When an owners corporation fails to repair a leaking waterproofing membrane and an owner suffers loss, what can they recover? Before 2020 that question was murky. The Vickery and Pullicin decisions settled it: NCAT can award significant damages under Section 106(5), and the owner won $97,000 for loss of rent.
The cases
Vickery v The Owners – Strata Plan No 80412 [2020] NSWCA 284
The Owners – Strata Plan No 74835 v Pullicin; The Owners – Strata Plan No 80412 v Vickery [2020] NSWCATAP 5
NSW Court of Appeal and the NCAT Appeal Panel — read together, the leading authority on damages claims for failed common property waterproofing.
The dispute
Water entered Ms Vickery's lot from common property — a failed waterproofing membrane was identified as the source. The owners corporation didn't repair it within a reasonable time. Ms Vickery couldn't rent her property out while the leak continued and she sought compensation for the lost rent.
The legal question: can NCAT actually award meaningful damages under Section 106(5) of the Strata Schemes Management Act, or are owners stuck running expensive Supreme Court proceedings for losses arising from common property defects?
What the Court of Appeal confirmed
The NSW Court of Appeal held that NCAT does have jurisdiction to make significant damages awards under Section 106(5). The Court awarded Ms Vickery $97,000 in loss-of-rent damages.
Two consequences flow from that:
- The OC's duty under Section 106(1) is strict. "We're getting around to it" or "the contractor is unavailable" doesn't excuse the duty.
- There's no jurisdictional limit on what NCAT can award for losses that flow from a breach. The cap that existed for some other Tribunal proceedings doesn't apply to s106(5).
Why Vickery is the membrane case
The factual trigger was a waterproofing membrane failure. The legal principle reaches much further — any common property defect that causes loss can give rise to a s106(5) claim — but membranes are the most common real-world trigger because:
- They have a finite life (typically 15-25 years)
- Failure is gradual and often missed until water damage shows up
- The membrane sits beneath finishes that look like lot property, so disputes start about whose problem it is
- Repairs need access to lot property to be done — meaning the OC has to actively coordinate
For a townhouse or villa scheme, the equivalents are external membranes under balconies, courtyards, planter boxes, retaining walls, and flat or low-pitched roofs.
The principle Vickery established (and what came next)
Since Vickery, NCAT has awarded damages ranging from a few thousand dollars to nearly half a million. The most significant recent awards reported by Bannermans Lawyers include:
- 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)
- Horan v The Owners – SP 68307 (No 2) [2024] NSWCATAP 173 — $92,105.52
- Liberant v The Owners – SP 62713 [2019] NSWCATCD — $55,510.12 (later upheld on appeal in [2022] NSWCATAP 80)
- Hsueh v The Owners – SP 61321 [2024] NSWCATCD 47 — $11,504 (mould treatment)
The full case round-up is in our separate article on Section 106(5) damages claims.
What this means for your scheme
For owners: if water is entering your townhouse from a failed membrane (or any other common property defect) and the OC is dragging its feet, Vickery is your authority for compensation. Document the damage, notify the OC in writing, get expert evidence that the source is common property, and keep records of every loss — lost rent, accommodation, mould treatment, anything.
For committees: the message of Vickery is that delay is expensive. A $5,000 membrane repair done in month one is far cheaper than a $90,000 damages award after 18 months of inaction. The strict duty doesn't mean instant — but it does mean genuine, prompt action.
For everyone: this is the case that put real money behind the Section 106 duty. Before Vickery, owners felt powerless when the OC delayed. Since Vickery, the calculus changed — and committees in well-run schemes treat membrane and other common property defects as priority items because they know what's at stake.
Related articles
Sources
Strata Schemes Management Act 2015 (NSW), s106 (strict duty), s106(5) (damages).
Vickery v The Owners – Strata Plan No 80412 [2020] NSWCA 284.
The Owners – Strata Plan No 74835 v Pullicin; The Owners – Strata Plan No 80412 v Vickery [2020] NSWCATAP 5.
Full case texts via NSW Caselaw: caselaw.nsw.gov.au
Bannermans Lawyers case round-up: bannermans.com.au — Claims by Owners for Damages caused by Water Ingress under S106(5)