The Owners – Strata Plan No 7114 v Northern Beaches Council [2025] NSWCA 197
The New South Wales Court of Appeal dismissed an owners corporation's appeal, holding that it owed licence fees for car spaces for as long as its 1999 deed with a council that owned them remained in operation, that a roller door it kept on common property after the licence ended was a nuisance, given the council's right of reasonable access to those spaces, and that its electricity cross-claim was out of time under the Limitation Act 1969 (NSW).
What the court decided
The appellant was the owners corporation for Strata Plan No 7114, covering a mixed use building in Manly, called here the owners corporation [3]. The respondent, Northern Beaches Council, the council in this note, owned Lots 185 to 430, each a car parking space on levels 2 to 8 [3].
Free JA gave the reasons; Ward P and Stern JA agreed [1]–[3].
By-Law 17 allowed the council to run a public carpark in its lots [9]. It did so on every level from 2 to 7 [4]. Since at least 1996 it had licensed its 19 spaces on level 8 to the owners corporation for residents and others it authorised [4]. A roller door on the ramp between levels 7 and 8, opened by fob keys the owners corporation issued, regulated access to level 8 [4], [29].
Under a 1999 deed, which this note calls the deed, the owners corporation paid an annual fee for those spaces and the council paid a smaller one for rights over common property [16], [18], [26]. The initial term ran to 30 June 2009 [22]. The parties kept acting as if the deed governed them [27]–[28]. From about June 2016 each stopped paying the other [28]. A notice from the owners corporation ended the deed on 8 January 2024 [23].
Clauses 2.4 and 2.5 allowed all the parties' rights and obligations to be held over, so payment "during the term" under clause 21.5 meant for as long as the deed operated [56]. The owners corporation argued that its duty to pay ended on 30 June 2009 although its licence continued, and sought restitution of fees paid from then to June 2016 as paid by mistake [31]–[32]. Free JA called that construction surprising and commercially improbable, with no textual or contextual support [49]. The owners corporation was bound to pay the fee until 8 January 2024 and made no mistake of law in paying it before June 2016 [58]. The council accepted that it owed its own fee for June 2016 to January 2024, which may be set off against its judgment [35]. As counsel for the owners corporation conceded, grounds 2 (course of dealing) and 3 (mistake of law) fell away with ground 1 [45].
After the deed ended, the owners corporation kept effective control of the level 8 spaces through the roller door [25]. Free JA held there was a proper basis for the finding that the owners corporation trespassed by enabling residents to keep parking, but treated the door as the more significant matter [61], [63]–[64]. The door stood on common property, which the council as a lot owner had a right to cross for reasonable access to its lots [64].
His Honour referred to the discussion in EB 9 and 10 Pty Ltd (2018) 97 NSWLR 227; [2018] NSWSC 464 at [33]–[34] for that right [64]. He described that decision as limiting an owners corporation's management of common property where it would derogate from a lot owner's right to use that property for reasonable access to the lot [68]–[69].
An offer of fob keys did not answer the claim, because the spaces could be used as part of a public carpark [74]–[75]. Free JA accepted that, in the easement cases, a locked gate may leave reasonable access where the means of opening it is offered [73]. Given By-Law 17, access that is reasonable for a resident may not be reasonable for members of the public coming and going [75]. The security justification had resonance while the licence ran but disappeared after 8 January 2024; a continuing security interest did not justify the door [76]. Keeping the door was a real, substantial and unreasonable interference with the council's enjoyment of its lots, so nuisance was made out [61], [77]. Free JA doubted, without deciding, that the door, which was not on the council's land, was also a trespass [61].
The court upheld damages measured by the monthly fee the council could have charged the public, less 20% for commercial vicissitudes [41], [79].
The owners corporation also cross-claimed for electricity the council used before 21 March 2013 [36]. As the owners corporation accepted, the limitation period for a contractual claim of this kind was six years under section 14(1) of the Limitation Act 1969 (NSW) [81]. The primary judge was right to hold the claim statute barred [92]. Free JA left open whether a payment on a running account resets the limitation period, because no running account was shown [82], [89]–[91]. Nor did his Honour decide whether By-Law 17 obliged the council to pay for that electricity [92].
The appeal was dismissed with costs [1], [93].
Why it matters
In my view, the licence fee ruling is a caution against reading a payment term as ending with an initial term while the right paid for is held over.
The door ruling shows that an owners corporation keeping a barrier on common property can be liable in nuisance to a lot owner whose reasonable access it unreasonably obstructs [61], [64], [77]. What counts as reasonable access was assessed against the use the by-laws permitted for the lots, here a public carpark [74]–[75]. A security rationale for a barrier during a licence may not survive the licence's end [76].
The by-law, the limitation provision and the strata legislation considered in the decision relied on for the right of access were New South Wales ones [9], [67], [70], [81]. Readers must check the Victorian position, including under the Owners Corporations Act 2006 (Vic), which this decision does not address.
Numbers in square brackets are paragraph numbers of the judgment. This note summarises a decided case for education and is not legal advice. See how the notes are written.