Event and Time
Event Description
- The Smiths purchased a unit in 2003 and subsequently leased it until August 2017 when it became vacant.
- Mr. Smith discovered damage to the magnesite flooring caused by water ingress when he replaced the carpet, prompting him to remove a significant part of the damaged flooring by October 5, 2017.
- The unit remained unoccupied since, leading the Smiths to claim damages for lost rental income.
Application and Claims
- The Smiths applied to the NSW Civil and Administrative Tribunal to obtain core samples of the common property slab and sought damages for lost rent from August 16, 2017, to January 31, 2021.
- They alleged that the owners corporation failed to maintain common property, contravening s 106(1) of the Strata Schemes Management Act (SSM Act).
Judicial Decisions
- The Magistrate dismissed the Smiths' summons with costs, concluding that they had not provided sufficient evidence to support their claims for loss of rent and that the owners corporation was not liable.
Dispute Points and Legal Basis
Dispute Points
- Smiths' Claims:
- Alleged that the loss of rent was the foreseeable consequence of the owners corporation's failure to maintain the common property, including the waterproof membrane. - Asserted the owners corporation's breach of s 106(1) of the SSM Act led to their loss.
- Owners Corporation's Defence:
- Claimed the Smiths were at fault for unauthorized works that damaged common property and for failing to maintain the balcony door. - Contended that the Smiths failed to mitigate their loss by not promptly notifying them of the defects and not renting the unit out while remediation was discussed.
- Evidence: