Strata Balcony Timber Decking Dispute: When Does Terrace “Timber Flooring” Become Common Property, Triggering an Owners Corporation’s Full Repair Duty Under Section 106?

Based on the authentic Australian judicial case Applicant v Respondent [2025] NSWCATCD 67, this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds.

Chapter 1: Case Overview and Core Disputes

Basic Information

Court of Hearing: New South Wales Civil and Administrative Tribunal, Consumer and Commercial Division

Presiding Judge: Deputy President G Sarginson

Cause of Action: Strata schemes dispute concerning the characterisation of balcony and terrace timber decking as common property or lot property, and alleged breach of the owners corporation’s statutory duty to maintain and repair common property under section 106 of the Strata Schemes Management Act 2015 (NSW), with remedial orders sought under section 232 and related relief.

Judgment Date: 22 August 2025

Core Keywords:

Keyword 1: Authentic Judgment Case

Keyword 2: Strata Schemes Management Act 2015 (NSW)

Keyword 3: Section 106 duty to maintain and repair

Keyword 4: Balcony and terrace timber decking

Keyword 5: Common property versus lot property

Keyword 6: Scope of rectification and expert evidence divergence

Background

Two adjoining lot owners in a coastal Sydney strata building raised a deceptively simple question that often fractures strata communities: who pays when a balcony or terrace timber decking system deteriorates and becomes unsafe or dysfunctional?

The Applicants owned neighbouring lots on Level 1. Their terraces were largely covered by a proprietary timber decking system installed during original construction. Over time, visible decay, distortion, drainage ponding, and safety hazards emerged, especially in exposed areas. The Applicants pressed the Respondent owners corporation to undertake substantial rectification works. The Respondent resisted, arguing that the decking was lot property and, even if common property, only modest repairs were warranted.

At stake was not only money, but the governance logic of strata: whether a structural, fixed decking system that integrates with drainage and slab levels is properly treated as part of the building’s common fabric, or as a private surface for each lot owner to maintain. The parties’ history included earlier strata disputes and by-law proposals that added procedural and strategic complexity.

Core Disputes and Claims

Core Disputes:

1. Characterisation Dispute: Whether the timber decking system on the terraces and balconies should be properly characterised as common property or lot property, having regard to the strata plan, the nature of the decking as installed, and the legal principles governing fixtures and strata boundaries.

2. Statutory Duty Dispute: If the timber decking is common property, whether the Respondent breached its duty under section 106 of the Strata Schemes Management Act 2015 (NSW) to maintain and repair common property.

3. Remedy and Scope Dispute: If a duty was breached, what remedial orders were appropriate: full removal and replacement of the decking system proximate to the Applicants’ lots, or partial replacement limited to exposed sections.

4. Causation and Responsibility Dispute: Whether alleged neglect, misuse, or placement of heavy items by lot occupants caused or materially contributed to deterioration, such that the Respondent could resist liability or narrow remedies.

Applicants’ Relief Sought:

• Orders requiring the Respondent to rectify the timber decking described as common property, engaging suitably qualified and licensed contractors, and performing works in accordance with applicable building legislation and standards.

• Damages under section 106(5) of the Strata Schemes Management Act 2015 (NSW).

• Additional relief relating to the validity or effect of a strata resolution and by-law initiative concerning deck maintenance responsibility.

Respondent’s Position and Relief Sought:

• Dismissal of the Applicants’ proceedings.

• Confirmation that a deck-related by-law should be registered.

• Costs orders against the Applicants.

Chapter 2: Origin of the Case

The dispute began like many strata conflicts: not with a single catastrophic failure, but with the slow accumulation of practical annoyance, safety concern, and governance disagreement.

The building was registered as a strata scheme in late 2015. The Level 1 lots enjoyed large terrace areas, a lifestyle feature that materially influences property value. The timber decking system was not a casual add-on. It was installed as part of the original build, sitting close to the slab, fixed to battens and packers, and interacting with drainage gradients and outlets.

The Applicants observed progressive deterioration. In everyday terms, the decking stopped behaving like a safe outdoor floor. Boards swelled and pressed against each other. Gaps closed. Water pooled after rain. Some boards felt spongy, decayed, and became trip hazards. Holes emerged and widened. In a coastal environment, moisture and exposure amplified the risks.

As these issues became visible across multiple terraces, the dispute shifted from private maintenance to collective responsibility. Other lot owners had experienced similar performance issues. That pattern mattered because it suggested systemic design or installation shortcomings rather than isolated misuse.

