Apartment owners in a ritzy Sydney suburb have conquered their body corporate in a legal battle over who should repair their timber deck balconies.
Mosman residents Annette Barnett, Laura Lillas, Tony Clarkson and Kandiah Theivendren finally defeated their apartment block strata after the long-running saga was resolved in the NSW Civil and Administrative Tribunal.
The legal stoush erupted after a report found 'certain timber decks of the apartments of the four applicant lot owners have fallen into disrepair and require replacement'.
The owners, who live in apartments nestled in the centre of one of Sydney's most sought-after and prestigious suburbs, claimed the strata had 'breached its duties'.
The tribunal heard allegations the strata failed to 'properly maintain and keep in a state of good and serviceable repair, or renew or replace, timber decks on the balconies or terraces of their apartments'.
The owners also claimed the strata failed to comply with a by-law which makes it 'responsible for major maintenance and replacement of the timber decks'.
In response, the strata claimed the timber decks were not 'common property' and that responsibility lay with the lot owners.
The tribunal, which found in favour of the lot owners in July last year, said there was 'no dispute' the timber decks had been installed and fixed on concrete slabs when the strata plan was registered in August 2013.
The Mosman apartment complex at the centre of the legal stoush
The main issue was whether the 'upper surface of the floor' was common or lot property.
A Strata Schemes Management Act 2015 by-law was also hotly contested during the timber floor legal dispute.
Clause 1 of 'by-law 26' states the 'owner of a lot shall maintain the timber decking on the balconies to keep the timber decking in good order'.
However, clause two of the by-law states the 'owners corporation shall have the timber decking on balconies re‑oiled annually to keep the timber decking aesthetically pleasing and shall be responsible for major maintenance and replacement'.
The strata's claim the by-law was 'void for uncertainty' was rebuked by the tribunal which found it was 'resolved by its terms'.
The strata also submitted by-law 26 was 'varied by special by-law 11', which 'expressed to absolve the owners corporation from various maintenance responsibilities'.
The strata also claimed by-law 26 was 'harsh, unconscionable or oppressive'.
'By-law 26 can be given some meaning,' the tribunal found.
Mosman is one of Sydney's most sought after and prestigious suburbs
'It is not unintelligible. Any difficulty in drawing the line between what does or does not constitute “major” replacement does not mean it is devoid of meaning.'
'The by-law operates so that if the obligation on the owners corporation under by-law 26.2 is not triggered, the obligation on a lot owner under by-law 26.1 applies.'
The strata also submitted 'work orders should not be made because it should be permitted to decide for itself the particular form of repair'.
However, the tribunal found in favour of the lot owners and ordered the strata to replace the timber decking.
'Within six months of the date of these orders, the respondent [the strata], using appropriately qualified and licensed persons, is to carry out and complete the following work in a proper and competent manner in accordance with all applicable laws and standards,' the tribunal ordered.
But the joy for the lot owners was short-lived after the strata appealed the decision.
That appeal was mostly dismissed in a decision handed down on February 19.
The appeal tribunal ordered the work to proceed but overturned a decision to award the lot owners costs and ordered the matter be remitted back to the tribunal for further consideration.
Parties have also been invited to make submissions regarding appeal costs.
