In brief - Problems with common property must be recognised and
An owners corporation (also known as a body corporate) has an
absolute duty to recognise and rectify problems associated with
common property. The recent decision of Mabel Dorothea Fligg v The Owners Strata Plan 53457 
NSWSC 230 emphasises the need for owners corporations to
address problems with common property promptly and effectively, or
they may face legal proceedings from the proprietors.
Numerous complaints to owners corporation about water
On 15 March 2012, the New South Wales Supreme Court handed down
judgement in Mabel Dorothea Fligg v The Owners Strata Plan 53457,
which dealt with whether the defendant owners corporation was
liable for damage and costs incurred by the plaintiff from water
leaks into her property.
Since purchasing her apartment in 2008, the plaintiff, Ms Mabel
Fligg, had encountered problems with water penetration into her
living spaces. Ms Fligg had complained to the owners corporation
numerous times and had previously commenced proceedings in the
Consumer, Trader and Tenancy Tribunal in January 2010, which
resulted in a mediated settlement and the carrying out of some
Since then, the water leakage had remained unrectified. Ms Fligg
commenced proceedings in the Supreme Court, as it did not appear
that the owners corporation was addressing the issue properly and
was unreasonably slow in investigating the problem.
Cost of rectification, damages, out of pocket expenses and
Ms Fligg's claim consisted of three components:
Claims for rectification of works and damages for the loss of
value of her apartment if the water penetration was
Claim for out of pocket expenses (namely, for consulting
engineers to report on the water penetration and for legal
Costs for commencing legal proceedings
Owners corporations have a duty to maintain and repair common
The law under
section 62 of the Strata Schemes Management Act 1996 (NSW) states in
general terms that an owners corporation must properly maintain and
keep in a state of good serviceable repair the common property and
any personal property vested in the owners corporation.
From 2008, the plaintiff has been denied the proper use and
enjoyment of her property due to substantial water leakages into
her apartment. Although an agreement had been made for the
investigation of the problems and for undertaking remedial works in
2010, the plaintiff continued to experience water penetration up
until the commencement of the court hearing.
Owners corporation claims that it took reasonable steps
Although the owners corporation contended that it had taken
reasonable steps to comply with the strict requirements of section
62 of the Act, the court found that it had an obligation to rectify
the problem associated with the common property, rather than merely
showing that it had acted reasonably.
Supreme Court decides that plaintiff is entitled to recoup
As the court held that it was unlikely that repair work would
have been done or the repair resolution reached except by the
commencement of legal proceedings, Ms Fligg was entitled to her out
of pocket expenses, legal fees and other costs, as they were
The owners corporation had to undertake remedial works
immediately to rectify the water penetration problem.
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