The Owners - Strata Plan 21702 v Krimbogiannis

[2014] NSWCA 411

NSW Court of Appeal

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Interrogate

Catchwords

1. Strata Titles
2. › Owners' corporation
3. › Powers and duties
4. › Maintenance and repair of common property
5. › Whether obligation to 'maintain' common property extends to removing unauthorised alteration by lot owner
6. › Whether 'maintain' to be read down by reference to 'keep in good and serviceable repair'
7. › Strata Schemes Management Act 1996 (NSW), ss 62, 65, 145
1. Administrative Law
2. › Judicial review
3. › Error of law on the face of the record
4. › District Court exercising appellate jurisdiction from tribunal
5. › Erroneous construction of statutory obligations of owners' corporation
6. › Supreme Court Act 1970 (NSW), s 69
1. Practice and Procedure
2. › Mootness
3. › Whether relief should be declined on discretionary basis
4. › Public interest in correcting erroneous construction of statute
5. › Costs order as remaining live issue

Quick Take

The obligation of an owners' corporation to 'properly maintain' common property under s 62(1) of the Strata Schemes Management Act 1996 (NSW) extends beyond keeping property in good repair and includes preserving common property by restoring it where it has been altered without authorisation. The observations in [name withheld] v Strata Plan 10308 about s 62(1) being directed to keeping common property 'operational' and 'restoring something which is defective' are confined to the issue of whether the duty extends to upgrading common property to current safety standards, and do not limit the scope of the maintenance obligation in relation to unauthorised alterations.