Worrall v The Owners - Strata Plan No. 43357 [2021] NSWCATCD 99

Worrall v The Owners - Strata Plan No. 43357 [2021] NSWCATCD 99

The awning was common property because the covered terrace area meant the lot boundary was the underside of the awning ceiling, but the common property memorandum allocated responsibility for repair of the awning to the lot owner, so no order was made requiring the Owners Corporation to repair it. The cavity flashing was in an undisputed common property wall, and special by-law 35 did not grant the owner of Lot 47 exclusive use of that wall or otherwise discharge the Owners Corporation from its own obligation to repair it, so the Owners Corporation was ordered to carry out the agreed Item 2 works. For the roof terrace drainage defects, by-law 33 imposed on the owner of Lot 50...

Jurisdiction
Australia
Judgment Date
16 September 2021
Procedural Posture
Strata Schemes Application Seeking Orders Requiring Owners Corporation to Undertake Remedial Work / Principal Judgment After Hearing
Outcome
Application allowed in part; orders made requiring the Owners Corporation to undertake remedial works for the cavity flashing defect and, in co-operation with the applicant, the roof terrace drainage and fall defect; application otherwise dismissed.
Legal Topics
['common Property' 'owners Corporation Duty to Maintain and Repair Common Property' 'common Property Memorandum' 'common Property Rights by Law' 'exclusive Use by Law' 'allocation of Responsibility for Remedial Works']
['land Law' 'strata Title'] ['common Property' 'owners Corporation Duty to Maintain and Repair Common Property' 'common Property Memorandum' 'common Property Rights by Law' 'exclusive Use by Law' 'allocation of Responsibility for Remedial Works']

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Procedural Posture

Strata Schemes Application Seeking Orders Requiring Owners Corporation to Undertake Remedial Work / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the awning over the roof terrace within Lot 50 was common property and whether the Owners Corporation or the applicant was responsible for its rectification.' 'Whether the Owners Corporation was required to rectify defective cavity flashing in the common property wall between Lots 47 and 50 despite special by-law 35 relating to Lot 47.' 'Whether by-law 33 made the applicant responsible for rectification of inadequate drainage and fall causing ponding on the roof terrace within Lot 50.']

Ratio Decidendi

The awning was common property because the covered terrace area meant the lot boundary was the underside of the awning ceiling, but the common property memorandum allocated responsibility for repair of the awning to the lot owner, so no order was made requiring the Owners Corporation to repair it. The cavity flashing was in an undisputed common property wall, and special by-law 35 did not grant the owner of Lot 47 exclusive use of that wall or otherwise discharge the Owners Corporation from its own obligation to repair it, so the Owners Corporation was ordered to carry out the agreed Item 2 works. For the roof terrace drainage defects, by-law 33 imposed on the owner of Lot 50...

Court Disposition

Application allowed in part; orders made requiring the Owners Corporation to undertake remedial works for the cavity flashing defect and, in co-operation with the applicant, the roof terrace drainage and fall defect; application otherwise dismissed.

Orders

  • ['Order pursuant to s 232 of the Strata Schemes Management Act 2015 (NSW) (SSMA) that the Owners Corporation - Strata Plan No 43357, carry out the remedial work set out in the joint report of Michael Ilievsky, John Riad and Daniel Lee dated 21 June 2021 (Joint Report) in respect of Item 2, the cavity flashing...