Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157

New South Wales Supreme Court

CITATION : Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157

HEARING DATE(S) : 18 & 19 October 2006

JUDGMENT DATE : 6 November 2006

JURISDICTION : Equity Division

JUDGMENT OF : Brereton J

DECISION : Order that defendant properly maintain and keep in state of good and serviceable repair common property, by repairing waterproof membrane on patio of Unit to standard that repeat water test results in no penetration of water into Unit. Judgment that defendant pay the plaintiff $150,000 loss of use damages. Reserve liberty to plaintiff to apply after 3 months for further (diminution in value) damages of $250,000 in lieu of injunction, if no satisfactory repeat water test.

CATCHWORDS : REAL PROPERTY – Strata and related titles and occupancy – owners corporation's duty to maintain common property – whether steel uprights enclosing balcony common property – whether waterproofing membrane common property - whether private cause of action available – whether duty strict – whether contributory negligence available as defence – whether proceedings ought to have been brought in Consumer Trading & Tenancy Tribunal – Remedies – Damages - measure of damages – damages for diminution of value - whether cost of repairing common property recoverable as damages – held, it is not - whether mandatory injunction more just remedy where diminution not necessarily permanent – held, it is, subject to reservation to plaintiff of entitlement to have damages in lieu if mandatory injunction is not performed – damages for loss of use of property.

(NSW) Strata Schemes (Freehold Development) Act 1973, s 5(2) LEGISLATION CITED : (NSW) Strata Schemes Management Act 1996, ss 62, 138(3)(d) (NSW) Strata Titles Act 1973, s 68 (NSW) Strata Titles Regulations 1973, Reg 9