Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157

Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157

The owners corporation owed Seiwa a strict statutory duty under s 62 to maintain and repair the common property, including the balcony steelwork and patio waterproof membrane; failure to do so constitutes breach, for which a private cause of action lies, and damages for loss of use are appropriate, but not the cost...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
06 November 2006
Procedural Posture
Civil / Final Judgment
Outcome
Judgment for plaintiff with mandatory injunction and damages
Legal Topics
['strata Titles' "owners Corporation's Duty to Maintain Common Property" 'damages' 'injunctive Relief']
['real Property'] ['strata Titles' "owners Corporation's Duty to Maintain Common Property" 'damages' 'injunctive Relief']

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Procedural Posture

Civil / Final Judgment

Legal Issues

  1. 1 ['Whether steel uprights enclosing balcony are common property' 'Whether waterproofing membrane on patio is common property' 'Whether owners corporation breached duty to maintain common property under Strata Schemes Management Act 1996 s 62' 'Whether private cause of action is available to lot owners for breach' 'Strictness of the duty under s 62' 'Availability of contributory negligence as a defence' 'Appropriateness of bringing proceedings before Consumer Trading & Tenancy Tribunal (CTTT)' 'Appropriate measure of damages or remedies']

Ratio Decidendi

The owners corporation owed Seiwa a strict statutory duty under s 62 to maintain and repair the common property, including the balcony steelwork and patio waterproof membrane; failure to do so constitutes breach, for which a private cause of action lies, and damages for loss of use are appropriate, but not the cost of abatement. Mandatory injunction is the just remedy subject to substitution of damages if not performed.

Court Disposition

Judgment for plaintiff with mandatory injunction and damages

Orders

  • ['Defendant to repair waterproof membrane on patio of Unit 14 to the standard of a repeat water test resulting in no penetration into Unit 14 by 6 February 2007.' 'Defendant to pay plaintiff $150,000 for loss of use damages.' 'Plaintiff may apply for further damages of $250,000 in lieu of injunction if works not...