Colman v The Owners – Strata Plan 61131 [2025] NSWSC 63

Colman v The Owners – Strata Plan 61131 [2025] NSWSC 63

Insofar as damages or compensation can be claimed under s 106(5) or other provisions for work undertaken by a lot owner to repair common property, they cannot be claimed for works which have not been approved in the required manner (either prospectively or retrospectively) by the owners corporation or the Tribunal. By-law 44 does not itself approve the relevant works nor delegate approval power to the strata committee for such works. The Tribunal is not empowered to make a works approval order under s 126(2) unless approval has first been sought from the owners corporation, but refusal of consent may, in particular factual contexts, be constructive and not always require a formal vote.

Parties
Plaintiff: Gary Colman; Defendant: The Owners – Strata Plan 61131
Jurisdiction
Australia
Judgment Date
20 February 2025
Procedural Posture
Appeal / Decision on Application for Leave to Appeal and Appeal (supreme Court of Nsw, Common Law Jurisdiction)
Outcome
Leave to appeal granted in part; appeal dismissed; plaintiff's summons otherwise dismissed; plaintiff to pay defendant's costs.
Legal Topics
Strata Title, Construction of by Law, Damages Under S 106(5) Strata Schemes Management Act, Owners Corporations' Powers and Obligations, Orders Under S 126 Strata Schemes Management Act
Land Law Strata Title Construction of by Law Damages Under S 106(5) Strata Schemes Management Act Owners Corporations' Powers and Obligations Orders Under S 126 Strata Schemes Management Act

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 24 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Gary Colman

Plaintiff

The Owners – Strata Plan 61131

Defendant

Procedural Posture

Appeal / Decision on Application for Leave to Appeal and Appeal (supreme Court of Nsw, Common Law Jurisdiction)

Legal Issues

  1. 1 Whether Tribunal and Appeal Panel erred in finding Mr Colman could not claim damages under s 106(5) for costs of carrying out Relevant Works in absence of prior approval
  2. 2 Whether the Tribunal erred in declining to make a retrospective approval order under s 126(2) due to alleged lack of refusal at general meeting
  3. 3 Construction of by-law 44 – whether it authorised relevant works or delegated approval to strata committee

Ratio Decidendi

Insofar as damages or compensation can be claimed under s 106(5) or other provisions for work undertaken by a lot owner to repair common property, they cannot be claimed for works which have not been approved in the required manner (either prospectively or retrospectively) by the owners corporation or the Tribunal. By-law 44 does not itself approve the relevant works nor delegate approval power to the strata committee for such works. The Tribunal is not empowered to make a works approval order under s 126(2) unless approval has first been sought from the owners corporation, but refusal of consent may, in particular factual contexts, be constructive and not always require a formal vote.

Court Disposition

Leave to appeal granted in part; appeal dismissed; plaintiff's summons otherwise dismissed; plaintiff to pay defendant's costs.

Orders

  • Grant leave to appeal with respect to: (a) grounds 1 and 4 to the extent they allege a constructive failure to exercise jurisdiction and a misconstruction of s 106(5); (b) ground 2 to the extent it raises construction of by-law 44; (c) ground 3(2).
  • To the extent that leave to appeal is granted the appeal is dismissed.