Seiwa Pty Ltd v Owners Strata Plan 35042

(2006) 12 BPR 23; [2006] NSWSC 1157

Supreme Court of NSW

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Interrogate

Catchwords

1. Real Property
2. › Strata titles
3. › Owners corporation
4. › Duty to maintain common property
5. › Whether duty under s 62 is strict
6. › Whether contributory negligence available as defence
7. › Whether private cause of action available to lot owner
8. › Strata Schemes Management Act 1996 (NSW), s 62
1. Real Property
2. › Strata titles
3. › Common property
4. › Whether steel uprights enclosing balcony are common property
5. › Whether waterproofing membrane beneath patio tiles is common property
6. › Strata Schemes (Freehold Development) Act 1973 (NSW), s 5(2)
1. Remedies
2. › Damages
3. › Nuisance analogy
4. › Measure of damages for breach of statutory duty to maintain common property
5. › Whether cost of repairing common property recoverable as damages
6. › Damages for diminution in value
7. › Damages for loss of use of property
1. Remedies
2. › Injunctions
3. › Mandatory injunction
4. › Whether mandatory injunction more appropriate than damages where diminution not necessarily permanent
5. › Reservation of entitlement to damages in lieu if injunction not performed

Quick Take

The cost of rectifying defective common property is not recoverable as damages by a lot owner suing an owners corporation for breach of s 62, being analogous to abatement costs in nuisance. The appropriate remedy for a continuing breach is a mandatory injunction, with liberty reserved to the plaintiff to claim diminution in value damages if the injunction is not performed. Contributory negligence is no defence to breach of the strict statutory duty under s 62. The private cause of action under s 62 survives the enactment of alternative dispute resolution mechanisms in the 1996 Act.