Repairs made easier: Selkirk v The Owners – Strata Plan No 2661 (2024) NSWCATAP 17

In this case, Sachs Gerace Lawyers successfully represented Simone Selkirk in her claim against the Owners Corporation (OC) for its failure to repair and maintain common property under s106 of the Strata Schemes Management Act 2015 (SSMA).

Although this is a common type of claim, the Appeal Panel had some important things to say about an OC’s duty to repair and maintain and how claims to enforce compliance with this duty can be proved.

1. The Appeal Panel reaffirmed the rule that an OC cannot decline to repair and maintain common property because it has difficulty getting access to lot property.
2. An OC’s duty to repair and maintain common property includes an obligation to determine the scope of that obligation and the manner in which it is to be fulfilled.
3. Where the OC admits that it is in breach of its duty to repair and maintain common property or it is found that the OC is in breach, the onus rests with the OC to establish what work is required to effect the repairs.
4. The Tribunal can make an order compelling the OC to carry out the required investigations to establish the proper method of repair and then undertake that work.
5. The OC’s duty extends to making something good even if it was not good in the first place.
6. Delays by insurers and others (eg contractors) is not a defence.
7. While a lot owner will be required, on commonsense principles of causation, to establish damage to lot property or other loss, certain types of loss will be self-evident, and this may include that water entry makes premises uninhabitable or unrentable.
8. Repairing consequential damage to lot property required it to be substantially similar in appearance, characteristics and quality compared to what it was before and the inevitable improvement by replacing old with new does not attract a discount.

Following on from this win, if you are a lot owner and have experienced loss due to the OC’s failure to repair and maintain common property, Sachs Gerace Lawyers are highly experienced strata law specialists, and we can advise and assist you at any stage of your claim against an OC for its failure to comply with its obligations under the SSMA.

We can also assist OCs to clarify their obligations and how they should be efficiently and effectively fulfilled.