The decision in Colman v The Owners – Strata Plan 61131 [2025] NSWSC 63 arose from a dispute between a lot owner and the owners corporation of a residential strata scheme in Pyrmont, Sydney.
Initially, the owner’s corporation engaged a contractor to repair a water leak from an expansion joint on the lot owner’s rooftop terrace, which formed part of the common property within the strata scheme. While those repairs were underway, the lot owner separately arranged for the same contractor to undertake additional renovations to the terrace without obtaining prior approval, including removing and replacing tiles and repairing the waterproofing barrier. After those additional works were completed, the lot owner sought retrospective approval by submitting a building application to the strata committee. However, the application was refused as the work could not be classified as minor renovations, and the committee lacked authority to approve works of that scale, which instead require approval by the owner’s corporation at a general meeting prior to commencement.
The lot owner sought to recover the substantial costs of the additional common property and associated lot property work under s 106(5) of the Strata Schemes Management Act 2015 (NSW) (‘the Act’), arguing that the initial repairs authorised by the owner’s corporation were insufficient and that compensation for the independently arranged works was therefore justified. The tribunal dismissed the claim, finding that the waterproofing and tiling works were part of the lot owner’s renovation rather than repairs to a defect in the common property, and therefore were not recoverable as damages under s 106(5) of the Act. It also held that it could not retrospectively approve the works under s 126(2) of the Act because the owner’s corporation were not consulted and couldn’t have refused consent, a decision upheld in subsequent appeal to the NSW Supreme Court.
Failure to obtain the required approval before undertaking works may place lot owners at considerable risk for the following reasons:
- The owners corporation may apply to NCAT to have the unauthorised works removed and the common property returned to its original condition, at the lot owner’s expense.
- Costs incurred for unapproved works are generally not recoverable from the owners corporation, even if the works were necessary
- A lot owner may be responsible for any damage caused to common property or other lots as a result of the unauthorised works.
- Disputes may result in proceedings before NCAT and potential liability for legal and enforcement costs.
- Unapproved alterations can create complications when selling a lot and may affect purchaser confidence