Introduction

The Supreme Court has confirmed that an owners corporation and NCAT can grant an owner retrospective approval of work or repairs done by the owner to the common property without the approval of the owners corporation.

However, the Court has also confirmed that there are some prerequisites that must be met before NCAT is able to grant retrospective approval for works done by an owner on common property without the approval of an owners corporation.

The Court has left open the question of whether an owner who does repairs to the common property which an owners corporation should have but did not perform can be compensated for the cost of those repairs.

Facts

Mr Colman owns a lot in a strata building in Pyrmont, Sydney.  Mr Colman and his wife sought the approval of their owners corporation to undertake alterations to a terrace on their lot which affected the common property.  Those alterations included removing and replacing tiles and waterproofing on the terrace. The Colmans alleged that work, or some of it, was necessary to repair defects in the common property which the owners corporation has failed or refused to fix.  Ultimately the Colmans undertook those works without first obtaining the permission of the owners corporation.

The Case

Mr Colman applied to NCAT for orders approving the works he did to his terrace on the grounds that the owners corporation had unreasonably withheld approval of those works and for the owners corporation to pay him damages.  Mr Colman’s application to NCAT was dismissed and an appeal to the Appeal Panel of NCAT was unsuccessful.  Mr Colman then appealed to the Supreme Court but was also unsuccessful.

Ruling

In its decision, the Supreme Court made some key findings about the operation of the Strata Schemes Management Act 2015 with respect to works done by owners that affect the common property.  In summary, the Supreme Court found that:

• Both an owners corporation and NCAT can give retrospective approval of works or repairs already carried out by an owner to common property directly affecting the owner’s lot, even if the owners corporation did not approve of those works before they were done;
• In the case of repairs to the common property undertaken by an owner without the consent of an owners corporation, the strata committee could retrospectively approve those repairs;
• If an owners corporation decides to retrospectively approve work that has been done to the common property by an owner after completion of the work, that approval must be given by special resolution if it involved major renovations;
• NCAT cannot grant retrospective approval for works or repairs that an owner has done to the common property without the permission of the owners corporation unless the owner has first sought the approval of the owners corporation for those works or repairs (even if that approval is sought after the works or repairs are done);
• Where an owner wants to do renovations that affect the common property, there is no reason why the owner cannot seek the owners corporation’s approval of those works and agree to take on responsibility for the maintenance and upkeep of the works by way of a special resolution approving a single by-law that both authorises the works and makes the owner responsible for their maintenance and upkeep – separate special resolutions to approve the works and then to adopt a by-law for the works are not necessary;
• An owners corporation can be taken to unreasonably refuse to approve an owner’s request for consent to carry out works that affect common property, even if the owner’s application for approval has not been voted on at a general meeting, for example, where the application for approval is urgent but the strata committee or secretary refuse to convene a general meeting to consider the issue or decline to do so within a reasonable time or accidentally omit it from the agenda of the next general meeting – in those circumstances there would be a constructive refusal of consent even though no formal decision has been made by the owners corporation at a meeting to reject the owner’s application;
• A by-law cannot delegate to the strata committee power to approve major renovations undertaken by an owner;
• An owner cannot recover compensation from an owners corporation for the cost of repairs the owner does to the common property without the authority of the owners corporation or an order approving that work made by NCAT (either prospectively or retrospectively);
• The question of whether an owner who carried out repairs to the common property which an owners corporation fails to perform can recover compensation from the owners corporation for the cost of those repairs if they are approved by the owners corporation or NCAT remains open and previous cases which indicated that repair costs could not be recovered by the owner under the previous strata legislation do not necessarily shut the gate on recovery of those repair costs under the current legislation;
• There is no need for an owners corporation to pass a resolution at a general meeting to authorise itself to carry out repairs to the common property – the decision to perform the repairs can be made by the strata committee;

Conclusion

The Colman case provided the Supreme Court with an opportunity to clarify a number of grey areas of strata law.  In doing so, the Court has clarified the power for an owners corporation and NCAT to retrospectively approve of work that has been done by an owner to the common property and also clarified that in some circumstances, an owner’s proposal to carry out work to common property can be rejected by an owners corporation even if the proposal is not put to a vote at a meeting, for instance, where the owners corporation delays dealing with the proposal.

Case citation: Colman v The Owners – Strata Plan No. 61131 [2025] NSWSC 63

Adrian Mueller I BCOM LLB FACCAL I Partner

Since 2002 Adrian has specialised almost exclusively in the area of strata law. His knowledge of, and experience in strata law is second to none. He is the youngest person to have been admitted as a Fellow of the ACSL, the peak body for strata lawyers in Australia. Profile I Linked

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For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

In August of this year the criminal jurisdiction of the District Court of New South Wales handed down the last of a series of decisions in relation to the penalties to be imposed on a strata scheme, strata manager and lot owner respectively, arising from a death which had occurred following a damaged gate in an industrial strata scheme falling on a person.

