McElwaine v The Owners - Strata Plan 75975 [2017] NSWCA 239

McElwaine v The Owners - Strata Plan 75975 [2017] NSWCA 239

Chapter 5 of the Strata Schemes Management Act 1996 (NSW) does not exclude a lot owner's right to sue the owners corporation for common law nuisance in respect of the management or repair of common property. Section 226(1) expressly preserves such rights, and nothing in the Act displaces common law actions unless by...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
20 September 2017
Procedural Posture
Appeal / Appeal Judgment on Question of Law, Remitter to Equity Division
Outcome
Appeal allowed; proceedings remitted.
Legal Topics
['strata Title' 'common Law Nuisance' 'statutory Duties' 'exclusivity of Remedies' 'interpretation of S 226 Strata Schemes Management Act (nsw)']
['real Property' 'torts' 'statutory Interpretation'] ['strata Title' 'common Law Nuisance' 'statutory Duties' 'exclusivity of Remedies' 'interpretation of S 226 Strata Schemes Management Act (nsw)']

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Procedural Posture

Appeal / Appeal Judgment on Question of Law, Remitter to Equity Division

Legal Issues

  1. 1 ['Does Chapter 5 of the Strata Schemes Management Act 1996 (NSW) exclude a claim for common law damages in nuisance?' "Is a lot owner's right to sue at common law preserved by s 226 of the Act?"]

Ratio Decidendi

Chapter 5 of the Strata Schemes Management Act 1996 (NSW) does not exclude a lot owner's right to sue the owners corporation for common law nuisance in respect of the management or repair of common property. Section 226(1) expressly preserves such rights, and nothing in the Act displaces common law actions unless by clear legislative intent, which is absent here.

Court Disposition

Appeal allowed; proceedings remitted.

Orders

  • ['Appeal allowed.' "Set aside the order made on 10 November 2016 that the plaintiff's proceedings be dismissed with costs." "Order that the question ordered for separate determination on 13 May 2015, namely: 'Whether the legal effect of Chapter 5 of the Strata Schemes Management Act is that the plaintiff has no...