The Owners Strata Plan No 2661 v Selkirk

The Owners Strata Plan No 2661 initiated proceedings against Selkirk, a lot owner within the strata scheme, seeking to enforce the owners corporation's rights to inspect and repair common property and to recover damages for losses incurred due to Selkirk's failure to cooperate with the owners corporation. The dispute came before the Supreme Court of New South Wales, where the primary issue was whether the owners corporation could compel Selkirk to allow access to her property to carry out necessary repairs and whether the corporation could successfully argue that Selkirk's unreasonable conduct contributed to the extent of the damages claimed.

The court examined the nature of the duty imposed on the owners corporation under the Strata Schemes Management Act 2015 (NSW) to maintain and repair common property. It was necessary to determine whether the corporation's entitlement to apply for orders to inspect and perform works on Selkirk's property was negated by her refusal to cooperate. Furthermore, the court had to consider whether the corporation could partially defend against the claim for damages by arguing that Selkirk's unreasonable conduct in not mitigating her loss should be taken into account. The statutory right to damages provided under section 106 was also scrutinized to assess its applicability in this context.

In its reasoning, the court found that the owners corporation had a legitimate interest in ensuring the maintenance and repair of common property, and the right to seek court orders to access Selkirk's property was not precluded by her refusal to cooperate. The court held that the unreasonable conduct of Selkirk in obstructing the inspection and repair process could be considered in determining the extent of damages. The owners corporation was entitled to claim damages, but the amount could be reduced to reflect Selkirk's contributory negligence. The court granted the owners corporation the authority to inspect and repair Selkirk's property and ordered her to pay the corporation for the costs incurred due to her obstruction, subject to a reduction based on her unreasonable conduct.