Colman v The Owners - Strata Plan 61131

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.