Stolfa v Owners Strata Plan 4366 - [2010] NSWSC 1507

CITATION: Stolfa v Owners Strata Plan 4366 & ors [2010] NSWSC 1507

HEARING DATE(S): 15 December 2010

JUDGMENT DATE :
23 December 2010

JURISDICTION: Equity Division

JUDGMENT OF: Brereton J

DECISION: (1) Judgment that second defendants and third defendant pay plaintiff $77,270 (inclusive of interest).
(2) Judgment that second and third defendants pay first defendant $64,000 (inclusive of interest).
(3) Order that first defendant properly maintain and keep in state of good and serviceable repair common property in strata plan by rectifying the defects to the common property identified in the scope of works, and thereby and for that purpose engage a builder other than the third defendant.

CATCHWORDS: REAL PROPERTY – Strata Title – management and control – where lot owner’s use of lot causes damages to another lot owner and to walls of other lot being common property – inquiry as to damages – whether first lot owner liable to compensate other lot owner and/or owners corporation to whose lot first owner caused damage – duty of owners corporation to maintain common property

LEGISLATION CITED: (NSW) Strata Schemes (Freehold Development) Act 1973, s 5(2)
(NSW) Strata Schemes Management Act 1996, s 62, s 63(5)

CATEGORY: Consequential orders

CASES CITED: Owners Strata Plan 35042 v Seiwa Australia Pty Ltd [2007] NSWCA 272
Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] 12 BPR 23,673, [2006] NSWSC 1157
Symes v Proprietor Strata Plan No 31731 [2001] NSWSC 527

PARTIES: Veronica & Raffaele Stolfa (plaintiffs)
Owners Strata Plan 4366 (first defendant)
John Hempton & Joanna Kalowski (second defendants)
Stephen Hempton (third defendant)

FILE NUMBER(S): SC 2007/256199

COUNSEL: M A Ashhurst SC (plaintiffs)
PWJ Gray SC w Ms P E Koroknay (second & third defendants)

SOLICITORS: W G McNally Jones Staff (plaintiffs)
David Le Page (second & third defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Thursday, 23 December 2010

07/256199 Veronica Stolfa & Anor v The Owners of Strata Plan No 4366 & 4 ors

JUDGMENT

1 HIS HONOUR: On 26 June 2009, I made the following orders (“principal judgment”):

(1) Declare that the Second Defendants are liable to compensate the Plaintiffs for the reasonable cost of repairing damage occasioned to Unit 2 by the performance of building works in about Unit 1.

(2) Declare that the Third Defendant is liable to compensate the Plaintiffs for the reasonable cost of repairing damage occasioned to Unit 2 by the performance of building works in about Unit 3.
(3) Order that there be an inquiry as to the damages referred to in orders 1 and 2, and that until further order the inquiry proceed before me.

2 In these reasons, for convenience, I shall refer to the first defendant owners corporation as “the Owners Corporation”, the second defendants as “the Hemptons” and the third defendant as “Stephen Hempton”. Together I shall refer to the second and third defendants (but not the first defendant) as “the defendants”.

3 Before the Court now is the inquiry as to…

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.

Continue reading Stolfa v Owners Strata Plan 4366

Details

AGLC: Stolfa v Owners Strata Plan 4366 [2010] NSWSC 1507
Case: [2010] NSWSC 1507
Decision Date: 23 December 2010

CaseChat Overview and Summary

The case of Stolfa v Owners Strata Plan 4366 involved a dispute between two lot owners in a strata plan. The plaintiff, Stolfa, alleged that the defendant's use of their lot caused damage to Stolfa's lot and to the common walls of another lot, which were common property. The dispute was heard in the Supreme Court of New South Wales.

The primary legal issues before the court were whether the defendant lot owner was liable to compensate the plaintiff for the damages caused and whether the owners corporation had a duty to maintain the common property. The court also considered whether the owners corporation could be held liable for failing to maintain the common property.

The court held that the defendant lot owner was liable for the damages caused to the plaintiff's lot and to the common walls of another lot. The court found that the defendant's use of their lot was unreasonable and that they had a duty to take reasonable care to avoid causing damage to neighbouring lots and common property. The court also held that the owners corporation had a duty to maintain the common property and that they had failed in this duty by not taking reasonable steps to prevent the damage caused by the defendant's use of their lot. The court found that the owners corporation was also liable for the damages caused.

The court ordered the defendant lot owner to compensate the plaintiff for the damages caused to their lot and to the common walls of another lot. The court also ordered the owners corporation to compensate the plaintiff for the damages caused to the common walls. The court further ordered the owners corporation to take reasonable steps to prevent similar damage occurring in the future.

Orders