The procedural storyline also included earlier internal and external steps:

• Attempts to address building defects more broadly, including expert engagement and negotiations linked to statutory warranty timing under the Home Building Act 1989 (NSW).

• Earlier strata conflict involving another lot’s terrace, where the owners corporation had previously taken a position that decks were lot property and lot owners were responsible.

• A by-law campaign aimed at clarifying or transferring deck maintenance obligations to lot owners, creating a strategic backdrop: if the decks were common property, a by-law could potentially shift responsibility only through lawful mechanisms and, in certain circumstances, consent requirements.

Conflict Foreshadowing: The decisive moment was the collision between two realities.

First reality: the deck system was failing in ways that looked structural and systemic, tied to drainage, ventilation, and installation. That reality pushed towards common property responsibility.

Second reality: for years, many owners had behaved as if the decks were their private responsibility, with some owners undertaking repairs themselves and budgets being planned on that assumption. That reality pushed towards lot property responsibility and fairness concerns across the scheme.

Once formal mediation through NSW Fair Trading failed, the dispute moved into Tribunal litigation, where assumptions and informal practice had to yield to evidence, statutory interpretation, and the legal characterisation of property.

Chapter 3: Key Evidence and Core Disputes

Applicants’ Main Evidence and Arguments

1. Lay Evidence in Affidavits

• The Applicants’ affidavits described progressive deterioration, including swelling, buckling, distortion, pooling, decay, holes, fungal growth, and trip hazards.

• The Applicants emphasised that many areas were installed as part of original construction, and that drainage and maintenance access limitations suggested a design issue rather than simple owner neglect.

1. Documentary Evidence

• Historical legal advice obtained by the owners corporation in an earlier dispute, expressing the view that the deck formed part of the flooring system and was common property due to affixation method and integration with the slab.

• Minutes and agendas of meetings, including motions proposing by-laws designed to “absolve” the owners corporation from certain responsibilities and assign balcony tiles, pavers, and decking to lot owners.

• Correspondence from strata managers, including statements about whether a by-law would be registered.

1. Expert Evidence

• A flooring inspection report addressing timber performance and deterioration mechanisms, noting issues like insufficient clearance, lack of ventilation, and the practical impossibility of cleaning and maintaining the cavity under the decking due to lack of access panels.

• A building consultant report supporting a broad rectification approach, contending that the system proximate to the Applicants’ lots required removal and replacement.

• Joint Expert Report and Scott Schedule materials created under Tribunal direction, detailing points of agreement and disagreement and proposed scopes of works.

Applicants’ Core Theory:

• The decking system was part of the building’s common property because it formed part of the terrace floor system and interacted with drainage and slab configuration.

• The Respondent had a non-delegable statutory duty under section 106 to maintain and repair common property, and that duty required meaningful rectification rather than token patching.

• The deterioration was largely attributable to design and installation shortcomings, not ordinary maintenance issues.

Respondent’s Main Evidence and Arguments

1. Lay Evidence from Strata Committee Members and Strata Managers

• Evidence asserted that since registration of the scheme, lot owners had been told and believed they owned their decks.

• The owners corporation’s capital works planning assumed lot owners were responsible for deck repairs.

• Some lot owners had repaired or replaced decks at their own expense, demonstrating an established practice.

1. Governance and By-law Evidence

• Reliance on a narrative that earlier proceedings were resolved in a way that contemplated a by-law aligning records with owner expectations about deck responsibility.

• Argument that Applicants were seeking to exploit delay in by-law registration to bring inflated claims, seeking capital improvements rather than like-for-like repair.

1. Causation Allegations

• Allegations that damage patterns matched heavy objects, mats, or inadequate maintenance by lot owners, suggesting owner neglect as a contributor.

1. Expert Evidence

• A building consultant report advocating limited works, primarily replacing boards in exposed areas and avoiding full system replacement, emphasising that costs between approaches were substantial.

Respondent’s Core Theory:

• The decking was lot property; therefore, the Respondent owed no section 106 maintenance duty in respect of the decking.

• Even if common property, appropriate remedies were limited repairs, not wholesale replacement.

• Applicants’ claim was disproportionate, unfair to other owners, and potentially contaminated by lot owner neglect.

Core Dispute Points

1. The Property Characterisation Module

• What does the strata plan show about boundaries?

• Is the deck a fixture that becomes part of common property because it is permanently fixed to the slab and forms part of the flooring system?

• Does the practical and structural integration with drainage and slab gradients point to common property characterisation?

1. The Duty and Breach Module

• If common property, did the Respondent fail to maintain and repair it in a state of good repair?

