The Owners SP 35042 v Seiwa Australia Pty Ltd [2007] NSWCA 272

The Owners SP 35042 v Seiwa Australia Pty Ltd [2007] NSWCA 272

The notation on the floor plan described only the upper horizontal boundary of the terrace cubic space and did not purport to define its lower horizontal boundary. The lower boundary was therefore determined by s 5(2)(a)(ii) as the upper surface of the floor of the terrace, which was conceded to be the upper surface...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
04 October 2007
Procedural Posture
Appeal Concerning Strata Title Common Property and Damages for Breach of Statutory Duty / Appeal to the New South Wales Court of Appeal From Orders of Brereton J in the Supreme Court Equity Division
Outcome
Appeal dismissed with costs.
Legal Topics
['common Property' 'horizontal Boundaries of Strata Lots' 'waterproof Membrane and Terrace Tiles' 'owners Corporation Duty to Repair' 'loss of Rent' 'assessment of Damages']
['strata Titles' 'damages' 'breach of Statutory Duty'] ['common Property' 'horizontal Boundaries of Strata Lots' 'waterproof Membrane and Terrace Tiles' 'owners Corporation Duty to Repair' 'loss of Rent' 'assessment of Damages']

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Procedural Posture

Appeal Concerning Strata Title Common Property and Damages for Breach of Statutory Duty / Appeal to the New South Wales Court of Appeal From Orders of Brereton J in the Supreme Court Equity Division

Legal Issues

  1. 1 ['Whether the waterproof membrane and tiles on the uncovered terrace of Lot 14 were common property or part of the lot.' 'Whether the notation on the registered strata plan defined the lower horizontal boundary of the terrace as the upper surface of the concrete floor.' 'Whether damages for loss of rent should be assessed by reference to the rent paid by the existing tenant or a later lower rental valuation.']

Ratio Decidendi

The notation on the floor plan described only the upper horizontal boundary of the terrace cubic space and did not purport to define its lower horizontal boundary. The lower boundary was therefore determined by s 5(2)(a)(ii) as the upper surface of the floor of the terrace, which was conceded to be the upper surface of the tiles laid before registration. The membrane below the tiles was common property, so the appellant was responsible for its repair under s 62(1). The primary judge did not err in assessing loss of rent on the basis that, but for the appellant's breaches, Mr Azuma would have continued paying $5,500 per month under a bona fide lease arrangement.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']