In McElwaine v The Owners – Strata Plan 75975 [2017] NSWCA 239, McElwaine was the registered proprietor of a unit in an apartment building managed by an owner’s corporation. He sued the owner’s corporation for their alleged failure to repair waterproofing defects in the common property. The water damaged his unit and McElwaine claimed damages for common law nuisance. At the Supreme Court the owner’s corporation were successful in arguing that the effect of the Strata Schemes Management Act (SSM Act) was to bar McElwaine from bringing a common law action.

On appeal, the Court of Appeal unanimously overturned the Supreme Court’s decision, finding that the SSM Act does not exclude the common law. Individual lot owners are still owed general law duties of care, not merely duties which can be enforced through the statutory scheme. Therefore, McElwaine had a common law right to sue the owners for nuisance, which is a breach of their responsibility to control and manage the common property with due care and skill.

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