Colman v The Owners – Strata Plan 61131 [2025] NSWSC 63

Supreme Court New South Wales

Medium Neutral Citation: Colman v The Owners – Strata Plan 61131 [2025] NSWSC 63 Hearing dates: 21 August 2024 Date of orders: 20 February 2025 Decision date: 20 February 2025 Jurisdiction: Common Law Before: Kirk J Decision: (1) Grant leave to appeal with respect to: (a) grounds 1 and 4 to the extent they allege a constructive failure to exercise jurisdiction and a misconstruction of s 106(5); (b) ground 2 to the extent it raises construction of by-law 44; and (c) ground 3(2). (2) To the extent that leave to appeal is granted the appeal is dismissed. (3) The plaintiff's summons is otherwise dismissed. (4) Plaintiff to pay the defendant's costs. Catchwords: LAND LAW – Strata title – Construction of poorly drafted by-law – Heading of by-law at least part of context in which terms to be construed whether or not part of by-law and whether or not by-law regarded legislative in character – By-law in question does not encompass approval of relevant works – By-law could not authorise strata committee to approve works that are not minor renovations LAND LAW – Strata title – No reason why special resolution referred to in s 108(2) authorising change to common property cannot take form of special resolution passing a by-law – Possible challenge of failure to pass such by-law under s 149 does not preclude application under s 126(2) – Tribunal has no power to make order under s 126(2) of the Strata Schemes Management Act 2015 (NSW) to retrospectively approve owner's work on common property unless consent for work has been sought from owners corporation – Refusal of consent may be constructive LAND LAW – Strata title – Powers and obligations of owners corporation – Owners corporation may undertake repairs to common property without need for resolution at general meeting – Owners corporation may give approval to work already done on common property – Insofar as damages or compensation can be claimed under s 106(5) or other provisions for work by lot owner to repair common property then they cannot be claimed for works not approved in required manner by owners corporation or Tribunal Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 80(2)(b), 83 Strata Schemes Management Act 1996 (NSW), s 62 Strata Schemes Management Act 2015 (NSW), ss 3(b), 5, 9, 19, 36(3), Pt 6, 141, 149, Pt 12, Sch 1 cll 4 and 14 Cases Cited: Attorney-General (Cth) v Oates [1999] HCA 35; (1999) 198 CLR 162 Colman v The Owners-Strata Plan No 61131 [2023] NSWCATCD Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 Endre v The Owners – Strata Plan No. 17771 [2019] NSWCATAP 93 Ferella (as Executor of Estate of late Ferella) v Chief Commissioner of State Revenue [2024] NSWSC 166 Fisher v Nonconformist Pty Ltd [2024] NSWCA 32; (2024) 114 NSWLR 1 Independent Liquor and Gaming Authority v Whitebull HTL Pty Ltd [2023] NSWCA 224 Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209; (2022) 109 NSWLR 604 Minister for Immigration and Ethnic Affairs v Mayer [1985] HCA 70; (1985) 157 CLR 290 Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29; (2020) 271 CLR 495 Owners - Strata Plan 32735 v Lesley-Swan [2012] NSWSC 383; (2012) 17 BPR 32,311 Owners Corporation SP6534 v Elkhouri [2024] NSWCA 279 Owners Strata Plan 50276 v Thoo [2013] NSWCA 270; (2013) 17 BPR 33,789 Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157; (2006) 12 BPR 23,673 Smith v Owners – Strata Plan No 3004 [2022] NSWSC 1599 Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416; (2023) 20 BPR 43,135 The Owners – Strata Plan No 2661 v Selkirk [2024] NSWSC 760 The Owners – Strata Plan No 63607 v Kinsella [2022] NSWCATAP 184 The Queen v A2 [2019] HCA 35; (2019) 269 CLR 507 Vickery v The Owners – Strata Plan No 80412 [2020] NSWCA 284; (2020) 103 NSWLR 352 Young v Chief Executive Officer (Housing) [2023] HCA 31; (2023) 278 CLR 208 Category: Principal judgment Parties: Gary Colman (Plaintiff) The Owners – Strata Plan 61131 (Defendant) Representation: Counsel: P Afshar (Plaintiff) D F Elliott (Defendant)