Ducrou v The Owners - Strata Plan No SP33591 [2025] NSWCATCD 136;

1. The Tribunal's jurisdiction to hear and determine this matter is conferred by the Civil and Administrative Tribunal Act 2013 (NSW) and the Strata Schemes Management Act 2015 (NSW) ("SSMA").
2. The Tribunal has a broad power under s 232 of the SSMA to make orders to settle a complaint or dispute about the operation, administration, or management of a strata scheme, including a dispute concerning the exercise of, or failure to exercise, a function conferred or imposed by the SSMA or the by-laws of a strata scheme.
3. The Tribunal is satisfied that the issues raised by the Applicant fall within this scope and that it has the jurisdiction to make the orders sought.

1. In determining this matter, the Tribunal has had regard to the following evidence;

(1) a bundle of documents filed by the Applicant on 1 April 2025, marked as Exhibit A1 at the hearing;

(2) a bundle of documents filed by the Respondent on 14 May 2025, marked as Exhibit R1 at the hearing;

(3) a bundle of documents filed by the Applicant on 28 May 2025, marked as Exhibit A2 at the hearing;

(4) the sworn oral evidence of Ms Tina Ducrou for the Applicant;

(5) the sworn oral evidence of Mr Greg Finney and Ms Rhonda Boardman for the Respondent.

1. A procedural issue arose at the commencement of the hearing concerning whether the Respondent's had been served a copy of the document marked Exhibit A2. Following sworn evidence from the parties, the Tribunal was satisfied that the document had been served on the Respondent in accordance with the Tribunal's orders. The Respondent declined an offer of an adjournment to review the material, and the hearing proceeded.
2. Where relevant, the specific documentary and oral evidence relied upon are described in the Tribunal's findings below.

1. The resolution of this matter requires the Tribunal to determine three principal issues in sequence. Firstly, whether the Applicant's lot is part of the strata scheme administered by the Respondent. Secondly, whether the gutters and downpipes affixed to the Applicant's dwelling are common property for which the Respondent is responsible. Thirdly, if they are common property, whether the Respondent has breached its duty to maintain them and if an order compelling it to undertake work is warranted.

1. A threshold issue in this dispute is the Applicant's expressed confusion regarding which strata scheme her lot legally belongs to. She noted that her contract of sale identifies the property as part of Strata Plan 63807, while she pays levies to The Owners - Strata Plan 33591. An analysis of the title search documents for the original strata scheme, read in conjunction with the Strata Schemes Development Act 2015 (NSW) ("SSDA"), resolves this uncertainty.
2. The key to understanding the relationship between the two strata plans lies within the Title Search document for Folio CP/SP33591, which was tendered in evidence. The First Schedule of that title search identifies the registered proprietor of the common property for the entire development as "The Owners - Strata Plan No 33591". This is the single legal entity responsible for the administration and maintenance of the common property for the entire scheme.
3. The definitive legal connection between the two plans is found on page two of the title search, under the heading "Schedule of Unit Entitlement." That schedule details the subdivision history of the original scheme and explicitly includes Strata Plan No 63807 as a subdivision of Lot 8 SP 33591. The relevant entry shows that Strata Plan 63807 was created by the legal subdivision of Lot 8, which was a "development lot" within the original Strata Plan 33591.
4. The structure evidenced in the title search is enabled by the SSDA. Part 5 of the Act provides the legal framework for developing a parcel of land in stages. Section 14(1) SSDA provides the specific mechanism for that to occur, providing that a development lot may be subdivided into lots, or lots and common property, by the registration of a plan as a strata plan of subdivision. In this case, Lot 8 of Strata Plan 33591 was a development lot that was legally subdivided to create the new lots and common property of Strata Plan 63807. Upon the registration of the strata plan of subdivision, the new lots did not form a separate scheme but were legally integrated into the existing strata scheme. As an owner of a lot in that subsequent stage, the Applicant automatically became a member of the existing Owners Corporation for Strata Plan 33591.
5. The Tribunal therefore finds that the Applicant's lot is legally contained within Strata Plan 63807, as correctly stated in her contract of sale, and that Strata Plan 63807 is a subsidiary strata plan created by the lawful subdivision of a development lot within the original Strata Plan 33591. As the owner of a lot within the single, consolidated scheme, the Applicant's obligation to pay levies to The Owners - Strata Plan No 33591 is correct.