• How does the Tribunal evaluate reasonableness of timing, scope, and response to known deterioration?

1. The Remedy Module

• Does the evidence require full removal and replacement of the system, or limited replacement in exposed areas?

• Can undercover areas be left intact if performing well?

• How does cost influence remedy selection in strata duty cases?

1. The Causation and Neglect Module

• Is there persuasive evidence that lot owner neglect materially caused the damage?

• Even if some misuse occurred, does it displace or reduce the Respondent’s statutory duty where the underlying design is defective?

Chapter 4: Statements in Affidavits

Affidavits are not merely storytelling devices in Australian civil proceedings. They are engineered narratives: a structured blend of facts, documents, and inferences designed to survive cross-examination and to supply a coherent pathway to the legal relief sought.

In this dispute, the Applicants’ affidavits performed three strategic functions.

First, they anchored the Tribunal in lived reality: the terrace floor became unsafe, visually deteriorated, and failed to drain. This is crucial because section 106 disputes can otherwise become abstract. By describing sponginess underfoot, pooling after rain, and holes forming in boards, the Applicants moved the matter from aesthetic complaint to functional failure and safety risk.

Second, they embedded the history of governance decisions. By exhibiting legal advice, meeting agendas, and motions about deck maintenance, the Applicants framed the Respondent as a decision-maker who had long known the issue and had tried to reallocate responsibility through governance mechanisms.

Third, they linked deterioration to systemic conditions. The Applicants’ affidavit narrative drew attention to the low deck clearance, poor ventilation, and lack of access for cleaning debris beneath the deck, all of which support an inference that ordinary lot owner maintenance would not reasonably prevent deterioration.

The Respondent’s affidavits, by contrast, were crafted to establish a community understanding and practice: owners were informed decks were theirs; budgets were built on that understanding; owners acted on it. This approach is common in strata disputes because it speaks to fairness and expectation, even though it cannot override statutory characterisation if the property is legally common property.

The Respondent’s affidavits also advanced a defensive causation narrative: the damage patterns were consistent with heavy pots, furniture placement, and neglect, suggesting the Applicants’ own conduct may have contributed.

Strategic Intent Behind Procedural Directions Regarding Affidavits

The Tribunal’s procedural management recognised that this matter had two separate risks:

• Evidence overload: large volumes of lay evidence can obscure the real legal issues.

• Expert divergence: where experts sharply disagree, the Tribunal must force clarity.

By directing the production of a coherent joint expert report and allowing amendment to include section 106(3) arguments, the Tribunal structured the dispute into its true decision points: what is the property, what is the duty, what is the scope of rectification, and what defences are properly open.

Affidavits therefore served as the scaffolding for two later stages: cross-examination to test credibility and consistency, and expert conclave mechanisms to distil technical disagreements into discrete questions.

Chapter 5: Court Orders

Before final orders, the Tribunal issued procedural directions to control complexity and prevent the litigation from collapsing into unfocused debate.

Key procedural arrangements included:

• Listing two related proceedings for hearing together due to overlapping factual and legal issues, ensuring consistency of findings and remedies.

• Granting leave for the Respondent to amend its pleaded defence to raise statutory arguments, including section 106(3) of the Strata Schemes Management Act 2015 (NSW).

• Directing expert witnesses to confer and prepare a joint expert report, identifying areas of agreement and disagreement and answering Tribunal-framed questions.

• Conducting concurrent expert evidence, commonly called expert conclave or hot-tubbing, to allow the Tribunal to interrogate disagreements in a structured and comparative manner.

• Establishing a post-hearing timetable for written submissions, replies, transcript filing, and compilation of a court book.

These directions reflect a practical truth: in building and strata disputes, the legal rule is often clear, but the technical facts are contested. The Tribunal’s job is to build a reliable bridge from technical evidence to statutory duty and remedy.

Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic

The hearing unfolded as a conflict between two competing forms of certainty.

One form of certainty was communal expectation: many owners believed decks were theirs, maintained them, and budgeted accordingly.

The other form of certainty was structural reality: the decking was installed as part of the building and functioned as a system integrated with slab configuration and drainage.

The Tribunal heard lay evidence first. The Applicants gave evidence and were cross-examined. The Respondent’s strata representatives and associated witnesses were cross-examined. In cross-examination, three kinds of pressure points typically arise in such cases, and they were present here in substance:

1. Consistency under time pressure: whether witnesses remained consistent about what owners were told and when.

2. Documentary confrontation: whether meeting minutes, agendas, emails, and legal advice contradicted the narrative of lot-owner responsibility.