Although these decisions focus upon the criminal prosecution brought against the strata scheme strata manager and lot owner by Safe Work NSW, the circumstances are illustrative for owners corporations and strata managers generally.

Background Incidents

The strata scheme in question was an 8 lot industrial strata scheme around which was built a perimeter fence including a custom-built sliding electric gate.  The gate included guide posts and an end stopper to prevent the gate from over travelling in the closing direction.  The gate was approximately 8.5 metres long and 2 metres high.

In June 2020 an incident occurred whereby the gate was impacted at high speed by a van.  Although the gate remained upright it was bent out of shape, partially pulled off its track and disconnected from its electric motor.  In addition, the guide posts for the gate were damaged and the stopper had come out of position and was no longer capable of preventing over travel of the gate.  Whilst NSW Emergency Services attended the site immediately following the collision, and took steps to secure the gate and perimeter fence, no additional steps were taken to repair, replace or make it safe.

On 5 June 2020 a member of the owners corporation contacted the strata manager to advise of the damage to the gate.  Between 5 and 12 June 2020 the gate was opened and closed manually by various workers at the site.

On the morning of 5 June 2020 a representative of the strata manager issued a work order to a contractor to repair the damage, but did not arrange for the gate to be repaired or replaced as a matter of urgency.  In contrast, damage to the water meter at the owners corporation was repaired on 5 June 2020 on an urgent basis.

Neither the owners corporation nor the strata manager arranged for a risk assessment to be conducted in relation to the damaged gate nor was the gate placed out of service following the damage nor was it removed and nor was a sign posted to the effect that the gate was not operational pending its full repair or replacement.  Neither the owners corporation nor the strata manager took any action to prevent the manual operation of the gate or to post signs advising the gate was not to be operated manually until it had been fully repaired or replaced.

The following day, a number of occupants within the strata scheme undertook makeshift repairs to the gate, without notifying the strata manager.  These repairs were ad hoc in nature and did not eliminate or otherwise address the risk of the gate falling or collapsing.

Approximately one week later an employee of one of the businesses operating from the strata scheme and attempted to operate the gate manually but in the circumstances including a lack of a physical stopper and the damaged guide posts the gate became unstable and fell onto that person.  The worker sustained fatal crush injuries as a result of the incident.  The business was also prosecuted by Safe Work NSW as a result of the injury and death suffered by one of its employees.

Criminal Case Against the Owners Corporation

The owners corporation accepted that it had failed in its duty to comply under the Work Health and Safety Legislation in that it did not:

• either itself or require the strata manager to arrange an immediate risk assessment in relation to the safety and security issues;
• take the gate out of service immediately and post signage to the effect that the gate was not to be operated manually until it was fully repaired or replaced;
• implement itself or require the strata manager to implement measure to keep persons away from the damaged gate;
• direct that the damaged gate not be touched or remain open or unlocked pending repair or replacement; and
• develop and implement a safe work method statement for the manual operation of the gate.

The owners corporation was ordered to pay a fine of $225,000.00 as well as the prosecutor’s costs of $40,000.00.

Criminal Case Against the Strata Manager

The following failures were identified as a managerial breach of the strata manager’s breach of duty under the Work Health and Safety Legislation in that the strata manager’s duties included:

• requiring a competent person to repair or replace the damaged gate following notification on 5 June 2020 of the damage to that gate;
• arranging for the damaged gate to be immediately taken out of service and to prevent it being manually operated until repairs and replacement of the gate had been completed;
• communicating to owners and occupants of the owners corporation by means such as signs and barricades that the damaged gate should not be operated unless and until the operation of the gate had been deemed to be safe by a competent person; and
• confirming and follow up with relevant competent persons to require timeframes for repair and replacement once the strata manager had been notified by the owners corporation of the damage to the gate.

The strata manager was ordered to pay a fine of $150,000.00 as well as the prosecutor’s costs.

Criminal Case Against the Business

The following failures were identified as a breach of the business’ failure to comply with its duty under the Work Health and Safety Legislation:

• failing to direct its workers not to manually operate the gate whilst it was damaged;
• failing to direct that the damaged gate remain open unlocked prior to its replacement or repair by a competent person;
• failing to implement and develop a safe system of work for operating and/or using the damaged gate during the period prior to its replacement or repair;
• failing to develop a safe work method statement or safe work procedure for the manual operation of the gate;
• failing to train and instruct its workers in a safe system of work and work method statement;
• failing to raise safety concerns with the owners corporation and/or with the appointed strata manager about the daily routine of workers manually operating the damaged gate.

The business was fined $375,000.00 and was ordered to pay the prosecutor’s costs in the amount of $44,000.00.

Some Relevant Observations for Owners Corporations and Strata Managers

Each of the parties prosecuted, the lot owners, the owners corporation and the strata manager were identified as having failed to have taken steps which each of them could have done to avoid the death.

