McElwaine v The Owners – Strata Plan No. 75975 [2017] NSWCA 2 (20 September 2017)

Lot Owner’s Claim in Nuisance against Owners Corporation

The NSW Court of Appeal in McElwaine v The Owners – Strata Plan No. 75975 [2017] NSWCA 2 (20 September 2017) has held that a lot owner has the right to claim damages against an owners corporation in nuisance.  His Honour Justice White JA held:

“26. … Rather, an owners corporation, as legal owner of the common property, may owe a general law duty of care or a general law duty not to create or to abate a nuisance, and not merely a statutory duty that can be enforced only through the mechanisms provided in Ch 5 of the SSM Act. Contrary to the view of the primary judge, decisions of this Court do not support the view that such a general law duty is excluded. To the contrary, the decision in Ridis and in Owners – Strata Plan 21702 v Krimbogiannis [2014] NSWCA 411 proceed on the assumption that such general law duties can exist in addition to the statutory duty of repair. Thoo does not decide to the contrary. Neither the SSFD Act nor the SSM Act negate the rights of a lot owner or occupier of a lot to enforce an owners corporation’s duty in respect of the management or repair of the common property that is owed to an owner or occupier of a lot in that capacity. The appellant’s right to sue at common law is preserved by s 226. Accordingly, in my view the appeal should be allowed.

Please note that the information contained in this article is not legal advice and should not be relied upon. You should obtain legal advice before you take any action or otherwise rely upon the contents of this article.