3. Practical knowledge: whether witnesses could credibly explain how a supposedly lot-owned system could be maintained when it lacked access panels, ventilation, or practical cleaning pathways.

The second and third hearing days were dominated by the battle of experts. The Tribunal’s insistence on a detailed joint expert report and structured questions signals that the decision turned on technical chain-of-reasoning, not mere rhetoric.

The decisive evidence confrontation was the divergence between a full-system replacement approach and a limited exposed-area replacement approach. The gap was not academic. It went to cost magnitude and to whether undercover sections that appeared to perform well could be left alone without creating future risk.

The Tribunal’s method was disciplined:

• Identify what was agreed: visible deterioration in exposed areas, systemic constraints like low clearance, and the existence of drainage-related issues.

• Identify what was disputed: whether the system must be wholly removed and replaced, whether partial works were safe and sufficient, and whether waterproofing or drainage modifications were required.

• Connect the technical evidence to the statutory yardstick: whether the Respondent had complied with its duty to maintain and repair common property, and what work order properly compelled compliance.

Judicial Original Quotation Principle

“This is a dispute under the Strata Schemes Management Act 2015 (NSW) … that involves whether the owners corporation has complied with its duty to maintain and repair common property in respect of timber decking on balconies.”

This statement is determinative because it frames the Tribunal’s decision as a statutory duty case, not a moral contest about neighbourliness. Once framed as a section 106 duty dispute, the Tribunal must first resolve the property characterisation question, then evaluate compliance, and only then design a remedy that secures performance of the duty.

Chapter 7: Final Judgment of the Court

The Tribunal made orders requiring the Respondent to engage suitably licensed builders or tradespersons to perform specified works set out in a schedule to the decision, within a defined period from the date of orders.

The Tribunal also required:

• That works be performed with due care and skill, and in accordance with applicable legislation, including the Home Building Act 1989 (NSW) and the Design and Building Practitioners Act 2020 (NSW) to the extent applicable.

• That the relevant lot owners provide reasonable access to allow completion of works.

Costs:

• No order as to costs, with each party to bear its own costs, subject to a procedural timetable allowing applications to vary costs orders within specified periods.

Dismissal:

• The proceedings were otherwise dismissed beyond the making of the work orders and associated directions.

Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory

Special Analysis

This judgment has jurisprudential value because it illustrates how strata disputes are won or lost on disciplined sequencing:

1. Identify the legal character of the property.

2. Identify the statutory duty that follows.

3. Prove breach through an evidence chain that distinguishes systemic defect from owner neglect.

4. Select a remedy calibrated to compliance, not to punishment.

The unusual feature is that the dispute was not only between lot owners and the owners corporation, but also between competing internal histories of the scheme. Informal practice and budget assumptions were placed against technical evidence suggesting a system-level design and installation problem.

This case also highlights that strata communities often attempt to settle ambiguity through by-laws. Yet by-laws cannot rewrite property boundaries by assertion, and they cannot avoid the statutory duty where the subject matter is common property unless the law permits a transfer of responsibility through valid mechanisms and, where required, proper consents.

Judgment Points

1. Section 106 disputes are not solved by habit or belief

The Respondent advanced a narrative of long-standing belief that decks were lot-owned and that owners maintained them. That narrative has emotional force, but the Tribunal’s reasoning structure requires legal characterisation first. In strata law, the question “who has been paying” is not identical to “who must pay.” A scheme can operate for years on an assumption that later proves legally wrong.

1. The Tribunal treated expert disagreement as the real battleground

The Tribunal observed that closing submissions focused less on lay evidence and more on expert evidence. This reveals a practical lesson for litigants: in building-related strata disputes, the side that controls technical clarity often controls the result. The joint expert report mechanism forced articulation of what works were necessary and why.

1. Remedy design centred on compliance, not perfection

The Applicants sought full removal and replacement of the timber decking system proximate to their lots. The Respondent argued for moderate repairs, especially limited to exposed areas. The Tribunal’s remedial orders requiring performance of works set out in a schedule reflect an approach of targeted enforceable compliance: a work order must be specific enough to be executed, supervised, and audited.

1. The Tribunal recognised the cost asymmetry but did not allow cost alone to decide duty

The difference in cost between rectification approaches was substantial. Yet the Tribunal’s task was not to pick the cheapest option. The task was to ensure the statutory duty to maintain and repair common property was performed. Cost can influence scope where multiple reasonable compliance pathways exist, but it cannot legitimise non-compliance.

