A recent decision of the Federal Court of Australia has highlighted the importance of making all relevant disclosures in the course of applying for an insurance policy, and the repercussions that the withholding of such disclosures may have on the enforceability of the policy.
Delor Vue Apartments were built in 2008-2009 in Queensland, and following completion, building defects relating to falling eaves, were identified posing a significant health and safety risk due to the potential for injury. Rectification works commenced to address the defects.
During the course of the rectification work, the Body Corporate (the QLD equivalent of an Owners Corporation) engaged a broker to enter into an insurance policy for property damage and public liability. Throughout the application process, the broker made the Body Corporate generally aware of their duty of disclosure, however the Body Corporate was not asked, nor did it disclose that the building contained defects that were in the process of being repaired.
The policy was issued and commenced 23 March 2017. On 28 March 2017, Tropical Cyclone Debbie struck, causing significant roof damage to the building, damage which the Body Corporate proceeded to claim under their insurance policy. In the course of the claim, the Body Corporate complied with the insurance investigation, including providing copies of all prior reports and investigations into the roofing defects. The insurer initially flagged that non-disclosure issues may apply, however on 9 May 2017, the insurer informed the Body Corporate that it would honour the claim, despite the presence of the non-disclosure issue, whilst outlining its intention to rely on policy exclusions to exclude cover for components of loss relating to the rectification works.
The Body Corporate and the insurer each obtained engineering and building reports to determine the scope of works required to rectify the damage and to determine which work would be paid for by each party. As a result of these reports, more extensive defects were discovered, leading to a disagreement between the parties as to the scope of works and subsequent payment required. The Body Corporate sought clarification from the insurer as to the terms of their coverage claiming that the insurer was handling the claim in contradiction to the code of practice and the duty of good faith. The insurer offered to pay $900,000 of the damage, excluding $3.5m of damage deemed to be a result of the pre-existing defects to settle the claim, stipulating a timeframe for acceptance, after which they would proceed to reduce their liability on the basis of the non-disclosures.
The Court held that a reasonable person in the Body Corporate’s position would have known that a prospective insurer would have been interested in being made aware of the existing defects when considering the policy and that in failing to make the disclosure they were in breach of the Insurance Contracts Act Cth. It was held that the insurer was entitled to rely on the non-disclosure to reduce its liability, however this entitlement was waived by the insurer in emails with the Body Corporate and they therefore were prevented from retracting this waiver and reducing their liability.
This decision highlights the importance of making all relevant disclosures in the course of applying for insurance policies and the ability for insurers to be held to their interim decisions, such as waiving non-disclosure issues, if they seek to later retract such decisions.
Article  by Zachary Sie and Allison Benson.

Sections 19(2) to 19(4) of the Strata Schemes Management Act 2015 (the Act) deal with qualified requests. A request is a qualified request if it is made by one or more owners of a lot or lots in the strata scheme which have a total unit entitlement of at least one-quarter of the aggregate unit entitlements.
This means that if you hold 25% of the unit entitlement in the scheme or have obtained the support of lot owners that make up 25% of the unit entitlement in the scheme, you can make a written request to the secretary of the owners corporation to convene an extraordinary general meeting rather than wait for your scheme’s next annual general meeting.
Section 19(2) of the Act provides that an extraordinary general meeting must be convened within 14 days of receiving a qualified request.
If you have made a qualified request but the owners corporation fails to convene an extraordinary general meeting, section 20 of the Act provides that you can make an application to the NSW Civil and Administrative Tribunal (NCAT) for an order that the extraordinary general meeting be convened.
If you make a qualified request the owners corporation cannot charge you for the cost of organising and holding the extraordinary general meeting. This is because the Act provides that an extraordinary general meeting must be convened when a qualified request is made and by convening the extraordinary general meeting the owners corporation is simply discharging its duties as required by the Act.
This can be distinguished from section 19(1) of the Act which is the other way an extraordinary general meeting can be convened. The section provides that the secretary or a strata committee of an owners corporation may convene an extraordinary general meeting of the owners corporation at any time. The convening of this type of extraordinary general meeting is at the discretion of the secretary or a strata committee. If you make a request for the secretary or a strata committee to convene a meeting and your item is the only substantive one on the agenda, for example, you need a by-law passed to authorise works to your lot, the secretary or a strata committee may require you to pay the costs of organising and holding the extraordinary general meeting before they agree to exercise their discretion to convene the extraordinary general meeting.
Article by Jasmin H. Singh and Allison Benson.

