In the recent case of Haramis v The Owners – Strata Plan No. 51923 [2023] NSWCATCD 15, a lot owner sought an order from the Tribunal for the Owners Corporation to carry out work to a common property wall and its enclosed pipework to prevent or reduce noise transmission into the bedroom of his lot from the bathroom of an adjoining lot. The Tribunal agreed that the wall and the pipework located within it was common property.
In referring to the cases of Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157 and The Owners-Strata Plan No 33368 v Gittins [2022] NSWCATAP 130, the Tribunal stated that an owners corporation has a strict duty to repair and maintain common property. This would include maintaining the common property in a condition which allows it to serve its purpose.
In the present case, the pipework exists for the purpose of supplying water to a bathroom in the lot adjoining the applicant’s lot. The Tribunal stated that it is a necessary implication of that function that this is not done in a way that creates offensive noise in an adjoining lot. Given that offensive noise was being transmitted, there was evidently a malfunction in the pipework and this made the pipework not “serviceable” for the purposes of s 106(1) of the Strata Schemes Management Act 2015.
The Tribunal rejected the Owners Corporation’s argument that the noise transmission was a nuisance caused by the adjoining lot which did not involve the Owners Corporation. This is because there was no evidence that the occupants of the adjoining lot was engaging in conduct other than ordinary use of their bathroom. As such, no unreasonable use of the adjoining lot’s bathroom was established on the evidence before the Tribunal.
As such, the Tribunal concluded that the Owners Corporation’s duty to maintain the pipework in good and serviceable repair was enlivened by the malfunctioning pipework. In refusing to carry out remedial works to prevent the offensive noise transmission by the malfunctioning pipework, the Owners Corporation was in breach of its obligation to repair and maintain the common property and an order was made requiring the Owners Corporation to carry out the necessary remedial works.
An interesting point to note was that the Owners Corporation objected to the scope of work obtained by the applicant on the basis that it was invasive and disruptive (the Owners Corporation had not submitted its own scope of works). The Tribunal held that the Owners Corporation was not released from its duty to maintain common property simply due to the disruption and inconvenience that may be caused to lot owners during maintenance works.
This case serves as yet another reminder to owners corporations that it must be vigilant in identifying and performing its strict duties to maintain common property.
This is general information and should not be considered to be legal advice. You should obtain legal advice specific to your individual situation.
Authors: Jasmin H.Singh & Allison Benson
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