1. Governance conflict can distort the litigation, but it cannot replace proof

The history of committee conflict and by-law proposals created background noise. The Tribunal acknowledged animosity and hard-fought proceedings. Yet the outcome depended on evidence and statutory application, not on who behaved better in meetings. This is a reminder to practitioners: keep the case anchored to the duty and the evidence chain.

Legal Basis

The statutory backbone of the reasoning was:

• Section 106 of the Strata Schemes Management Act 2015 (NSW): the owners corporation’s duty to properly maintain and keep in a state of good and serviceable repair the common property.

• Section 232 of the Strata Schemes Management Act 2015 (NSW): the Tribunal’s power to make orders to settle disputes or rectify contraventions, including compelling performance.

• Consideration of section 106(3) arguments raised by the Respondent, which commonly relate to limitations or defences in certain circumstances, requiring careful factual examination of causation and responsibility.

In addition, the Tribunal’s orders referenced compliance with building legislation, including the Home Building Act 1989 (NSW) and the Design and Building Practitioners Act 2020 (NSW), signalling that rectification works must meet contemporary regulatory standards where applicable.

Evidence Chain

Victory Point 1: Systemic design and installation shortcomings as a coherent explanation

Statutory Provisions: Section 106 Strata Schemes Management Act 2015 (NSW)

Evidence Chain: The Applicants’ evidence and technical materials described low clearance from deck underside to slab, lack of cross-flow ventilation, absence of access panels for debris removal, and moisture trapping that accelerates decay. These features point away from an ordinary maintenance problem and towards a system that is structurally predisposed to failure in exposed areas.

Judicial Effect: When deterioration is largely unavoidable due to design constraints, the argument that owners simply should have maintained better loses force as a complete defence.

Victory Point 2: Performance contrast between undercover and exposed zones

Statutory Provisions: Section 106 Strata Schemes Management Act 2015 (NSW)

Evidence Chain: Multiple observations indicated that undercover areas often performed well and remained aesthetically pleasing, while exposed areas exhibited severe decay and distortion. This contrast supports two decisive inferences:

• The problem was not simply universal neglect.

• Environmental exposure interacting with poor ventilation and low clearance drove deterioration.

Judicial Effect: This type of evidence helps the Tribunal calibrate remedy scope, potentially supporting selective replacement in exposed areas where justified, while challenging claims that full replacement of all areas is necessarily required.

Victory Point 3: Documentary history showing prior awareness and contested characterisation

Statutory Provisions: Section 106 Strata Schemes Management Act 2015 (NSW), Section 232 Strata Schemes Management Act 2015 (NSW)

Evidence Chain: Prior legal advice, earlier proceedings, and meeting materials demonstrate that the scheme had long confronted the characterisation issue. Even if not determinative of the legal question, such evidence supports a finding that the Respondent was on notice of potential common property responsibility and of deterioration risks.

Judicial Effect: Notice matters because it influences the reasonableness of the Respondent’s response. A duty-holder who delays action in the face of known risk is more likely to be found in breach.

Victory Point 4: The Tribunal’s insistence on a joint expert report as a truth-filter

Statutory Provisions: Tribunal procedural powers and evidentiary management principles

Evidence Chain: The Tribunal directed experts to produce a comprehensive joint expert report addressing specific questions and containing a detailed scope of works. That process narrows the battlefield to technical propositions that can be tested.

Judicial Effect: Where experts are forced to state precisely what they agree on and where they disagree, a party cannot hide behind vague assertions. Practically, the side with the clearer, more implementable compliance pathway gains advantage.

Victory Point 5: Remedy framed as enforceable work orders

Statutory Provisions: Section 232 Strata Schemes Management Act 2015 (NSW)

Evidence Chain: The Tribunal ordered engagement of licensed builders or tradespersons and performance of works in a schedule. This reflects a preference for operational remedies, not abstract declarations.

Judicial Effect: A work order is a compliance instrument. It converts legal duty into a project plan with accountability.

Victory Point 6: Integration of repair works with regulatory compliance

Statutory Provisions: Home Building Act 1989 (NSW), Design and Building Practitioners Act 2020 (NSW)

Evidence Chain: The Tribunal required works to be performed with due care and skill and in accordance with applicable legislation. This is critical in strata contexts because rectification works can themselves create liability if performed improperly.

Judicial Effect: The Tribunal’s approach reduces the risk of a second dispute arising from defective rectification.