On 23 July 2020 the Standing Committee on Economic Development and Tourism tabled its report on the Inquiry into Building Quality and made 48 recommendations (see https://www.parliament.act.gov.au/__data/assets/pdf_file/0011/1605368/9th-EDT-09-Inquiry-into-Building-Quality.pdf).
The Committee has made recommendations in the following areas:

The approach of the regulator;
Consumer advice and protection;
Contracts and dispute resolution;
Licensing of participants in the building industry;
Certification; and
Defect rectification.

The Committee received 103 submissions and heard from 52 witnesses.
Kerin Benson Lawyers prepared and lodged a lengthy submission to this Inquiry which is referenced on numerous occasions in the report.

The applicants are unit owners in the respondent’s strata complex consisting of 88 class A units, 84 of which have an entry way comprising a floor to ceiling combined window/door (the window/door). On the upper levels the window/door opens onto a balcony, and on the lower levels it opens onto a small porch that in turn leads to the common area. The balcony for each unit is a designated subsidiary of the units plan.
Due to moisture damage to the cedar timber frames of the window/door caused by condensation, on 24 December 2018 two motions were passed. Motion 1 stated that the respondent was not responsible for maintaining the window/door adjoining the unit balcony and motion 2 stated that an individual owner who replaces the window/door with a different configuration to the original must obtain express permission from the respondent in accordance with its rules as such change was considered to be a structural alteration.
The applicants sought a review of these two motions.
Who is responsible for maintaining the balcony window/door – the owners corporation or individual owners?
ACAT was of the view that the respondent will only have responsibility for the maintenance of the window/doors if: (a) the window/door is a load-bearing wall (it was not); or (b) the window/door is part of the balcony (it was not – ACAT stated that ‘balcony’ includes the platform and the railings on it but not the door leading onto the platform); or (c) the window/door is common property.
On the issue of common property, section 15 of the Unit Titles Act 2001 (UTA) states that if a class A unit is bounded by an external wall of the unit, then the boundary lies along the centre of the wall and the outside half of the boundary is common property. This means that the window/door will be common property if it is considered to be an ‘external wall of the building’. Following this, the Tribunal firstly ruled that the solid glass window/door encloses the unit and effectively operates in the same manner as a stone or brick wall thus can be considered as a ‘wall’. ACAT held that there is an argument that the window/door is on the external wall of the structure.  However, the complicating factor is that they open not onto common property, but onto a unit subsidiary. In the case of the 42 units that have upper-level balconies, and the 16 units with rear-balconies, the window/door opens from the unit to the balcony, which is a designated unit subsidiary. Given at no point do the window/doors on balcony units border common property, those window/doors are not an exterior part of the building and are not the responsibility of the owners corporation.
Turning to the 16 ground floor units which are also bordered by a ‘unit subsidiary’. These window/doors do not adjoin common property, but are rather internal dividing walls between the unit and a unit subsidiary. Consequently, the maintenance for these is the obligation of the unit owner.
Accordingly, ACAT made no orders in relation to Motion 1 other than to note that the assertion that the window/doors are not walls may not be correct.
Can the owners corporation make rules about the replacement of the doors?
The applicants sought an order that motion 2 is void because the owner is not making a structural alternation or changing the configuration of the window/door adjoining the balcony so long as it is the same size as the original element.
The rules of the respondent required unit owners to obtain express permission from the owners corporation to erect or alter any structure in or on the unit or the common property.
ACAT held that it is certainly probable that installing a new door/window with a new configuration would be structural if it includes some interaction with the slab or the wall. However, it would not inevitably be the case. For example, the replacement of glass panels alone may not involve structural work.
Accordingly, to the extent that Motion 2 purports to ‘deem’ the replacement of the window/door to be a structural alteration, it is beyond power. Whether it is in fact a structural alteration is a question of fact to be decided in the circumstances of the case.
Accordingly, Motion 2 was repealed under section 129(f) of the UTMA.

