Stolfa v Owners Strata Plan 4366 & ors [2009] NSWSC 589

New South Wales Supreme Court

CITATION : Stolfa v Owners Strata Plan 4366 & ors [2009] NSWSC 589

HEARING DATE(S) : 30 April, 1 May, 31 July, 1 August and 28 October 2008

JUDGMENT DATE : 26 June 2009

JURISDICTION : Equity Division Expedition List

JUDGMENT OF : Brereton J

DECISION : Inquiry as to damages to plaintiff's property, for which the second and third defendants are liable. Proceedings otherwise dismissed.

CATCHWORDS : REAL PROPERTY - Strata Titles – Common property - alterations to common property constituted an improvement or enhancement to common property so as to require authorisation under s 65A - Held: work constituted repairs and maintenance under s 62 and therefore did not require special resolution - Whether work authorised by the Owners Corporation - where works not explicitly authorised by resolution of owners corporation - whether implicitly authorised - Held: owners corporation had implicitly authorised works, alternatively estopped from denying same – Whether such authorisation by the owners corporation constituted a fraud on plaintiffs - Held: the fact that the works benefited some lots more than others does not alter the fact that the works were repairs which Owners Corporation were obliged to implement – Whether works to enclose a veranda constituting common property with a specific lot within building were authorised - where defendant contends that works were for benefit of one lot within block and did not require authorisation under s 65A - Held: works constituted enhancement of common property and therefore required special resolution of owners corporation – Whether owners corporation could authorise works under s 61(1) - Held: s 61(1) only authorises the owners corporation to bring about such works as are authorised under s 62 and s 65A – Where works required authorisation by special resolution of the Owners Corporation - whether such an authorisation occurred - Held: authorisation occurred through resolution authorising enclosure of verandah, supplemented by later resolution approving plans – Alternatively, whether injunctive relief should be granted - where plans have been approved by all residents - where plaintiffs have derived a benefit from works paid for by the Owners Corporation - where a quid pro quo arrangement was reached between residents for approval of plans - where the defendants have relied on the plaintiff's approval of plans - where no loss or damage has been suffered by the plaintiff as a result of the work – Held: injunctive relief would be declined as a matter of discretion – Whether owners corporation required to repair damage to individual lot caused by work by lot owners of other lots - Held: Court cannot order the owners corporation to undertake such repairs - damages against individual lot owners is an adequate and more convenient remedy