Victory Point 7: Access obligations as part of compliance architecture

Statutory Provisions: Section 232 Strata Schemes Management Act 2015 (NSW) and practical incidentals of work orders

Evidence Chain: The Tribunal required lot owners to provide reasonable access. Without access, even correct legal outcomes fail on the ground.

Judicial Effect: Compliance is not one-sided. Even the successful party must facilitate execution of orders.

Victory Point 8: Costs neutrality as a signal about proportionality

Statutory Provisions: Tribunal costs discretion principles under the Civil and Administrative Tribunal Act 2013 (NSW) framework and related rules

Evidence Chain: Despite hard-fought proceedings and significant expenses, the Tribunal made no order as to costs, leaving each party to bear its own costs, subject to procedural avenues to seek variation.

Judicial Effect: In strata disputes, costs outcomes often reflect proportionality, conduct, and the Tribunal’s preference to avoid escalating financial warfare within a scheme unless clearly justified.

Judicial Original Quotation

“In this decision, the Tribunal has set out the lay evidence of the parties … However, in closing written submissions of the parties, little reference is made to the lay witness evidence, and the focus of the submissions is upon the expert evidence.”

This statement is determinative because it explains how the Tribunal actually decided the case: not by who told the better story, but by which technical account could be translated into a legally coherent and practically enforceable remedy under the statutory duty framework.

Analysis of the Losing Party’s Failure

The Respondent’s failure was not necessarily that it lacked any arguable case, but that its strategic foundations were comparatively weaker in the Tribunal’s required logic sequence.

1. Over-reliance on belief and practice

The Respondent emphasised that owners had long believed decks were lot property and acted accordingly. This is not irrelevant, but it is structurally secondary to legal characterisation and statutory duty. Where the Tribunal must decide property character, historical habit is a fragile substitute for plan-based and fixture-based reasoning.

1. Causation allegations without decisive linkage

Allegations that heavy pots, mats, or neglect caused deterioration can be persuasive if supported by a strong causal chain and consistent technical evidence. Yet where the system shows design constraints that trap moisture and prevent maintenance access, partial owner conduct explanations tend to look like aggravating factors rather than primary causes.

1. Remedy minimisation without a complete compliance narrative

Arguing for modest repairs can succeed when the party provides a clear, implementable scope that genuinely restores the property to a good and serviceable state. If the minimisation case appears more like cost avoidance than compliance, it loses persuasive force.

1. Governance manoeuvres cannot outrun the statute

By-law initiatives and meeting resolutions can clarify and allocate responsibilities only within legal limits. Where the underlying subject matter is common property, the statutory duty remains the dominant organising rule unless lawfully displaced in a permissible way.

Implications

1. If a terrace surface is fixed like part of the building, treat it as a legal question, not a social argument

In strata, emotions often attach to words like “mine” and “yours.” The law attaches to plans, boundaries, and fixtures. Before you spend money on lawyers, build your position from the strata plan, the installation method, and how the surface functions in the building system.

1. Expert evidence is not decoration; it is the engine of the outcome

If the dispute turns on building systems, drainage gradients, or installation design, invest early in credible experts who can explain cause, scope, and rectification in practical terms. A convincing expert pathway is often the shortest road to settlement.

1. A work order must be a project plan in legal clothing

Winning a declaration is not enough. In strata, the real victory is a remedy that can be executed: licensed trades, clear scope, compliance standards, access pathways, and accountability.

1. Do not assume that long-standing practice equals legal correctness

A scheme can operate on an assumption for years, especially where nobody tests it. That assumption can collapse the moment deterioration becomes serious or a motivated owner pushes the issue into a Tribunal.

1. Hold the line between fairness arguments and statutory duty

Fairness matters, but it must be channelled through lawful mechanisms. If a repair is truly common property, the duty exists. If the community wants a different outcome, it must pursue lawful by-law pathways and consents, not informal expectations.

Q&A Session

Q1: Why did the case turn so heavily on expert evidence instead of witness credibility?

Because the central disagreements were technical: what caused the deterioration, what repairs were necessary, and whether partial works would restore the decking to a proper state. In building-related strata disputes, credibility matters, but technical causation and rectification scope usually decide the remedy.

Q2: If many owners believed decks were their responsibility, does that protect the owners corporation from section 106 liability?

No belief-based practice is rarely sufficient to displace statutory duty if the property is legally common property. The correct question is what the property is as a matter of law, and what duty follows from that characterisation.

Q3: Does a by-law automatically shift maintenance responsibility for decking to lot owners?

Not automatically. A by-law can allocate responsibilities only within legal limits and may require specific mechanisms and, in some contexts, proper consents. If the subject matter is common property, shifting responsibility typically requires careful statutory compliance and lawful drafting.

