Seiwa Pty Ltd v Owners Strata Plan 35042

Seiwa Pty Ltd brought an action against Owners Strata Plan 35042, the body corporate of a strata scheme, in relation to damage to common property within the scheme. The dispute arose from water ingress into a unit through a balcony, resulting in damage to the unit’s internal structure and finishes. The plaintiff claimed damages for the diminution in value of their unit and the cost of repairing the damage, as well as an injunction to compel the defendant to repair the alleged defects. The court was required to determine whether the steel uprights enclosing the balcony and the waterproofing membrane were common property, whether a private cause of action was available to the plaintiff, whether the defendant's duty was strict, whether contributory negligence was a valid defence, and whether the proceedings should have been brought in the Consumer Trading & Tenancy Tribunal.

The court held that the steel uprights and the waterproofing membrane were part of the common property within the strata scheme. The court found that a private cause of action was available to the plaintiff, as the common law provides a remedy for damage caused by the failure to maintain common property. The court also held that the duty of the owners corporation was not strict, and contributory negligence was a valid defence. Regarding the venue, the court found that the Consumer Trading & Tenancy Tribunal did not have jurisdiction over the dispute. The court assessed the measure of damages, concluding that the cost of repairing the common property was not recoverable as damages. However, the court held that a mandatory injunction compelling the defendant to repair the defects was a more just remedy where the diminution in value was not necessarily permanent, subject to the plaintiff's reservation of the right to claim damages in lieu if the injunction was not performed. The court also awarded damages for the loss of use of the property during the period of the repairs.

In summary, the court found in favour of the plaintiff, granting an injunction to compel the defendant to repair the common property and awarding damages for the loss of use of the property. The court held that the cost of repairing the common property was not recoverable as damages, and the defendant's duty was not strict. The court also held that contributory negligence was a valid defence and that the Consumer Trading & Tenancy Tribunal did not have jurisdiction over the dispute.