NSW Caselaw
Reported Decision: (2007) NSW Titles Cases 80-122
New South Wales Court of Appeal
CITATION: The Owners SP 35042 v Seiwa Australia Pty Ltd [2007] NSWCA 272
HEARING DATE(S): 5 September 2007
JUDGMENT DATE: 4 October 2007
JUDGMENT OF: Giles JA at 1; Tobias JA at 2; Basten JA at 49
DECISION: Appeal dismissed with costs
CATCHWORDS: STRATA TITLES – Common property – Whether waterproof membrane under tiles on uncovered terrace is common property or property of lot owner – Whether lower boundary of cubic space of lot is upper surface of concrete slab or upper surface of tiles on top of slab – Where lower boundary not specified by registered strata plan – Where tiles laid prior to registration of strata plan – Strata Schemes (Freehold Development) Act 1973 ss 5(1), 5(2), 8(1) – DAMAGES – Breach of statutory duty – Loss of rent – Principles – Wrongdoer must take his victim as he finds him
Strata Schemes Management Act 1996 LEGISLATION CITED: Strata Schemes (Freehold Development) Act 1973 Strata Titles Act Regulations 1974
CASES CITED: Symes v The Proprietors Strata Plan No. 31731 [2001] NSWSC 527 Symes v The Proprietors Strata Plan No. 31731 [2003] NSWCA 7
PARTIES: The Owners Strata Plan No. 35042 Seiwa Australia Pty Ltd
FILE NUMBER(S): CA 40773/06
COUNSEL: A: Mr Bradford R: M. Young
SOLICITORS: A: Alex Ilkin & Co, Mortdale R: Dixon Holmes Du Pont, Sydney
LOWER COURT JURISDICTION: Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S): SC 4205/05
LOWER COURT JUDICIAL OFFICER: Brereton J
LOWER COURT DATE OF DECISION: 6 November 2006
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