Maston v The Owners — Strata Plan No. 11784 [2020] NSWCATCD 18

Maston v The Owners — Strata Plan No. 11784 [2020] NSWCATCD 18

The respondent was taking action for the purposes of s. 106(4) through the Home Building Complaint and subsequent Home Building Compensation Fund claim. The defects the subject of the application did not affect the safety of any building, structure or common property: the stair nosing safety issue had been rectified, the Lot 4 flashing created no safety risk, the alleged water ponding did not present a relevant slip and fall risk on the evidence of Mr Adams, and the applicants had not proved their case concerning the gate and fence. The owners corporation could therefore defer compliance with its s. 106 duties until the insurer claim was determined, and the application was dismissed.

Jurisdiction
Australia
Judgment Date
28 January 2020
Procedural Posture
Application Under S. 232 of the Strata Schemes Management Act 2015 (nsw) Seeking Orders for Repair of Common Property / Principal Judgment After Hearing
Outcome
The application is dismissed.
Legal Topics
['repair of Common Property' 'owners Corporation Duty to Maintain and Repair' 'deferral of Compliance Under S. 106(4)' 'safety of Common Property' 'home Building Compensation Fund Claim']
['strata and Community Schemes' 'property Management'] ['repair of Common Property' 'owners Corporation Duty to Maintain and Repair' 'deferral of Compliance Under S. 106(4)' 'safety of Common Property' 'home Building Compensation Fund Claim']

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Procedural Posture

Application Under S. 232 of the Strata Schemes Management Act 2015 (nsw) Seeking Orders for Repair of Common Property / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the courtyard adjacent to Lot 4 and Lot 4 flashing were defective within the meaning of s. 106(1) of the Strata Schemes Management Act 2015 (NSW).' 'Whether the respondent had taken action against another person in respect of damage to common property for the purposes of s. 106(4).' 'Whether the respondent could defer compliance with its duties under s. 106(1) or s. 106(2).' 'Whether deferral of compliance would affect the safety of any building, structure or common property in the strata scheme.' "Whether the respondent was required to reinstate or replace the gate and adjoining fences at the entrance to the applicants' lot."]

Ratio Decidendi

The respondent was taking action for the purposes of s. 106(4) through the Home Building Complaint and subsequent Home Building Compensation Fund claim. The defects the subject of the application did not affect the safety of any building, structure or common property: the stair nosing safety issue had been rectified, the Lot 4 flashing created no safety risk, the alleged water ponding did not present a relevant slip and fall risk on the evidence of Mr Adams, and the applicants had not proved their case concerning the gate and fence. The owners corporation could therefore defer compliance with its s. 106 duties until the insurer claim was determined, and the application was dismissed.

Court Disposition

The application is dismissed.

Orders

  • ['The application is dismissed.']