If your owners corporation has failed to repair common property and you've suffered loss because of it, NSW law gives you a real remedy. Under Section 106(5) of the Strata Schemes Management Act, you can claim compensation — and NCAT has now awarded amounts ranging from a few thousand dollars up to nearly half a million.
The strict duty — Section 106(1)
Under Section 106(1) of the Strata Schemes Management Act 2015 (NSW), the owners corporation has a strict statutory duty to repair and maintain the common property. "Strict" means there's no "we did our best" defence. If common property is broken and the OC hasn't fixed it, the duty has been breached.
The damages right — Section 106(5)
Section 106(5) lets a lot owner recover reasonably foreseeable loss caused by an OC's breach of its s106(1) duty. The key requirements:
- The OC must have breached its duty to repair common property
- You (the lot owner) must have suffered a loss
- The loss must have been reasonably foreseeable as a consequence of the breach
The kinds of losses owners have successfully claimed include:
- Loss of rent while the lot is uninhabitable or partly unusable
- Cost of alternative accommodation
- Mould treatment and remediation
- Cost of repairing lot property damaged by failed common property
- Increased cost of repairs because the work couldn't be done until water ingress was stopped
- Property manager costs incurred defending claims from tenants
- Expert evidence costs
- Interest
NCAT's unlimited damages jurisdiction
For a long time, there was uncertainty about how much damages NCAT could actually award. That was resolved in Vickery v The Owners – Strata Plan No 80412 [2020] NSWCA 284, where the NSW Court of Appeal confirmed NCAT can make significant awards under s106(5).
Per Bannermans Lawyers (Nov 2022 — updated case list): there is currently no jurisdictional limit on the amount NCAT can award under s106(5).
This is significant. It means owners get access to substantial damages in a less formal, less expensive tribunal — rather than having to run a Supreme Court matter.
Recent awards — what NCAT has been ordering
The table below shows some of the recent NCAT and Court of Appeal decisions on s106(5) damages, as catalogued by Bannermans Lawyers:
| Case | Amount | What was awarded for |
|---|---|---|
| Tezel v The Owners – SP 74232 [2022] NSWCATAP 149 | $447,200 | Loss of rent + costs |
| The Owners – SP 55468 v Silberstein [2025] NSWCATAP 102 | $283,266.55 | Temporary accommodation + loss of amenity |
| Vickery v The Owners – SP 80412 [2020] NSWCA 284 / NCATAP 5 | $97,000 | Loss of rent |
| Horan v The Owners – SP 68307 (No 2) [2024] NSWCATAP 173 | $92,105.52 | Loss of rent + electricity |
| Zanetti v The Owners – SP 43300 [2018] NSWCAT | $70,598.09 | Loss of rent + manager + expert evidence |
| Liberant v The Owners – SP 62713 [2019] NSWCATCD | $55,510.12 | Loss of rent + interest (later upheld on appeal in [2022] NSWCATAP 80) |
| Carli v The Owners – SP 56120 [2018] NSWCATCD 55 | $51,000 | Alternative accommodation |
| The Owners – SP 30691 v Pickard [2024] NSWCATAP 126 | $35,990 | Loss of rent |
| The Owners – SP 30621 v Shum [2018] NSWCATAP 15 | $28,000 | Loss of rent + outgoings + interest |
| Hsueh v The Owners – SP 61321 [2024] NSWCATCD 47 | $11,504 | Mould treatment + timber floor repairs |
| Rosenthal v The Owners – SP 20211 [2017] NSWCATCD 80 | $8,800 | Cost of rectifying damage |
| Bonanno v The Owners – SP 44034 [2022] NSWCATCD | $4,731 | Increased cost of flooring repairs |
How a claim actually works
- Notify the OC in writing of the defect and the damage it's causing. Email is fine — you need a paper trail.
- Give the OC a reasonable opportunity to fix it. Strict duty doesn't mean instant — they need time to scope, get quotes, and engage contractors.
- Get expert evidence. A building consultant or waterproofing specialist report identifying the source as common property is usually essential.
- Document your losses. Rent records, accommodation receipts, repair quotes, mould reports — everything.
- Try NSW Fair Trading mediation first. Often resolves matters before tribunal.
- If mediation fails, apply to NCAT for orders under Sections 232 and 106(5) of the SSMA.
What this means for your scheme
For lot owners: if the OC isn't fixing common property and you're losing money or living with damage, you have a real remedy. Document everything from day one.
For committees: this is the strongest commercial reason to take repair obligations seriously. Letting a defect drag on isn't a way to save money — it usually increases the OC's exposure. A $5,000 membrane repair done promptly is far cheaper than a $90,000 damages award after 18 months of refusing to act.
Honest pushback on the OC side: not every repair complaint is a s106 breach. Wear and tear inside the lot, lot owner renovations, faulty appliances — none of these trigger the OC's strict duty. The defect must be in common property and the loss must be reasonably foreseeable.
A note on apartment vs townhouse cases
Many of the leading damages cases above arose in apartment buildings (between-floor water ingress is a frequent trigger). The legal principles are exactly the same for townhouse and villa schemes — s106 applies equally — but in practice, townhouse damages claims tend to involve:
- Failed external waterproofing on balconies, courtyards or planter boxes
- Roof leaks affecting upper-floor living spaces
- Drainage and stormwater issues causing flooding of garages or ground-floor rooms
- Structural movement causing internal damage
The same Section 106(5) pathway applies.
Sources
Strata Schemes Management Act 2015 (NSW) s106. Case citations above as listed by Bannermans Lawyers in their summary article (21 November 2022, updated periodically): bannermans.com.au/library/claims-by-owners-for-damages-caused-by-water-ingress-under-s1065
Full case texts available via NSW Caselaw: caselaw.nsw.gov.au