Colman v The Owners - Strata Plan 61131 - [2025] NSWSC 63

Supreme Court

New South Wales

Medium Neutral Citation: Colman v The Owners – Strata Plan 61131 [2025] NSWSC 63
Hearing dates: 21 August 2024
Date of orders: 20 February 2025
Decision date: 20 February 2025
Jurisdiction: Common Law
Before: Kirk J
Decision:
(1) Grant leave to appeal with respect to:
(a) grounds 1 and 4 to the extent they allege a constructive failure to exercise jurisdiction and a misconstruction of s 106(5);
(b) ground 2 to the extent it raises construction of by-law 44; and
(c) ground 3(2).
(2) To the extent that leave to appeal is granted the appeal is dismissed.
(3) The plaintiff’s summons is otherwise dismissed.
(4) Plaintiff to pay the defendant’s costs.

Catchwords:
LAND LAW – Strata title – Construction of poorly drafted by-law – Heading of by-law at least part of context in which terms to be construed whether or not part of by-law and whether or not by-law regarded legislative in character – By-law in question does not encompass approval of relevant works – By-law could not authorise strata committee to approve works that are not minor renovations
LAND LAW – Strata title – No reason why special resolution referred to in s 108(2) authorising change to common property cannot take form of special resolution passing a by-law – Possible challenge of failure to pass such by-law under s 149 does not preclude application under s 126(2) – Tribunal has no power to make order under s 126(2) of the Strata Schemes Management Act 2015 (NSW) to retrospectively approve owner’s work on common property unless consent for work has been sought from owners corporation – Refusal of consent may be constructive
LAND LAW – Strata title – Powers and obligations of owners corporation – Owners corporation may undertake repairs to common property without need for resolution at general meeting – Owners corporation may give approval to work already done on common property – Insofar as damages or compensation can be claimed under s 106(5) or other provisions for work by lot owner to repair common property then they cannot be claimed for works not approved in required manner by owners corporation or Tribunal

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), ss 80(2)(b), 83
Strata Schemes Management Act 1996 (NSW), s 62
Strata Schemes Management Act 2015 (NSW), ss 3(b), 5, 9, 19, 36(3), Pt 6, 141, 149, Pt 12, Sch 1 cll 4 and 14

Cases Cited:
Attorney-General (Cth) v Oates [1999] HCA 35; (1999) 198 CLR 162
Colman v The Owners-Strata Plan No 61131 [2023] NSWCATCD
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088
Endre v The Owners – Strata Plan No. 17771 [2019] NSWCATAP 93
Ferella (as Executor of Estate of late Ferella) v Chief Commissioner of State Revenue [2024] NSWSC 166
Fisher v Nonconformist Pty Ltd [2024] NSWCA 32; (2024) 114 NSWLR 1
Independent Liquor and Gaming Authority v Whitebull HTL Pty Ltd [2023] NSWCA 224
Ming v Director…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWSC 63
Decision Date: 20 February 2025

CaseChat Overview and Summary

The dispute between Colman and The Owners - Strata Plan 61131 was heard by the Supreme Court of New South Wales. The conflict arose from a by-law in the strata plan that was poorly drafted and ambiguous, which led to a disagreement over the approval of works on common property. The case centred around whether the by-law encompassed the approval of relevant works and whether it could authorise the strata committee to approve works that were not minor renovations.

The primary legal issues the court had to address were the interpretation of the by-law and the procedures required for approving works on common property. The court examined whether the heading of the by-law formed part of the context in which the terms were to be construed and if the by-law could authorise the strata committee to approve works beyond minor renovations. Additionally, the court considered whether the owners corporation could undertake repairs to common property without needing a resolution at a general meeting and if damages or compensation could be claimed for works not approved in the required manner by the owners corporation or the Tribunal.

The court ruled that the by-law did not encompass approval of the relevant works and could not authorise the strata committee to approve works that were not minor renovations. The court held that the heading of the by-law was part of the context in which the terms were to be construed. Furthermore, the court determined that a special resolution authorising a change to common property could take the form of a special resolution passing a by-law. The possible challenge of failing to pass such a by-law under section 149 did not preclude an application under section 126(2). The Tribunal did not have the power to make an order under section 126(2) to retrospectively approve the owner's work on common property unless consent for the work had been sought from the owners corporation. The refusal of consent could be considered constructive. Finally, the court concluded that the owners corporation could undertake repairs to common property without needing a resolution at a general meeting and that damages or compensation could not be claimed for works not approved in the required manner by the owners corporation or the Tribunal.

The court's final orders were that the by-law did not encompass approval of the relevant works and that the owners corporation could not authorise the strata committee to approve works beyond minor renovations. The court also ruled that the owners corporation could undertake repairs to common property without needing a resolution at a general meeting and that damages or compensation could not be claimed for works not approved in the required manner by the owners corporation or the Tribunal.

Orders