Appendix: Reference for Comparable Case Judgments and Practical Guidelines

1. Practical Positioning of This Case

Case Subtype

Strata Scheme Property and Building Element Responsibility Dispute: Balcony and terrace timber decking characterisation and section 106 maintenance duty enforcement.

Judgment Nature Definition

Final Judgment with enforceable work orders and ancillary procedural directions.

2. Self-examination of Core Statutory Elements

Core Test Standards for Property, Construction and Planning Law

This section provides structured reference standards that tend to be applied in disputes of this kind. These are for reference only and must be applied to the specific evidence, plan documents, and statutory context of each case.

Step 1: Identify the Relevant Statutory Duty Framework

1. Determine whether the dispute is primarily:

• A statutory duty to maintain and repair common property dispute under section 106 of the Strata Schemes Management Act 2015 (NSW), or

• A by-law interpretation and validity dispute under the Strata Schemes Management Act 2015 (NSW), or

• A mixed dispute involving both.

1. Confirm the remedy pathway:

• Work orders and dispute settlement orders are typically sought under section 232.

• Damages for reasonably foreseeable loss caused by breach of section 106 may be sought under section 106(5), subject to proof requirements and any applicable limitations.

Step 2: Characterise the Physical Element

In disputes about balcony or terrace flooring systems, the practical test often turns on whether the element is part of the building’s structure or fabric, or a private, removable addition.

Key evaluation factors include:

1. Installation Timing

• Was the element installed during original construction before the scheme’s registration, suggesting it formed part of the building’s initial fabric?

• Or was it installed later by a lot owner as an improvement?

1. Degree of Affixation

• Is it fixed to the slab or structural supports in a manner consistent with permanence?

• Would removal require significant alteration to building components?

1. Functional Integration

• Does the element form part of the drainage system, waterproofing strategy, or slab gradient design?

• Does it interact with building compliance functions, such as preventing ponding and directing stormwater to outlets?

1. Plan and Boundary Alignment

• What do the strata plan boundaries indicate?

• Where the plan is ambiguous, does the physical reality of the installation help interpret the boundary in a legally coherent way?

Step 3: Assess Whether the Element is Common Property

If the element is properly characterised as common property, the owners corporation’s duty to maintain and repair is engaged.

Evidence inputs commonly required include:

• The registered strata plan and any notations relevant to balcony and terrace boundaries.

• Construction drawings, specifications, and manuals for proprietary systems, where available.

• Evidence of how the element is fixed to the building and how it functions.

• Historical records, including previous advice and earlier disputes, which can assist in understanding how the element was originally installed and treated.

Step 4: Prove Breach of the Maintenance Duty

A breach analysis typically requires:

1. Condition Proof

• Evidence that the element is not in a state of good and serviceable repair.

• Evidence of functional failure, such as ponding, decay, trip hazards, or inability to perform drainage functions.

1. Knowledge and Response Proof

• Evidence showing the owners corporation knew or ought reasonably to have known of the defect.

• Evidence of what steps were taken and whether they were reasonable and timely.

1. Scope Adequacy Proof

• Evidence showing whether proposed works would actually restore the element to proper condition, not merely cosmetically improve it.

Step 5: Remedy Calibration

Where breach is established, remedy selection tends to consider:

1. Compliance Sufficiency

• Does the proposed work restore the element to a good and serviceable state?

1. Proportionality

• If multiple compliance pathways exist, the Tribunal may prefer a pathway that achieves compliance without unnecessary escalation, provided it is technically sound.

1. Practical Enforceability

• A remedy should be specific enough to be carried out by licensed trades, inspected, and verified.

1. Regulatory Compliance

• Works must be performed with due care and skill and in accordance with applicable legislation, particularly where waterproofing, structural works, or regulated building work is involved.

3. Equitable Remedies and Alternative Claims

Even where statutory pathways dominate, Equity and common law doctrines can sometimes provide alternative or reinforcing strategies. These doctrines are not guaranteed outcomes; they tend to be applied cautiously and depend on evidence and fairness.

Promissory and Proprietary Estoppel

In strata contexts, estoppel arguments may arise if:

1. Clear Representation

• The owners corporation or strata committee made a clear and unequivocal representation, for example that the owners corporation would repair an element, or that an element was common property and would be maintained as such.

1. Reliance

• A lot owner relied on that representation to their detriment, such as refraining from arranging repairs, purchasing a lot on the assumption of common property maintenance, or investing in related works.

