In Vickery’s case, damage to the Lot Owner’s property was a result of water ingress into the Lot as a result of the Owners Corporation’s failure to properly maintain the common property. 

The Supreme Court of Appeal held that Section 232 of Strata Schemes Management Act 2015 “confers jurisdiction and power upon NCAT to hear and determine a claim for damages under Section 106(5).”  If NCAT did not have jurisdiction, the case would have to be commenced in a Court such as the District Court of New South Wales or Supreme Court of New South Wales.

In the case of Coscuez International Pty Limited v Owners – Strata Plan 46433, the NCAT Appeal Panel considered the extent of Section 232 of SSM Act and on 9 May 2022 decided that there was no reason to confine the principles expressed in Vickery’s case by the Supreme Court of Appeal, to a breach of duty under Section 106(1) of SSM Act and not other breaches. 

In a further case of Silberstein v Strata Choice Pty Limited and Hecker Australia Pty Limited, the NCAT Appeal Panel considered the jurisdictional power of NCAT under Section 232 of SSM Act.  This case considered the Coscuez case and the Vickery case.

The Silberstein case involved proceedings against 7 parties including the Owners Corporation, the Strata Managing Agent and the Building Manager.  The Lot Owner claimed that Strata Manager and Building Manager were liable for damages for breach of common law duty of care to carry out their functions with due care, skill and diligence.  Originally the question arose as to whether NCAT had jurisdiction to hear the dispute.  At first instance NCAT decided that it had no jurisdiction to hear the common law claim against the Strata Manager and Building Manager.  The matter was appealed to the Appeal Panel of NCAT.  The Appeal Panel considered numerous decisions to which we refer to above including Coscuez case, and the Appeal Panel allowed the appeal and overturned the decision of the original Tribunal and determined that NCAT had jurisdiction to determine the issues. 

There are numerous other cases dealing with Section 232 of SSM Act and the powers associated thereto.  For example in the case of Quoranto Pty Limited v Goodman in 2022, the Appeal Panel decided that it had no power to alter contributions under a special levy payable by each of the Lot Owners pursuant to the power provided for in Section 232(1) of SSM Act. 

There are many other issues in relation to the jurisdiction of NCAT which we have considered in cases in which we have been involved.

One needs to carefully consider the jurisdiction of NCAT to hear a matter and if NCAT does not have jurisdiction, what alterative is available to the Lot Owners or Owners Corporation in relation to such matters.

In addition to considering NCAT’S jurisdiction, it is always critical to consider the limitation periods that apply to cases commenced in NCAT or a Court. 

If you are considering commencing proceedings involving an Owners Corporation or a Building dispute matter, our experienced Strata Lawyers and Building and Constructions Lawyers at Watson & Watson can assist you going forward.  Do not delay, please contact Richard Watson Senior Strata Lawyer and Principal or Shereen Da Gloria his Personal Assistant to discuss your matter and seek appropriate and timely advice sooner rather than later.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.