There is a plethora of cases where unit owners have made successful claims for compensation against the owners corporation in circumstances where there were defects in the common property of the unit block, which subsequently caused water damage to the owners’ units.
In the case of Trevallyn-Jones v Owners Strata Plan No 50358 [2009] NSWSC 694, it was held by the Court that the statutory duties owed by an owners corporation could not be discharged as this was an absolute duty owed. Here, Ms Trevallyn-Jones alleged that the owners corporation was in breach of its statutory duty as it failed to properly maintain and repair the balcony floor and walls so as to prevent rainwater from penetrating into the interior of her unit, and the owners corporation failed to repair damage to the parquetry floor of the unit which had resulted from water penetration.
Ms Trevallyn-Jones sought rent which could have been obtained had the unit been leased, as well as an order pursuant to section 229 of the Strata Schemes Management Act 1996 (NSW) that any damages or costs payable by the owners corporation pursuant to any order in the proceedings (and any interest thereon) be paid from contributions levied only in relation to lots in the strata plan other than Ms Trevallyn-Jones’ lot. The defendant argued a causation/mitigation argument, stating that the actions of Ms Trevallyn-Jones contributed materially to the extent of the damage incurred due to her hindrance in failing to provide workmen access to her apartment, failure to approve works to be carried out, and criticism and harassment of tradesmen.
It was found that it was not unreasonable for Ms Trevallyn-Jones to wish to have reasonable notice so that she could arrange for herself or a representative to be present in the unit during the works. The Court found that the fact that Ms Trevallyn-Jones commented in detail in correspondence as to the works carried out (and even on occasion foreshadowed or threatened litigation or made demands in relation to the works) did not lead to a conclusion that she “harassed” the workmen or prevented the works being carried out.
With regards to access to the apartment it was held that Ms Trevallyn-Jones did not cause the difficulties in relation to access. Specifically:
i. She was not asked for access on specific days.
ii. On the occasions when Ms Trevallyn-Jones received a request for access on a specific date (other than when she asked to reschedule the May 2005 access for family illness reasons), she complied with that request.
iii. There were numerous pieces of correspondence where she proffered her mobile number/contact details to assist in arranging access.
iv. Insofar as there were complaints as to difficulties in co-ordinating start dates or seeking access, some of those seemed referable to miscommunication.
Ultimately, Ms Trevallyn-Jones was awarded damages of approximately $50,000 for foregone rent over the relevant period as well as for the costs of experts’ reports and the damages to property/cleaning costs. Orders were also made that the damages and costs payable by the defendant as a result of the proceedings (including the defendant’s costs) had to be paid from contributions levied only in relation to lots in Strata Plan No 50358 other than the plaintiff’s lot.
In summary, if your property has been affected by your owners corporation’s failure to maintain and keep in good repair the common property of your building, you may be entitled to be paid compensation for financial losses.
If you have any questions or concerns please contact Chamberlains and talk to one of our insolvency and restructuring lawyers today.
If you have any questions or concerns please contact Neil Bookseller of our Litigation & Restructuring Team on 02 6188 3600