The Owners - Strata Plan 21702 v Krimbogiannis [2014] NSWCA 411

The Owners - Strata Plan 21702 v Krimbogiannis [2014] NSWCA 411

The District Court made an error of law on the face of the record by reading down the owners corporation's obligation to maintain common property under s 62(1) by reference to the obligation to keep it in good and serviceable repair. Properly construed, s 62(1) includes preservation of common property and extends to restoration of common property that was altered without authorisation. Accordingly the owners corporation was entitled to seek access under ss 65 and 145 to perform that work, and the public interest in correcting the erroneous construction justified relief despite the access dispute having become moot.

Jurisdiction
Australia
Judgment Date
05 December 2014
Procedural Posture
Application for Relief in the Court of Appeal Pursuant to Supervisory Jurisdiction Under S 69 of the Supreme Court Act 1970 (nsw) / Review of District Court Decision Dismissing Appeal From Consumer, Trader and Tenancy Tribunal
Outcome
Relief granted; District Court orders dismissing the applicant's appeal and ordering the applicant to pay the respondents' costs were set aside, with costs orders made in the Court of Appeal and a Suitors' Fund certificate granted to the respondents.
Legal Topics
['judicial Review' 'error of Law on the Face of the Record' 'owners Corporation Powers and Duties' 'maintenance and Repair of Common Property' 'unauthorised Alteration of Common Property' 'access to Lot' 'discretionary Refusal of Relief' 'costs']
['administrative Law' 'strata Titles'] ['judicial Review' 'error of Law on the Face of the Record' 'owners Corporation Powers and Duties' 'maintenance and Repair of Common Property' 'unauthorised Alteration of Common Property' 'access to Lot' 'discretionary Refusal of Relief' 'costs']

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Procedural Posture

Application for Relief in the Court of Appeal Pursuant to Supervisory Jurisdiction Under S 69 of the Supreme Court Act 1970 (nsw) / Review of District Court Decision Dismissing Appeal From Consumer, Trader and Tenancy Tribunal

Legal Issues

  1. 1 ["Whether the District Court erred as to the scope of the statutory obligations of an owners' corporation to maintain and repair common property under s 62 of the Strata Schemes Management Act 1996 (NSW)." 'Whether the obligation to maintain common property extends to removing or reversing an unauthorised alteration to common property.' "Whether the owners' corporation was entitled to an order for access to lot 6 under ss 65 and 145 of the Strata Schemes Management Act 1996 (NSW)." "Whether relief should be declined on discretionary grounds because the substantive access dispute was moot and the respondents' interest was limited to costs."]

Ratio Decidendi

The District Court made an error of law on the face of the record by reading down the owners corporation's obligation to maintain common property under s 62(1) by reference to the obligation to keep it in good and serviceable repair. Properly construed, s 62(1) includes preservation of common property and extends to restoration of common property that was altered without authorisation. Accordingly the owners corporation was entitled to seek access under ss 65 and 145 to perform that work, and the public interest in correcting the erroneous construction justified relief despite the access dispute having become moot.

Court Disposition

Relief granted; District Court orders dismissing the applicant's appeal and ordering the applicant to pay the respondents' costs were set aside, with costs orders made in the Court of Appeal and a Suitors' Fund certificate granted to the respondents.

Orders

  • ["Set aside order (2) (dismissing the applicant's appeal) and order (3) (that the applicant pay the respondents' costs) made in the District Court on 28 May 2013." "Order that the first, second and third respondents pay the applicant's costs in this Court, other than costs thrown away by the abandonment of the...