This application was for review of a decision by the respondent on 22 March 2019 to make a rectification order pursuant to section 38 of the Construction Occupations (Licensing) Act 2004 (COLA) requiring the applicant to take certain stated actions to rectify building work done at premises in Bruce, ACT (premises).
The applicant raised a threshold issue whether, on the proper construction of section 35(3) of COLA, the rectification order made on 22 March 2019 was invalid because it was made more than 10 years after the day on which the ‘act that caused the contravention happened, or ended’, which the applicant claimed was a day that was earlier than 18 September 2008, when a certificate of occupancy was issued. The applicant’s position was that if the Tribunal was satisfied that the 10 year period had expired, the Tribunal should make an order under section 68(3) of the ACT Civil and Administrative Act 2008 (ACAT Act) setting aside the decision and substituting a decision not to make a rectification order on the grounds that the respondent had no jurisdiction to do so, without entering upon the merits of the decision.
The applicant acknowledged that its submissions were contrary to a decision of the Tribunal in Koundouris v Construction Occupations Registrar & Ors (Administrative Review) [2015] ACAT 92 (Koundouris) but submitted that the decision was wrong and that we should not follow it.
As it appeared that a preliminary question would dispose of this issue without the need for a full hearing on the merits, a preliminary question was formulated as follows: whether on the proper construction of section 35(3) of COLA when the respondent made the rectification order, the 10 year period mentioned in section 35(3) had expired such that the respondent had no power to make the order?
However, during the hearing of the preliminary question it became apparent that the answer to the preliminary question would not have any relevance to the outcome of the hearing.
In short, the limitation on the registrar’s power to make a rectification order arises if, and only if, two conditions are met: first, that “a submission is made” and second, that the “submission … satisfies the registrar” that the act that caused the contravention happened, or ended, more than 10 years before the relevant day. The ‘submission’ referred to in section 35(3) is the “submission made within the time mentioned in the notice” referred to in section 35(1)(c).
ACAT was satisfied that, on the proper construction of section 35(3) and in circumstances where it is conceded by the applicant that no submission was made to the respondent about the expiry of the 10 year period, either within the five day period for submissions stated in the section 34 notice or within any extension of that period granted subsequently:

the respondent was not required to consider the issue whether the 10 year period had expired before deciding to make a rectification order; and
the issue whether the 10 year period had expired does not arise on the merits review of the respondent’s decision to make the rectification order.

In those circumstances, the registrar’s power to make an order under section 38 is unconstrained by any considerations relating to the time at which the contravention happened, or ended. The time at which the act that caused the contravention happened, or ended, is an irrelevant consideration.
ACAT then decided that, in circumstances where the preliminary question raised issues of statutory construction that, although irrelevant to this application, were likely to be of wider importance (including to the respondent in administering its powers in respect to the making of rectification orders) and the issues had been fully argued, it would be both useful and appropriate to provide an answer to the preliminary question.
The preliminary question raises two issues. First, when did the 10 year period in section 35(3) of COLA commence? Second, when did the 10 year period end? The first issue required ACAT to identify the day when the ‘act that caused the contravention happened, or ended’, which is partly a question of statutory construction and partly a question of fact. The second issue required ACAT to identify the ‘day the registrar proposes to make the order’, which is purely a question of statutory construction.
Ultimately ACAT held that the relevant ‘act that caused the contravention’ in this case was the failure of the applicant, at all material times up to and including the date on which the respondent issued the certificate of occupancy, to carry out building work in accordance with the requirements of section 42 to achieve compliance with the performance requirements in clauses BP1.1, FP1.3 and FP1.4 of BCA 2006.
For the purposes of answering the preliminary question in this case, ACAT found that the act that caused the contravention ended on 18 September 2018 when the respondent issued the certificate of occupancy.
On the second issue ACAT held that section 35(3) can work only if the ‘day on which the registrar proposes to make the order’ is a day that the licensee, in receipt of the section 34 notice, can identify at the time it receives the notice. The opportunity given by section 35(3) for the licensee to make a submission, within the time stated in the section 34 notice, to the effect that the registrar lacks power to make a rectification order because the 10 year period has expired, would be meaningless unless there is a certain end day against which the expiry of the period can be measured.
The day on which the section 34 notice is given to the licensee is that day. In this case, that happened on 7 September 2018. That was not more than 10 years after the day on which the act that caused the contravention ended, which ACAT found was 18 September 2008.

