Reviewed and updated 14-10-2026. We corrected this summary. The Court of Appeal confirmed that NCAT can award section 106(5) damages; the $97,000 lost-rent figure was the amount upheld at first instance, and the Court of Appeal sent the matter back to be decided again (it was remitted). We removed the companion NCAT decision and the membrane details, which we could not verify, and corrected the award figures.
When an owners corporation fails to repair common property and an owner suffers loss, can NCAT order compensation — or does the owner have to go to the Supreme Court? Vickery answered that: NCAT can award damages under section 106(5), and there is no monetary ceiling.
The case
Vickery v The Owners – Strata Plan No 80412 [2020] NSWCA 284
NSW Court of Appeal, 11-11-2020 (Basten and White JJA; Leeming JA dissenting).
The question
The owner claimed lost rent caused by the owners corporation's failure to repair common property. The legal question was whether NCAT had power to award damages under section 106(5) of the Strata Schemes Management Act 2015, or whether owners had to run court proceedings.
What the Court of Appeal decided
- NCAT can order an owners corporation to pay section 106(5) damages, using its power under section 232.
- Section 106(5) is a statutory right to damages, enacted to reverse the earlier position that a breach of the repair duty gave no damages claim ([16]–[19]).
- Section 232 has no monetary ceiling.
- The $97,000 was the owner's lost-rent claim as upheld at first instance. The Court of Appeal remitted the matter — it did not itself award that sum.
Why it matters
Before Vickery, owners were unsure whether NCAT could deal with damages claims at all. Since then, owners can bring a claim in NCAT's Consumer and Commercial Division, and delay by an owners corporation carries real financial exposure. The principle applies to any common property defect that causes loss — leaking membranes, roofs, drainage or structure.
Awards since
- Tezel v The Owners – SP 74232 [2022] NSWCATAP 149 — $447,200 lost rent
- The Owners – SP 55468 v Silberstein [2025] NSWCATAP 102 — $283,266.55 temporary accommodation plus $10,000 loss of amenity
- Horan v The Owners – SP 68307 [2024] NSWCATAP 118 — $46,616.26 lost rental opportunity, short-stay letting loss and electricity
- Hsueh v The Owners – SP 61321 [2024] NSWCATCD 47 — $11,504 mould treatment and floating timber floors
The full list is in our article on Section 106(5) damages claims.
What this means for your scheme
For owners: if water or other damage is coming from common property and the owners corporation isn't acting, you can claim your losses in NCAT. Notify the owners corporation in writing, allow access, get expert evidence that the source is common property, and keep records of every loss. Claims must be brought within six years of becoming aware of the loss (s106(6)).
For committees: delay is expensive. Liability keeps running until the work is actually done. The duty is strict — it doesn't mean instant, but it does mean genuine, prompt action.
Related articles
Sources
Strata Schemes Management Act 2015 (NSW), s106(1), s106(5), s106(6), s232.
Vickery v The Owners – Strata Plan No 80412 [2020] NSWCA 284 at [16]–[19]. Awards as cited above.
Full case texts via NSW Caselaw: caselaw.nsw.gov.au