Last Updated on 31/07/2026 by Damin Murdock
In strata schemes, the scope of an Owners Corporation’s duty to repair common property is central to disputes regarding building defects and maintenance. In this guide, we break down the statutory obligations of Owners Corporations, the reality of strict liability, and what lot owners must prove to win their case.
The Statutory Duty
The Owners Corporation is legally responsible for the common property of a strata scheme. Under section 106(1) of the Strata Schemes Management Act 2015 (NSW) (the Act), the Owners Corporation has a mandatory duty to properly maintain and keep common property in a state of good and serviceable repair.
Strict Liability
Owners Corporations cannotescape liability even if it is actively trying to fix a problem. In Siewa Pty Ltd v The Owners Strata Plan 35042, NCAT reiterated that the duty under section 106(1) is “not one to use reasonable care to maintain and keep in good repair the common property, nor one to use best endeavours to do so, nor one to take reasonable steps to do so, but a strict duty to maintain and keep in repair.”
An Owners Corporation cannot use the defence that “reasonable steps have been taken” to avoid liability for failing to maintain common property, because this is a strict liability obligation.
Claiming Damages Under Section 106(5)
Under section 106(5) of the Act, a lot owner can recover damages for any reasonably foreseeable loss resulting from the Owners Corporation’s breach of its statutory duty. NCAT’s power to award these financial orders was confirmed by Vickery v The Owners. However, winning a damages claim requires substantial proof. The burden of proof falls on the lot owner to prove these elements:
- That the Owners Corporation failed to maintain or repair the common property
- That the owner suffered financial loss directly resulting from that specific breach, and that the loss was reasonably foreseeable
- The exact amount of the financial losses
- Whether the owner took reasonable steps to mitigate the loss.
Seeking Work Orders
Owners can ask for work orders instead of, or in addition to, damages under s 232 and/or s 241 of the Act. The work order compels the Owners Corporation to rectify building defects.
If a lot owner is seeking a work order, the application must include a highly specific scope of rectification works, leaving no room for ambiguity.
Conclusion
Strata disputes involving construction defects and common property maintenance require a strategic legal approach. At Leo Lawyers, we are experienced in building and construction disputes. If you need legal advice, feel free to contact Damin Murdock at Leo Lawyers via our website, on (02) 8201 0051 or at office@leolawyers.com.au. Further, if you liked this article, please subscribe to our newsletter via our Website, and subscribe to our YouTube , LinkedIn, Facebook and Instagram. If you liked this article or video, please also give us a favourable Google Review.
DISCLAIMER: This is not legal advice and is general information only. You should not rely upon the information contained in this article, and if you require specific legal advice, please contact us.
Damin Murdock (J.D | LL.M | BACS - Finance) has over 17 years of experience as a commercial lawyer. He helps businesses navigate construction and technology law. Damin has held several big leadership roles, including serving as a director of a national law firm and the Chief Legal Officer for Lawpath.
He has personally helped more than 2,000 startups and small businesses. With over 300 five-star reviews, his clients clearly value his practical advice and simple way of explaining things. Damin has also hosted over 100 webinars that thousands of people have watched to get reliable legal help.
