Owners-Strata Plan No 43551 v Walter Construction Group Limited

(2004) 62 NSWLR 169; [2004] NSWCA 429

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Standing
3. › Owners corporation
4. › Standing to sue in own name in respect of common property
5. › Whether owners corporation has standing where not all lot owners jointly entitled to take proceedings
6. › Strata Schemes Management Act 1996 (NSW), s 227
7. › Strata Schemes (Freehold Development) Act 1973 (NSW), ss 18, 20, 24
1. Real Property
2. › Strata title
3. › Common property
4. › Nature of owners corporation's interest
5. › Whether statutory 'agency' under s 20 of Strata Schemes (Freehold Development) Act 1973 (NSW) is agency in technical common law sense or analogous to trusteeship
6. › Whether owners corporation entitled to sue as legal owner of common property
1. Statutory Interpretation
2. › Construction of strata title legislation
3. › Meaning of 'jointly entitled' in s 227(2) of Strata Schemes Management Act 1996 (NSW)
4. › Whether 'the owners of the lots' requires all lot owners to share common cause of action
5. › Use of definite article as indicator of legislative intent
1. Agency
2. › Statutory agency
3. › Distinction between agency and trust
4. › Where agent has title to property vested in it
5. › Whether agent with legal title is trustee
6. › Strata Schemes (Freehold Development) Act 1973 (NSW), s 20

Quick Take

An owners corporation may sue in its own right as legal owner of common property in tort for damage to that property, without relying on s 227 of the Strata Schemes Management Act 1996 (NSW). Section 227 only applies where all lot owners are jointly entitled to take proceedings. The statutory 'agency' under s 20 of the Strata Schemes (Freehold Development) Act 1973 (NSW) does not preclude the owners corporation from suing because the relationship is analogous to a trust, not a common law agency.