Symes v SP 31731 [2001] NSWSC 527

Symes v SP 31731 [2001] NSWSC 527

None of the No 2 wall, the No 3 wall, nor the surface tiles in Lot 32 were common property under the statutory definition, as there was no evidence they existed at the relevant registration date or were depicted on the strata plan as such; thus, the body corporate owed no duty to repair under s.68(1)(b)(i), and the Board’s determination that the body corporate was not liable was correct, though reached by erroneous reasoning.

Parties
Appellant: Douglas Symes; Respondent: The Proprietors Strata Plan No 31731
Jurisdiction
Australia
Judgment Date
27 June 2001
Procedural Posture
Appeal by Way of Stated Case / Supreme Court Hearing of Appeal From Strata Titles Board Decision
Outcome
Appeal dismissed with costs.
Legal Topics
Common Property (strata), Body Corporate Duties, Appeal by Way of Stated Case, Boundary Walls, Floor Plan Interpretation
Real Property Strata Titles Practice and Procedure Common Property (strata) Body Corporate Duties Appeal by Way of Stated Case Boundary Walls Floor Plan Interpretation

Case Brief

Summary, issues, holding and outcome

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Parties

Douglas Symes

Appellant

The Proprietors Strata Plan No 31731

Respondent

Procedural Posture

Appeal by Way of Stated Case / Supreme Court Hearing of Appeal From Strata Titles Board Decision

Legal Issues

  1. 1 Whether walls and surface tiles in question are common property for the purposes of s.68(1)(b)(i) of the Strata Titles (Freehold Development) Act 1973
  2. 2 Whether the body corporate is responsible for repairing water penetration at floor and wall level in Lot 32
  3. 3 Whether there was legal error in the determination of the Strata Titles Board

Ratio Decidendi

None of the No 2 wall, the No 3 wall, nor the surface tiles in Lot 32 were common property under the statutory definition, as there was no evidence they existed at the relevant registration date or were depicted on the strata plan as such; thus, the body corporate owed no duty to repair under s.68(1)(b)(i), and the Board’s determination that the body corporate was not liable was correct, though reached by erroneous reasoning.

Court Disposition

Appeal dismissed with costs.

Orders

  • The parts of the building referred to as the No 2 wall, the No 3 wall, and the surface tiles are not common property; the body corporate was not obliged to repair under s.68(1)(b)(i) of the Strata Titles (Freehold Development) Act 1973; appeal dismissed with costs.