1. Detriment and Unconscionability

• It would be against good conscience for the owners corporation to resile from the representation after reliance caused detriment.

Potential Outcome Pathway:

• Equity may restrain the owners corporation from denying responsibility in circumstances where statutory ambiguity exists and reliance is strong, though the availability of such relief is fact-dependent and tends to be constrained by statutory frameworks.

Unjust Enrichment and Constructive Trust Concepts

These are less common in pure section 106 disputes, but may be raised where:

1. Benefit at Expense

• The owners corporation or other owners received a benefit from works paid by a lot owner to common property.

1. Lack of Justification

• The retention of that benefit without reimbursement may be unjust in the circumstances.

Potential Outcome Pathway:

• Restitutionary relief may be pursued, though success tends to depend on clear proof that the work was to common property and that reimbursement is justified.

Procedural Fairness and Governance Integrity

Where a dispute arises from decision-making processes, alternative pathways may include:

• Challenging the validity of resolutions or by-laws where procedural requirements were not met.

• Seeking orders correcting governance conduct where statutory processes were not complied with, subject to proof and Tribunal jurisdiction.

These avenues are not substitutes for proving common property status, but can be tactically important where governance decisions obstruct proper maintenance.

4. Access Thresholds and Exceptional Circumstances

Regular Thresholds

1. Threshold for Section 106 Enforcement

• If the subject element is common property, the duty to maintain and repair is engaged and the Tribunal can make work orders to enforce compliance.

1. Threshold for Damages under Section 106(5)

• The claimant must prove loss caused by the breach and that the loss was reasonably foreseeable. Damages claims tend to face higher evidentiary demands than work order claims.

1. Practical Threshold for Building Rectification

• Where rectification involves regulated building work, the work typically must be performed by appropriately licensed persons and in compliance with applicable building legislation and standards.

Exceptional Channels

1. Where the element’s character is ambiguous on the plan

• The Tribunal may be required to interpret plan boundaries and physical features, often relying on evidence of affixation and functional integration. Where ambiguity persists, expert and documentary evidence becomes especially influential.

1. Where owner conduct is alleged to have contributed

• Even if some owner conduct contributed to deterioration, the owners corporation’s duty may still be engaged if systemic defect is the primary cause. However, contributory factors may affect scope, damages, or remedy framing depending on the evidence.

1. Where a by-law is proposed to shift responsibility

• A by-law strategy may be legally risky if it attempts to avoid statutory duty without lawful mechanism or required consents. The better pathway tends to be precise drafting aligned with statutory powers, accompanied by transparent disclosure and proper approvals.

Suggestion:

Do not abandon a claim or defence simply because the scheme has historically operated on a belief about responsibility. Carefully test that belief against the strata plan, the physical reality of installation, and statutory duty pathways. In many disputes, the turning point is a single strong piece of technical or plan-based evidence.

5. Guidelines for Judicial and Legal Citation

Citation Angle

It is recommended to cite this case in legal submissions or debates involving:

• Characterisation of balcony and terrace decking systems as common property or lot property where affixation and functional integration are central.

• The scope and enforcement of the owners corporation’s section 106 duty, particularly where expert evidence diverges on whether full replacement or partial rectification satisfies compliance.

• Remedy framing in strata maintenance disputes, including enforceable work orders requiring licensed contractors and regulatory compliance.

Citation Method

As Positive Support:

• Where your matter involves a proprietary decking system installed during original construction and fixed to building components, this authority can strengthen the argument that characterisation and duty should be approached through installation reality and statutory sequencing.

As a Distinguishing Reference:

• If the opposing party cites this case, emphasise factual uniqueness such as a deck installed by a lot owner after registration, a clearly removable surface, or strong causal evidence of owner misuse. Distinguish on plan boundaries, affixation degree, and whether the element is functionally part of drainage or waterproofing systems.

Anonymisation Rule

Do not use the real names of the parties; strictly use professional procedural titles such as Applicant and Respondent.

Conclusion

A strata scheme is not governed by assumptions, but by plans, property characterisation, and statutory duty. When a terrace timber decking system behaves like part of the building, the law tends to treat it like part of the building. Everyone needs to understand the law and see the world through the lens of law. The in-depth analysis of this authentic judgment is intended to help everyone gradually establish a new legal mindset: True self-protection stems from the early understanding and mastery of legal rules.

Disclaimer

This article is based on the study and analysis of the public judgment of the New South Wales Civil and Administrative Tribunal, Consumer and Commercial Division (Applicant v Respondent [2025] NSWCATCD 67), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.

The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.

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