Gonzales v The Owners of Strata Plan 74146 [2010] NSWDC 49

New South Wales District Court

CITATION: Gonzales v The Owners of Strata Plan 74146 [2010] NSWDC 49

HEARING DATE(S): 20 and 21 January 2010

JUDGMENT DATE: 5 February 2010

JURISDICTION: Civil Jurisdiction

JUDGMENT OF: Johnstone DCJ

1. Judgment for the defendant DECISION: 2. Plaintiff to pay the defendant's costs 3. Leave to apply in relation to costs orders, within 14 days

CATCHWORDS: TORTS - claim by a tenant against the proprietors of a strata plan for injuries received on the common property of a building in which he resided - whether the duty of care as occupier was breached - contributory negligence

LEGISLATION CITED: Civil Liability Act 2002 Strata Schemes Management Act 1996

CASES CITED: Jones v Bartlett [2000] HCA 56 Ridis v Strata Plan 10308 [2005] NSWCA 246

PARTIES: Marcus Gonzales (Plaintiff) The Owners of Strata Plan 74146 (First Defendant)

FILE NUMBER(S): 6172/08

COUNSEL: Mr M Daley (Plaintiff) Mr N Polin (First Defendant)

SOLICITORS: Brydens Law Office (Plaintiff) McCulloch & Buggy (First Defendant)

JUDGMENT The proceedings and the issues

1. The plaintiff claims damages in respect of injuries received on 24 December 2005 when his right index finger was caught in the front door to a block of units, in one of which he was living as a tenant with his wife and children. The first defendant was the occupier of the common property on which the accident occurred.

2. The plaintiff contends that the automatic closing mechanism affixed to the top of the door was either faulty or improperly adjusted, presenting a foreseeable hazard that was the cause of his injuries.