The Owners - Strata Plan 21702 v Krimbogiannis

The case of *The Owners - Strata Plan 21702 v Krimbogiannis* concerned an appeal to the Court of Appeal of New South Wales. The dispute originated from an owners' corporation's attempt to gain access to a lot to rectify an unauthorised alteration to common property. The owners' corporation had sought an order for access from an adjudicator under section 145 of the *Strata Schemes Management Act 1996* (NSW), which was refused by the Consumer, Trader and Tenancy Tribunal, and subsequently, an appeal to the District Court was dismissed.

The primary legal issue before the Court of Appeal was whether the District Court had erred in law by misinterpreting the scope of the owners' corporation's statutory obligations to maintain and repair common property. Specifically, the court had to determine if the obligation to "maintain" common property extended to removing an unauthorised alteration made by a lot owner, and whether this obligation conferred the necessary powers for the owners' corporation to carry out such work, including obtaining an order for access against the occupier.

The Court of Appeal found that the District Court had erred in its construction of the owners' corporation's obligations. The court held that the obligation to "maintain" common property, as stipulated in section 62(1) of the Act, was not limited to merely "keeping in a state of good and serviceable repair." Rather, the broader meaning of "maintain" encompassed preserving the property, which included the power to address unauthorised alterations. The court reasoned that the statutory context and the nature of the common property vested in the owners' corporation supported this interpretation, and that the obligation to maintain carried with it the necessary powers for its performance, as supported by section 50(1)(e) of the *Interpretation Act 1987* (NSW). The District Court's attempt to read down the meaning of "maintain" by reference to "repair" was deemed erroneous.

Consequently, the Court of Appeal set aside the District Court's orders dismissing the applicant's appeal and requiring the applicant to pay the respondents' costs. The court ordered that the respondents pay the applicant's costs in the Court of Appeal, with an exception for costs thrown away by the abandonment of a hearing. The respondents were also granted a certificate under the *Suitors' Fund Act 1951* (NSW).