The decision in McArthur v The Owners – Strata Plan No. 30924 [2025] NSWCATCD 207 provides a useful reminder of the difficult balancing exercise owners corporations often face when responding to urgent repairs.
The case dealt with the all too familiar scenario in strata: water leaking from one lot into another, urgent investigative works, patch repairs to a bathroom shower recess, and a dissatisfied lot owner alleging the works were defective, unauthorised and caused damage to their property.
Ultimately, the Tribunal dismissed the lot owner’s claim in its entirety. However, the decision contains several important findings for both owners corporations and lot owners.
What was the “Emergency”?
The owner of lot 27 reported that water was leaking from lot 29 into their lot, which was below lot 29. In their report of the leak, they noted that the tenant in lot 27 described the water ingress issue as “urgent” and expressed concern about the waterproofing being compromised.
The owners corporation arranged for a plumber to investigate the leak. Their investigation identified issues with the shower base and waterproofing in lot 29. Works were subsequently undertaken to repair lot 29’s shower recess.
What was lot 29’s claim?
The owner of lot 29 later commenced proceedings alleging, among other things:
- the owners corporation entered their lot without authority and unlawfully because it was not an “emergency”;
- the repairs were defective and did not comply with Australian Standards;
- the replacement tiles did not match the existing bathroom tiles;
- a tile had been cracked during the works;
- mould had developed in the lot; and
- the owner had suffered rental and remediation losses.
The owner of lot 29 sought damages exceeding $47,000 together with further rectification works.
“Emergency” Under Section 122
One of the key findings in this case was the Tribunal’s interpretation of “emergency” under section 122(3) of the Strata Schemes Management Act 2015.
The Tribunal accepted that the owners corporation was entitled to enter lot 29 without the owner’s consent because the circumstances constituted an emergency. Importantly, the Member adopted an ordinary meaning approach, describing an emergency as “an unforeseen occurrence and a sudden and urgent occasion for action.”
The Tribunal considered the following matters particularly relevant:
- ongoing water ingress into another lot;
- concerns regarding further property damage;
- suspected waterproofing failure;
- the inability of occupants to use the bathroom; and
- the owners corporation’s strict obligations under section 106 to repair and maintain common property.
This is an important practical reminder that owners corporations are expected to act promptly when there is a threat to common property failures. Delays in responding to water ingress complaints can expose an owners corporation to much greater liability down the track.
Interestingly, the Tribunal also found that the lot owner’s property manager had effectively authorised access by requesting the strata manager urgently arrange a plumber to investigate the issue.
Takeaways for owners corporations and strata managers:
- urgent water ingress complaints should be treated seriously and acted upon promptly;
- section 122 emergency powers can permit immediate access where ongoing damage is occurring;
- the Tribunal will take a pragmatic approach to considering what is an emergency.
The Tribunal in McArthur also discussed the sufficiency of repairs and whether mismatched tiles equated to damage under section 106. More on these points in Part 2: Sufficiency of repairs & damage under s106
This is general information and should not be considered to be legal advice. You should obtain legal advice specific to your individual situation.
Author: Laura Skillicorn