The latest research from UNSW’s City Futures Research Centre providing an update into strata and community title schemes has been released.
Some key NSW scheme facts:

There are 83,998 strata schemes registered in NSW
40% of strata schemes were registered since 2000
Approximately 1.1 million people live in strata schemes in NSW
Of the lots in strata schemes:

48% of people living in them are renting;
13% own their lot outright,
16% own their lot but have a mortgage;
11% of lots are unoccupied; and
A further 12% of lots could not be categorised into any of the above.

In terms of the ages of people in our strata lots:

16% of residents are under 20 years
48% of residents are between 20 – 39 years
21% of residents are between 40 – 59 years; and
15% of residents are over 60.

For those with an interest in seeing the increase in strata and community titles over time, this link shows strata development over time: https://cityfutures.be.unsw.edu.au/cityviz/strata-schemes-australia-new-zealand/

What strata owners should expect from their strata managers and what services are and are not included as part of a strata manager’s duties can be a heated topic.
The Acts dealing with a strata manager’s functions are analysed below.
Under section 3 of the Property and Stock Agents Act 2002 (formerly known as the Property Stock & Business Agents Act 2002), strata managers are included in the definition of “agents” and under section 4C of the Property and Stock Agents Regulation 2014 strata managers may exercise the following functions:
“(1)  A strata managing agent who holds a class 1 or class 2 licence may exercise all strata managing agent functions.
(2)  Despite subclause (1), a strata managing agent may not authorise the withdrawal of money from a trust account unless the strata managing agent is the licensee in charge of the business to which the trust account relates.”
Section 52 of the Strata Schemes Management Act 2015 provides that:
“(1)  An owners corporation may, by the instrument appointing a strata managing agent or some other instrument, delegate to the strata managing agent—
(a)  all of its functions, or
(b)  any one or more of its functions specified in the instrument, or
(c)  all of its functions except those specified in the instrument.
(2)  An owners corporation must not delegate to a strata managing agent its power to make—
(a)  a delegation under this section, or
(b)  a decision on a matter that is required to be decided by the owners corporation, or
(c)  a determination relating to the levying or payment of contributions.”
This means that unless the strata management agreement restricts the strata manager, they may be delegated power to make decisions that are not required to be resolve, specially resolved or unanimously resolved by the owners corporation at a general meeting. Some common examples of decisions that must be made by the owners corporation at general meeting are:

setting contributions to the administrative or capital works fund;
amending or adding to the by-laws for the scheme;
approving additions or alterations to the common property;
approving a lease of part of the common property.

