Nicita v Owners of Strata Plan 64837

The case of Nicita v Owners of Strata Plan 64837 involved the plaintiff, Nicita, who sought damages and a mandatory injunction against the Owners’ Corporation of Strata Plan 64837. The plaintiff claimed that the Owners’ Corporation failed in its duty to maintain the common property under the Strata Schemes Management Act 1996, s 62(1). This failure led to significant water damage in the plaintiff's unit, rendering it uninhabitable. The dispute arose out of a series of water ingress issues starting in August 2003, culminating in severe flooding in June 2007, which caused extensive interior damage and forced the tenant to vacate the premises from approximately August 2006.

The primary legal issue before the court was whether the Owners’ Corporation breached its statutory duty to maintain the common property and whether this breach led to the damages claimed by the plaintiff. The court had to determine if the Owners’ Corporation's inaction or inadequate response to the water ingress problems constituted a breach of their statutory duty and if such a breach was the direct cause of the damage. Additionally, the court needed to consider whether a mandatory injunction and damages were appropriate remedies.

In delivering its judgment, the court held that the Owners’ Corporation did indeed breach their duty under the Strata Schemes Management Act 1996. The court found that the repeated instances of water ingress and the subsequent flooding were due to the Corporation's failure to adequately maintain the common property. The court emphasised that the Owners’ Corporation had been repeatedly called upon to address the issue but had failed to do so effectively. By applying the principles from Seiwa Pty Limited v Owners Strata Plan 35042 [2006] NSWSC 1157, the court concluded that a mandatory injunction was appropriate to compel the Owners’ Corporation to undertake the necessary repairs. Furthermore, the court awarded damages to the plaintiff for the losses suffered due to the Corporation's negligence.

The court's final orders included a mandatory injunction requiring the Owners’ Corporation to undertake and complete the necessary repairs to the common property to prevent further water ingress. Additionally, the court awarded the plaintiff a specified amount of damages for the losses incurred as a result of the Corporation's failure to maintain the common property.