Close, but no cigar: a breach by an Owners Corporation but no work orders entered

In the recent decision of Baker v The Owners – Strata Plan No. 9348 [2024] NSWCATAP 180, the NCAT Appeal Panel dismissed an appellant seeking work orders. This case demonstrates where there is a breach by an owners corporation, NCAT is not compelled to enter work orders. If work orders are what is being sought, an applicant should be prepared to propose with specific orders.

NCAT complaint

Myrtle Herbert William Baker applied to NCAT for orders requiring the defendant Owners Corporation to repair common property, specifically the balcony of her unit. The primary complaint was the deterioration of the balcony’s paintwork.

Ms Baker claimed that the Owners Corporation had breached its duty to repair and maintain the common property under section 106 of the Strata Schemes Management Act 2015 (NSW) (SSMA), specifically the paintwork on her balcony. NCAT acknowledged there had been a breach of section 106 but declined to order the Owners Corporation to carry out the repairs because Ms Baker failed to provide specific evidence on what work was necessary.

NCAT found that Ms Baker did not present a scope of work or detailed evidence showing what repairs were needed to fix the cracks or deterioration. Without sufficient detail, NCAT could not issue a repair order, as it would be too vague and non-specific (see Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425 at [114]).

NCAT has broad discretion under sections 230 and 232 of the SSMA to make orders based on the facts of each case. Here, the Tribunal decided that the minor nature of the deterioration (cracking of paint – not impact to structural integrity) did not warrant immediate repairs.

Ms Baker sought leave to appeal the decision to the NCAT Appeal Panel.

Appeal

Leave to appeal was refused, and the appeal was dismissed. The Appeal Panel found no error in the original exercise of discretion regarding the decision not to order repairs

Ms Baker had failed to present sufficient evidence detailing the scope of work necessary to remedy the defects. The Appeal Panel stated that an order for repairs cannot be made without clear evidence or specifics on the required work. This was not an appealable error but a failure by the appellant to meet the evidentiary burden.

Additionally, the Appeal Panel agreed that the deterioration was minor and did not justify immediate repairs.

Key takeaway

This decision serves as a timely reminder that, despite a finding of breach of the SSMA, an Owners Corporation may not be required to carry out repairs.