Section 54 further specifies that a strata manager may exercise the Strata Committee’s functions:
“(1)  The instrument of appointment of a strata managing agent may provide that the strata managing agent has and may exercise all the functions of the chairperson, secretary, treasurer or strata committee of an owners corporation or the functions of those officers or the strata committee specified in the instrument.
(2)  However, the chairperson, secretary, treasurer and strata committee of an owners corporation may continue to exercise all or any of the functions that the strata managing agent is authorised to exercise…”
The role of a strata manager is therefore, that of a “facilitator” of the activities and duties of an owners corporation; a strata manager can represent the owners however they cannot make decisions on behalf of the owners corporation. The exception to this is if they have been delegated power by the owners corporation when they are appointed to approve and pay expenses (generally only a minor amount) on its behalf. In which case, the strata manager exercises their delegated authority to approve and pay the expense.
For a more specific description of a strata manager’s responsibilities, you should refer to the strata management agreement with your owners corporation.
The agreement will usually detail the basic functions of a strata manager included in the yearly fee payable by the owners corporation to the strata managing firm (Schedule “A” fees); the agreement will also include the additional services that could be provided by a strata manager at additional costs for the owners corporation (these are often known as Schedule “B” fees). Examples of additional services that a strata manager may provide at additional cost include dealing with third parties, such as lawyers and local authorities, in connection with redevelopment/sale of common property and acting for the owners corporation in the NSW Civil & Administrative Tribunal.
If you are in doubt as to what your strata manager can and cannot do for you, we suggest that you contact your strata manager and obtain a copy of the agency agreement.
Article by Michela Alesse and Allison Benson.

In Morgan-Jones & Ufert v The Owners Strata Plan No 15599 [2019] NSWCATAP 187, the applicants, who owned a lot in the scheme, sought to challenge two of the scheme’s by-laws under section 150 of the Strata Schemes Management Act 2015 while the scheme was under compulsory management.
The tribunal at first instance dismissed the application on the grounds that the lot owners did not have standing to bring the application while the scheme was under compulsory management and the compulsory strata manager had full powers of governance of the owners corporation and the strata committee. Those full governance powers were the terms on which the appellants had successfully obtained the appointment of the compulsory strata manager for a defined term in earlier proceedings.
The primary member stated that such broad powers removed the power of lot owners to vote on a by-law because there was no requirement for the compulsory strata manager to put a proposal to such a vote of lot owners, and section 150 of the Strata Schemes Management Act 2015 gave standing only to those entitled to vote on the challenged by-law.
The appeal panel agreed with the findings of the primary member that the appellants had no standing to bring an application to challenge two of the scheme’s by-laws under section 150 of the Strata Schemes Management Act 2015 while the scheme was under compulsory management with the powers of the owners corporation and the strata committee.
Article by Jasmin H. Singh and Allison Benson.

On 30 April 2020, sections 3 and 111 of the Unit Titles Legislation Amendment Act 2020 and the Unit Titles (Management) Amendment Regulation 2020 (No 1) commenced. The combined effect of the above is that an owners corporation and the executive committee of an owners corporation are exempt from any requirement in the Unit Titles (Management) Act, schedule 2 or schedule 3, that requires members of the owners corporation or the executive committee to be physically present at a meeting of the owners corporation or executive committee.
This amendment applies to an owners corporation and the executive committee of an owners corporation during the public health emergency declaration period. The public health emergency declaration period ends on the day the Public Health (Emergency) Declaration 2020 (No 1) ends.
The Public Health (Emergency) Declaration 2020 (No 1) was originally scheduled to end on 7 July 2020. On 3 July 2020, this period has been extended for another 45 days, ending on 21 August 2020 by the Public Health (Emergency) Declaration Further Extension 2020 (No 10). This means that the members of the owners corporation or the executive committee will not need to be physically present at a meeting of the owners corporation or executive committee.

The plaintiff was the owner of an apartment spanning part of the top two floors of the Nishi Residential Building. At various intervals throughout the day and night, the plaintiff argued that the expansion and contraction of the roof and walls of the building created a noise in her apartment at an unacceptable level which caused, and continues to cause, a nuisance.
The plaintiff sued the owners corporation in nuisance alleging that although the owners corporation did not create the noise that constitutes the nuisance, it has since adopted or continued the nuisance through its knowledge of the noise since at least November 2014, and the failure to do anything effective (or anything at all) to abate it.
The three key issues dealt with by the Court were:

was there a nuisance which was actionable by the plaintiff?

