Recovering Strata Legal Costs & The Gelder Complexity Test

Introduction

A recent decision by the NSW Civil and Administrative Tribunal (NCAT) Appeal Panel has confirmed that former lot owners cannot sue their owners corporation for damages in NCAT, making it essential to understand the limits of the Tribunal’s jurisdiction. The ruling on the Griffinchuk No 1 Pty Ltd ATF Griffinchuk Family Trust v The Owners – Strata Plan No 92745 [2025] NSWCATAP 273, has significant implications for anyone involved in strata disputes that require legal advice, especially those considering legal action after selling their property.

Given the complexity of strata law and the impact of NCAT decisions, consulting a strata lawyer is crucial to ensure the correct legal pathway is chosen and your rights are protected. Seeking expert advice early can help both current and former owners avoid costly mistakes and secure the best possible outcome.

The Griffinchuk Case Decision Explained

Background of the Case

Disputes between lot owners and an owners corporation often arise from the latter’s failure to maintain and repair common property. A common scenario involves building defects in common property that lead to water ingress, causing significant damage to an individual lot.

In these situations, lot owners typically seek compensation from the owners corporation for the financial losses incurred. These claims for damages often include:

• Loss of rent if the property was tenanted and became uninhabitable.
• Alternate accommodation expenses when the owner is forced to move out.
• Costs to repair damage to the lot and personal belongings.
• Associated expenses such as legal costs and fees for expert reports.

The NCAT Appeal Panel’s Final Ruling

The definitive outcome of the Griffinchuk Family Trust v The Owners – Strata Plan No 92745, was a landmark decision by the NCAT Appeal Panel. The ruling confirmed that a person who has already sold their lot does not have legal standing to sue the owners corporation for damages in NCAT.

The Appeal Panel determined that at the time of filing the application, the applicant must be a current lot owner to be considered an “interested person” under the Strata Schemes Management Act 2015 (NSW). As the applicant in this case was a former owner, the Tribunal concluded it had no jurisdiction to hear the matter, and the application was dismissed.

This decision clarifies that while a former owner’s right to claim damages is not lost, they must pursue it in a court, not the Tribunal.

NCAT’s Jurisdictional Limits on Former Owners

Who is an Interested Person Under Strata Law

To make an application to NCAT regarding a strata dispute, a person must have legal standing. This standing is determined by whether they meet the definition of an “interested person” under the Strata Schemes Management Act 2015 (NSW).

Section 226 of the Strata Schemes Management Act 2015 (NSW) outlines the individuals and entities considered to be interested persons. These include:

• The owners corporation itself
• An officer of the owners corporation
• A strata managing agent for the scheme
• An owner of a lot in the scheme
• A person having an estate or interest in a lot or an occupier of a lot
• The lessor of the scheme, if it is a leasehold strata scheme

The law is specific about who qualifies for this status, making it essential to determine whether a party is an “interested person” before commencing proceedings.

Why the NCAT’s Jurisdiction for a Former Owner Fails After a Sale

The key legal reasoning in the decision centres on the definition of an “owner” within the Strata Schemes Management Act 2015 (NSW). This definition is critical because being an owner is one of the primary ways to qualify as an “interested person” with the right to apply to the Tribunal.

The Act defines an owner as the person “for the time being” recorded in the Register as being entitled to the lot. The NCAT Appeal Panel’s decision focused heavily on the interpretation of this phrase. It concluded that “for the time being” requires an applicant to be the registered lot owner at the specific time they commence proceedings in the Tribunal.

This interpretation means that the right to apply to NCAT is directly tied to current ownership. Once an owner sells their property, they are no longer the owner “for the time being.” Consequently, a former owner does not have the standing to initiate a new application against the owners corporation in NCAT, as this forum is not available to them after the sale.

Legal Pathways & Strategies for Owners

The Court Pathway for a Former Owner

The decision on the Griffinchuk Family Trust v The Owners – Strata Plan No 92745  clarifies that a former owner does not lose their right to seek damages from an owners corporation; however, the legal venue for such a claim changes. While NCAT is no longer an option after selling a property, a former owner can still pursue their claim in a court of law, such as the NSW Supreme Court.

This distinction is critical because the right to recover for losses suffered during the period of ownership is preserved. As confirmed in the Appeal Panel’s decision, a forum remains available for a former lot owner to pursue their rights, but it is not the Tribunal.

Given the complexities of court proceedings, it is essential to obtain advice from a lawyer specialising in strata law to effectively manage the claim.

The Importance of Seeking Expert Strata Law Advice

How a Strata Lawyer Can Help Your Case

Strata law is a specialised field, and disputes involving an owners corporation can be complex. The recent NCAT decision in the case highlights the importance of obtaining professional legal guidance to understand your rights and obligations.

An experienced strata lawyer can provide critical advice on the correct legal forum for your dispute. This includes determining whether your claim should be filed in the NCAT or a court.

Following the recent ruling, a former owner no longer has standing to sue an owners corporation for damages in the Tribunal. A lawyer can ensure your case is initiated in the appropriate jurisdiction, helping you avoid potential dismissals on procedural grounds.

A strata lawyer’s input is also invaluable when it comes to strategic timing. They can:

• Advise on the necessity of commencing proceedings before you sell your property, ensuring you are recognised as an “interested person” under the law.
• Guide you in taking proactive steps to secure your right to have your case heard by the Tribunal.

Furthermore, a lawyer can assist in preparing your case for either NCAT or court proceedings. This ensures that all evidence and arguments are presented effectively.

Conclusion

The decision confirms that a former owner cannot sue their owners corporation for damages in NCAT, establishing that an applicant must be a current owner to have standing. This ruling clarifies that while a former owner’s right to claim is preserved, they must pursue it through the court system, not the Tribunal.

With the legal landscape clearly defined by recent NCAT decisions, obtaining professional advice is essential to protect your interests. For specialised guidance on your strata law matter, contact the expert team at PBL Law Group to ensure you take the correct legal steps.

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