Importantly, the Court identified that these steps could have been taken with little or no burden placed on the party concerned.  Examples of the steps which could have been taken included:

• the lot owner directing its employees not to operate the gate manually;
• the owners corporation directing that all occupants of the strata scheme do not operate the gate manually;
• the owners corporation taking steps to make sure the gate was “out of action” until such time as it had been repaired;
• the owners corporation directing owners and occupants of the strata scheme that they did not have permission or authority to repair common property;
• the strata manager failing to implement a safe work plan in relation to the damaged gate, once they became aware that the gate had been damaged;
• the strata manager failing to pursue the clearly required repairs and/or replacement of the gate with sufficient urgency;

Conclusion

Failures of common property are more than an annoyance.  The failure of an owners corporation and strata manager (and in some instances lot owners) to address failures of common property can lead to tragic outcomes.

It is critical that owners corporation take seriously their responsibilities pursuant to s106 of the Strata Schemes Management Act 2015 to repair and maintain common property, and these cases illustrate that it is insufficient for owners corporations and strata managers to operate on the assumption that repairs and maintenance can occur “in due course”.  In each instance, a proper analysis needs to be undertaken of the potential impact of each failure of common property and each instance where common property needs to be repaired.

If an owners corporation or strata manager is in any doubt in relation to these matters they should seek advice immediately.

Warwick van Ede I BEc LLM I Lawyer

Since 1990, Warwick has specialised in strata law, property law and litigation. Recognised for his expertise, he is also a NSW Law Society Accredited Specialist in Property Law. In 2021 he was selected to serve on the Property Law Committee of the Law Society of NSW. Profile I LinkedIn

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

Who is Responsible for Common Property Repairs Caused by Rain?

Sydney smashes another record rainfall in May 2024 (to date) with a deluge of rain over the past weeks across metropolitan and regional areas of New South Wales.

Extensive rainfall events test the patience of every strata manager resulting in numerous complaints about water leaks into strata lots.

Faced with endless demands, owners corporations need to be very clear about their responsibilities, so it’s timely to revisit some of the “fundamentals”.

In the article below we discuss…

Step 1 – Is it the owners corporation’s responsibility?

Step 2 – If it leaks has the common property failed?

Step 3 – Are damages payable by the owners corporation for common property failures?

For more information: Rain and Common Property Damage – Who is Responsible?

Warwick van Ede I BEc LLM I Lawyer

Since 1990, Warwick has specialised in strata law, property law and litigation. Recognised for his expertise, he is also a NSW Law Society Accredited Specialist in Property Law. In 2021 he was selected to serve on the Property Law Committee of the Law Society of NSW. Profile I LinkedIn

Contact Us

For all expert strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

What would you think if you were told that NCAT could not order an owners corporation to carry out repairs to common property or order a lot owner or tenant to comply with a by-law?

No doubt you would think that could not be correct.

However, recent decisions by the Appeal Panel of NCAT have cast doubt on NCAT’s power to resolve most types of strata disputes.

So where does that leave us?

Read the full article here: Is NCAT’s Ability to Resolve Strata Disputes Unclear?

For all NSW strata legal, by-law, building defect and levy collection advice contact us here or call 02 9562 1266, we’re happy to assist.

The NSW Supreme Court has recently handed down a decision in regards to common property that will have a considerable impact on the practice of strata managers across the State. The Court’s decision answers the following often asked questions:

• What type of resolution does an owners corporation need to pass in order to replace an item of common property?
• Is the replacement of an item of common property a repair that can be authorised by an ordinary resolution?
• Or does a decision to replace an item of common property need to be made by special resolution because the replacement of the item will improve or enhance the common property?

What was the outcome of this recent case that involved a dispute between the owners of an apartment building on a waterfront in Sydney’s Eastern Suburbs… Replacing Items of Common Property in Strata?

For NSW strata legal or levy collection advice please contact us here or call 02 9562 1266, we’re happy to assist.

Cracked walls and failing waterproof membranes are two of the common issues which owners corporations have to deal with.

Difficulties may arise where, if the owners corporation takes no action, there may be further consequences in terms of damage to other common property, damage to particular lots, and damage to the property of lot owners.

For some owners corporations, the backing of an insurer can be a “life saver” in a situation like this – but what should the owners corporation do if their insurer declines coverage or otherwise refuses to pay for all or part of the damage which the owners corporation (or a lot owner) is seeking to have fixed?

So, what happens when the insurer refuses to pay? Owners Corporations Common Property and Repairs

For NSW strata legal or levy collection advice please contact us here or call 02 9562 1266, we’re happy to assist.

We all know an owners corporation must maintain and repair common property in its strata scheme.

However, what happens when an owner alters the common property without the consent of the owners corporation?

Does the owners corporation have to repair that common property?

Read on and find out who is responsible for repairing that common property? Strata Unauthorised Works

For strata legal or levy collection advice please contact us here or call 02 9562 1266, we’re happy to assist.