After considering the plaintiff’s lay evidence, the plaintiff’s expert acoustic evidence and the evidence of three structural engineers, the Court was satisfied that there was, and continues to be, a nuisance in the form of structure-borne noise heard in the plaintiff’s apartment, which was substantial enough to constitute an unreasonable interference with the plaintiff’s enjoyment of the apartment, or her rights in connection with the apartment.

whether the owners corporation has continued or adopted the nuisance?

After reviewing the history of action or inaction taken by the owners corporation, the Court held that there were four key difficulties with the conduct of the owners corporation being:

the failure to accept that the noise level was sufficient to constitute a nuisance. Indeed, notwithstanding all the advice it had received and evidence served by the plaintiff, the owners corporation went to trial on a pleading that did not admit that there was any noise problem that was serious enough to constitute a nuisance;
for at least a year, the owners corporation pursued a course of attempting to have third parties (such as the developer or builder) take responsibility for any remediation works;
the failure to implement the resolutions passed at AGMs, each of which would have resulted in some progress towards abating the noise; and
the delay in implementing a solution generally.

whether the plaintiff is entitled to the relief she seeks including:

whether the plaintiff has suffered or will suffer damage as a result of the nuisance, such as to be entitled to compensatory damages?

The Court held that damages were a partial but not an adequate remedy and as such, an injunction was granted (as well as damages in the sum of $20,651.75 plus $3,678.01 interest).

whether injunctive relief should be granted and if so, in what terms; and

The Court held that the injury suffered by the plaintiff was not capable of being estimated in money and would not be adequately compensated by a small monetary payment. Moreover, the grant of an injunction was not oppressive to the owners corporation, as it has the ability to raise a large amount of money over a period of time to pay for the works required.
An injunction was granted restraining the owners corporation from continuing to permit the structure-borne noise arising in the plaintiff’s apartment and to take such measures as may be necessary to preclude the noise occurring in the apartment. This injunction was stayed for 12 months pending the implementation of a system by the owners corporation which effectively reduces the thermal load on the roof.

whether aggravated damages should be awarded.

Aggravated damages compensate the plaintiff when the harm done by a wrongful act was aggravated by the manner in which the act was done. Aggravated damages should be distinguished from exemplary damages which are intended to punish the defendant and serve one or more of the objects of punishment – moral retribution or deterrence. The focus of aggravated damages is compensatory and consideration is given as to whether the tortious conduct was aggravated. The focus of exemplary damages is punitive.
In determining whether aggravated damages should be awarded the Court gave consideration to the executive committee code of conduct and whether the executive committee acted in the best interests of the owners corporation, did not disclose conflicts of interest when making decisions relating to nuisance and made decisions relating to the nuisance despite having actual or perceived conflicts of interest.
After some lengthy consideration of the various issues, the Court was not satisfied that the conduct of the owners corporation was so high as to warrant aggravated damages.
This decision serves as a warning to owners and strata managers alike that Courts and tribunals will not permit lengthy delays by owners corporations in addressing owner concerns. The decision not to award aggravated damages was a ‘close run’ thing and such delays are unfortunately all too common in the conduct of owners corporations.
Finally, it should be noted that the owners corporation has appealed this decision.

