Shousha v The Owners Strata Plan 2657

Shousha, the appellant, initiated proceedings against the Owners Corporation of Strata Plan 2657, the respondent, in the Supreme Court of New South Wales. The appellant sought an order compelling the respondent to replace the windows on lot 2 of the strata scheme, which had sustained damage. The appellant contended that the respondent's failure to replace the damaged windows amounted to a breach of the Owners Corporation's obligation to maintain the common property. The respondent argued that it was not obligated to replace the windows due to an insurance policy covering damage caused by vandalism, which it believed would cover the cost of replacement.

The court was required to determine whether the respondent's obligation to maintain the common property included replacing the damaged windows and, if so, whether the respondent could rely on the insurance policy as a defence. The court held that the respondent had an obligation to maintain the common property, which included replacing the damaged windows. The court further held that the respondent could not rely on the insurance policy as a defence, as it did not absolve the respondent of its obligation to maintain the common property. The court ordered the respondent to replace the damaged windows within a specified timeframe and engage properly qualified and licensed tradespersons.

The court dismissed the application in all other respects and gave the parties until a specified date to seek leave to apply for costs. The court's decision highlights the importance of Owners Corporations fulfilling their obligation to maintain common property and the limitations of relying on insurance policies as a defence.