The Owners Strata Plan 50276

The Owners Strata Plan 50276 v Thoo [2013] NSWCA 270

Decision: 22 August 2013
The Court of Appeal overturned the Supreme Court’s decisions in Thoo v The Owners Strata Plan No. 50276 [2011] NSWSC 657 and Thoo v The Owners Strata Plan No. 50276 (No. 2) [2012] NSWSC 1313 and dismissed the plaintiff’s claim against the owners corporation.  It was held the owners corporation did not breach its duty under section 62(2) of the Strata Schemes Management Act 1996 (NSW) and that common property fixtures or fittings must be renewed or replaced under section 62(2) only when they are no longer operating effectively or have fallen into disrepair to the point where their renewal or replacement is called for as they can no longer be kept in a state of good and serviceable repair pursuant to section 62(1).  If the existing mechanical exhaust ventilation system had not fallen into disrepair but was operating according to its original design capacity, there could be no breach of section 62(2) by reason of the refusal of the owners corporation to replace the system.  It was also held that even if the owners corporation had breached its duty under section 62(2), it was not required to comply with that duty as the section 62(3) resolution that had been passed by the owners corporation was valid and that there was no entitlement of the plaintiff to damages for breach of statutory duty.