@ccbaxter said:
.. it’s time for the bush lawyering to stop and the real lawyers who issued the PR releases to weigh in please.
Weigh in on what, exactly? The facts have been spelled out several times. If you want a hypothetical situation addressed, why don’t you present one instead of making negative comments?
Saying it’s “settled law” as JimmyT puts it (whatever that means) and in quotes means Sweet Fanny Adams a ‘lawyer’ mate told me this afternoon.
“Settled law’ was a term used by Beverley Hoskinson-Green in her first release on this. It’s a commonly accepted principle which refers to an interpretation of law, usually by a superior court, creating a precedent, usually one that remains unchallenged. Since the Appeals Court is the highest in NSW, this ruling unlikely to be overturned.
The term creates a distinction between legal principles that have been tested and established by rulings in court (usually at a high level) and those that are simply on the statute book.
For instance, strata lawyers often refer to the Seiwa case in which the Appeals Court established two principles that are used on a daily basis in strata management.
One was that the membrane between the balcony slab and its tiles was common property and the other was that Section 62 of the Act imposes on an owners corporation a strict duty to maintain and repair common property.
“Strict duty” means it’s not enough to use “best efforts” or “reasonable steps”; it’s a duty to keep common property in good repair, regardless, for instance, of whether or not the owners corp has the funds on hand to do so.
Neither of these principles is spelled out in the strata Act but they are both now accepted as established precedents and are therefor ‘settled law’.