The respondent was the owner of a unit and the applicant was the owners corporation of the units plan. The respondent owed a debt of $18,472.31 in levy arrears.
The applicant took steps to recover the debt and subsequently, levy recovery proceedings were commenced in ACAT. The applicant claimed an amount comprising: (a) levies; (b) legal expenses (including a fee for preparing a letter of demand; preparing and filing the original application; attending compulsory conferences; preparing for and appearing at an interim order application and preparing and filing submissions); (c) administrative expenses related to debt recovery; and (d) interest.
The respondent initially disputed the levy amount claimed and disputed the reasonableness and necessity of the legal and administrative expenses incurred by the applicant. The respondent argued that under section 31 of the Unit Titles (Management) Act (the Act), the initial filing of the application and the cost of the conference were the only lawful costs and the other items were unreasonable and unnecessary.
Section 31 of the Act provides if an owners corporation for a units plan has incurred an expense necessary in carrying out its functions because of a breach of the rules by a member of the corporation, the amount spent is recoverable by the owners corporation from the member as a debt. ‘Expense’ includes a reasonable legal expense reasonably incurred, including those related to a proceeding in ACAT.
ACAT applied the principles set out in The Owners – Unit Plan No 3182 v Black and Anor [2018] ACAT 6 which held that reasonable legal professional costs and disbursements, company title and similar searches, filing and hearing fees, and administrative costs (such as charges for the managing agent) suffered in bringing proceedings to recover unpaid levies are ‘expenses’ for the purposes of section 31 of the Act. The expenses claimed fell within the type of expenses outlined (with one exception) and satisfied the ‘double reasonableness’ test: the expenses were reasonably incurred in the collection of the unpaid levies and the amounts claimed were reasonable. However, ACAT held that the applicant was not able to recover the costs associated with the interim application to move the hearing date forward or issue subpoenas because these actions were due to the applicants own inefficiency or mistake.

The applicants were the owners of a unit in Units Plan 3488. One morning when the applicants were not present in the unit, a hose connected to the mains in the toilet cistern broke and water flowed out of the cistern into the apartment and into the common property in the hallway.  There was consequent damage. The respondent owners corporation met the expense of cleaning the common property carpet and sought reimbursement from the applicants. Since the applicants were selling the unit, they reimbursed the respondent under protest and brought the proceedings to recover the payment to the respondent.
The applicants’ case was, as the cistern was reasonably new and was apparently in good working order, the cause of the bursting pipe could not be established and the applicants had taken all reasonable care in the circumstances. The position of the respondent was that the applicants as an owner of an apartment are responsible for the fittings or appliances in the apartment and although the event that occurred was not reasonably foreseeable, the applicants were the only persons in control of the apartment and consequently they were responsible for the leak. As an alternative, the respondent suggested that the applicants were negligent in that they did not turn off the water supply to the cistern when leaving the apartment.
Section 31 of the Unit Titles (Management) Act enables the respondent to recover the costs of repair from a unit owner who has willfully or negligently caused damage. This entitlement did not, however, extend to the type of faultless liability or absolute liability proposed by the respondent. Section 31 is consonant with the common law situation, with the High Court abandoning earlier notions of strict liability and applying familiar principles of negligence as the basis for liability.
As to the alternate submission of the respondent that the applicants were negligent in not turning off the water supply to the cistern when leaving home, ACAT held that there may be a period of time after which community standards and expectations may be breached if the water is not turned off in anticipation of an extended period of vacancy. However it was not necessary to define the dividing line between what is reasonable and unreasonable since the period involved in this case was well within the limits of reasonableness.
Therefore, in the absence of negligence on the part of the applicants, the respondent was not entitled to seek to recover the costs of cleaning the common property. The applicants paid under protest and are entitled to an order for payment of the amounts paid to the respondent.

In the recent decision of the Appeal Panel of the NSW Civil & Administrative Tribunal (NCAT) in Andelman v Small [2020] NSWCATAP 32, the Appeal Panel considered the provisions of by-law 14 requiring all floor spaces except kitchens, laundries, toilets and bathrooms are covered or otherwise treated to the extent sufficient to prevent that transmission from the floor space of noise likely to disturb the peaceful enjoyment of the occupant of another lot. In the case the owner of the lot below was complaining of noise for the lot above.
 
The Appeal Panel reiterated that the test under by-law 14 “is whether the noise being transmitted is “likely to disturb the peaceful enjoyment” of the lot beneath, not whether the noise is “normal living noise”, or “excessive” or caused by high heels or bouncing balls.” The test is objective. This does not mean that subjective evidence, such as evidence of the occupant, will not be considered by the Tribunal., it just means that the Tribunal then had to consider objectively whether by-law 14 was breached.  While expert testing had not been conducted in the upstairs lot the expert had provided evidence as to the noise levels. While the expert’s evidence was not considered “as weighty” as a report following testing using his equipment and expertise his observations, together with the evidence of the lot owner and the former tenant was sufficient to establish that the noise was sufficient particularly where the actions of the upstairs lot owner had prevented the expert conducting tests.
 