1. The next issue for determination is which party is responsible for the maintenance and repair of the gutters and downpipes affixed to the Applicant's dwelling. The resolution of that issue turns on the proper construction of a notation recorded on Strata Plan 63807, which is in evidence before the Tribunal.
2. That notation states; "The whole of the Structure of the Buildings, with the exception of all pipes, wires, ducts, and cables, erected upon Lots ... forms part of that Lot and is not common property."
3. As a preliminary point, a strata scheme is comprised of lots and common property. 'Common property' was defined in section 5 of the now repealed Strata Schemes (Freehold Development) Act 1973 (NSW) (repealed), the legislation in force at the time of the scheme's initial registration, as "...so much of a parcel as from time to time is not comprised in any lot." Accordingly, property that is not identified as part of a lot on the strata plan is, by definition, common property.
4. The key to the interpretation of the notation lies in the words of exception contained within the parenthesis: "with the exception of all pipes, wires, ducts, and cables". This phrase functions to expressly exclude the specified items from forming part of the lot. This means that while the structure of the building is lot property, the pipes, wires, ducts, and cables within it are not.
5. The resolution of this issue depends on the proper construction of the word 'pipes' as used in the notation on the strata plan. The term is not defined in the plan documents or the enabling legislation of the time. Therefore, its meaning must be ascertained by reference to its ordinary and natural meaning, considered in the context of the instrument as a whole and the purpose of the exception.
6. In the technical context of a registered plan, it is also appropriate to have regard to the common parlance of the term within the construction and development sectors. The National Construction Code (NCC) and the Plumbing Code of Australia (PCA), both of which reference the Australian Standard AS/NZS 3500.3 Stormwater Drainage, are the authoritative standards for roof drainage systems. Within those publications, roof guttering systems are not treated as separate isolated features but as an integral component of a single water conveyance system. A gutter is defined as an 'open channel' whose sole function is to collect rainwater and convey it to a downpipe. It is the open, initial part of a continuous system designed to manage water. To separate the gutter from the downpipe would be to sever a single functional unit into two parts, which would be an artificial and impractical construction.
7. Adopting a purposive approach, the clear intention of excepting "all pipes, wires, ducts, and cables" from a lot is to ensure that essential shared services are treated as common property, thereby placing the maintenance obligation on the Owners Corporation. A reasonable person reading the plan would understand that the entire roof drainage system is intended to be treated as a single, integrated network. While a gutter is an open conduit and a downpipe is an enclosed one, they are both functionally 'pipes' for the purpose of conveying water. I am therefore satisfied that gutters and downpipes fall squarely within the ordinary and technical meaning of 'pipes' as used in the notation. As they are explicitly excluded from being part of the lot, they are, by definition, common property.
8. This finding is consistent with the position the Respondent ultimately adopted at the hearing. Its representative, Mr Finney, conceded that the Owners Corporation now accepts that the gutters and downpipes are common property for which it is responsible.
9. For those reasons, the Tribunal finds that the gutters and downpipes affixed to the Applicant's dwelling are common property. Accordingly, the Respondent has a strict statutory duty under s 106 SSMA to maintain and keep this common property in a state of good and serviceable repair.

1. Having established that the Respondent is responsible for the gutters and downpipes, the final issue is whether an order should be made compelling it to carry out repairs. The Respondent did not concede that the Applicant's gutters required repair, submitting that the matter would be addressed through its capital works program now that responsibility had been determined.
2. The Applicant gave evidence that she has been complaining about the state of her gutters for five years. In support of her application, she relied on photographic evidence contained in Exhibit A2, which depicts gutters blocked with leaves and debris, mould on the eaves, and water overflowing down the side of the building. The Applicant gave sworn evidence that she took those photographs herself. She also gave evidence, which was not contested, that inspectors engaged by the Respondent had failed to inspect her property to assess the condition of the gutters.
3. The duty imposed on an owners corporation by s 106 of the SSMA is a strict duty to maintain common property. It is not merely a duty to take reasonable steps or to address issues if and when a budget allows. A breach of that duty occurs as soon as an item of common property is no longer in a state of good and serviceable repair. The Respondent's submission that it will prioritise the work in the future does not remedy its existing and ongoing breach of that duty.
4. The photographic and oral evidence provided by the Applicant is sufficient to satisfy the Tribunal, on the balance of probabilities, that the gutters and downpipes on her lot are in a state of disrepair. It is also clear that this has caused consequential damage to the building's eaves. Given the history of the dispute and the evidence of the Respondent's past failure to inspect the Applicant's property, the Tribunal is satisfied that a specific order is necessary to resolve the complaint and ensure the Respondent complies with its statutory obligations.

1. Having found that the Applicant's lot is part of the single, consolidated strata scheme administered by the Respondent, that the gutters and downpipes affixed to the Applicant's dwelling are common property, and that the Respondent is in breach of its statutory duty to maintain that common property, the Tribunal is satisfied that it is appropriate to make orders to resolve the dispute.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.