Introduction

An owners corporation’s strict duty to repair common property under Section 106 is clear. However, disputes often arise when the owners corporation proposes inadequate, “band-aid” repairs instead of a proper, compliant solution. This can force a lot owner into a costly legal battle. So what happens when an owners corporation loses that battle and then tries to fight the decision again?

In this case study, we take a look at a key NCAT Appeal Panel case, The Owners-Strata Plan No 79633 v Graorovska [2022] NSWCATAP 152. In this case, a lot owner, represented by PBL Law Group, successfully defended an appeal, securing comprehensive repair orders and a costs order against the non-compliant owners corporation.

The Facts

The dispute was a long-standing one involving a long history of water ingress and multiple common property defects. The lot owner’s apartment suffered from a non-compliant bathroom installation, a deteriorating timber deck, and faulty flooring caused by the owners corporation’s own partial works.

At the initial NCAT hearing, the owners corporation argued for superficial repairs, such as using a ‘Megasealed’ sealant for the ensuite and applying Villaboard over existing tiles in the bathroom. The lot owner, relying on expert evidence secured by PBL Law Group, argued these methods were non-compliant, and that full replacements were necessary.

The Problem

The owners corporation had comprehensively lost at the first hearing. The Tribunal preferred the lot owner’s expert, Mr. Coombes, over the owners corporation’s “desktop review” expert. The Tribunal rejected the “band-aid” fixes and ordered a full replacement of the bathroom and ensuite. It also found the owners corporation breached its duty regarding the deck (ruling the owner’s coating was “beneficial”) and ordered its full replacement.

Instead of complying with these clear orders, the owners corporation appealed the decision to the NCAT Appeal Panel. The owners corporation claimed it was denied procedural fairness due to AVL technical difficulties and that the Tribunal’s decision was against the weight of evidence. This left the lot owner facing another legal battle to get her apartment fixed.

Application to the Appeal Panel

The owner, represented by PBL Law Group, defended the appeal. Our team argued that the owners corporation’s appeal grounds “lacked substance” and were “manifestly weak,” as later noted by the Appeal Panel.

We submitted that the original Member had acted professionally and was entirely correct to prefer the detailed, on-site evidence of the lot owner’s expert over the conflicting “desktop” opinion. We successfully argued that the owners corporation’s claims of procedural unfairness were unfounded, as they failed to demonstrate any “practical injustice” and had not even raised the issues at the hearing.

The Decision

The NCAT Appeal Panel published its decision, dismissing the owners corporation’s appeal in its entirety.

The Appeal Panel found no denial of procedural fairness, stating the original Member conducted the hearing in a “scrupulously fair, professional, and efficient manner.” It firmly rejected the “weight of evidence” argument, finding the owners corporation had misinterpreted the expert reports and that the Tribunal’s decision to prefer Mr. Coombes was “logical and orthodox.”

The original, comprehensive repair orders were upheld, and the owners corporation’s appeal against the costs order was also dismissed.

Conclusion

The case shows that a lot owner, backed by robust expert evidence, can successfully challenge an owners corporation’s inadequate repair methods.

The case shows that the Tribunal and Appeal Panel will enforce the strict duty under Section 106, preferring comprehensive, compliant repairs over cheaper, superficial fixes. This successful outcome, secured by PBL Law Group, safeguards the position of lot owners, confirming that a weak appeal will be dismissed. If you need to defend an appeal from an owners corporation, contact the expert Court of Appeal strata lawyers at PBL Law Group.