Lessons to be taken from this case are that the subjective evidence can establish a breach of the objective test and that what is sufficient evidence will vary from case to case.
 
If you have a noise issue start documenting the times, dates, duration and type of the noise and where it can be heard from and seek legal advice.

Thanks to the Strata Schemes Management Amendment (COVID-19) Regulation 2020 and the new section 271A of Strata Schemes Management Act 2020  and the Community Lands Amendment (COVID-19) Regulations 20202 and the new section 122A of the Community Lands Management Act 1989  it has become easier for strata schemes and community title schemes to hold meetings and to sign documents. The key provisions are:
Meetings & notices

Notices can be sent electronically for both strata and community title schemes.
Electronic voting now applies to owners corporation’s regardless of whether owners corporation resolved to adopt it and to community title schemes but secretary must take reasonable steps to ensure each member can participate and vote at the relevant meeting
The scheme cannot use pre-meeting electronic voting for an election
First Annual General Meetings can now be held up to six months after the expiry of the initial period.

Signing documents:

Video conferencing can be used to witness affixing of the seal or, as an alternative to affixing the seal, witnesses can sign and date the agreement instead.

Loans between funds

A scheme can borrow monies from one of its funds, for instance from the capital works fund, for the purposes of another fund, for instance its administrative fund for a longer period. Previously, the loan could be for 3 months, now it may be for 6 months.

The regulations are limited in time. To ensure that they are properly used we recommend you seek legal advice.

On 30 April 2020 sections 3 and 111 of the Unit Titles Legislation Amendment Act 2020 commenced (the remaining provisions of the Unit Titles Legislation Amendment Act 2020 will commence on 1 November 2020) and the Unit Titles (Management) Amendment Regulation 2020 (No 1) commenced.
The combined effect of the above is that an owners corporation and the executive committee of an owners corporation are exempt from any requirement in the Unit Titles (Management) Act, schedule 2 or schedule 3, that requires members of the owners corporation or the executive committee to be physically present at a meeting of the owners corporation or executive committee.
This amendment applies to an owners corporation and the executive committee of an owners corporation during the public health emergency declaration period. The public health emergency declaration period ends on the day the Public Health (Emergency) Declaration 2020 (No 1) ends.
Presently, the Public Health (Emergency) Declaration 2020 (No 1) is scheduled to end on 7 July 2020 (although it could be extended by the ACT Government).
This deadline creates a problem as, currently, from 7 July 2020 (until at least 1 November 2020), members of the owners corporation or the executive committee will need to be physically present at a meeting of the owners corporation or executive committee.
The requirement of being physically present during meetings will make compliance with social distancing rules difficult. Therefore, the ACT Government needs to either relax the social distancing rules or extend the public health emergency declaration period otherwise units plan owners in the ACT will find themselves in breach of the law (in one form or the other).
We understand that SCA (ACT) will shortly make representations to the ACT Government to extend the public health emergency declaration period.

One of the many questions that is, or will soon be, on the minds of owners corporations and strata managing agents is how documents or agreements will be signed during the COVID-19 pandemic in light of the above order.

This article is an update on an article written by Allison Benson on short-term letting on 2 April 2020.

We recently wrote an article about the changes to legislation which enabled an amendment to be made to the regulations imposed upon witnessing documents. The good news is that changes to the regulations were enacted on 22 April 2020, through the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020. This effect of this amendment […]

Lock boxes are boxes that are installed on common property within the strata scheme so that keys or passes to access the building or lots can be stored in them. The purpose of installing a lock box for welfare access is to enable emergency services, such as the police, fire brigade and ambulance, and potentially […]

With many professionals currently adapting to working from home and engaging in online meetings with their clients, it is essential to understand that some prohibitions apply to meetings conducted in person as well as to meetings conducted by electronic means (such as Zoom, Google Hangout, etc..). A strata manager, for instance, may want to record […]