Case update – Diaspora Holding Pty Limited & Anor v The Owners Strata Plan No. 68608 [2024] NSWDC 46

Case update – Diaspora Holding Pty Limited & Anor v The Owners Strata Plan No. 68608 [2024] NSWDC 46

Case update – Diaspora Holding Pty Limited & Anor v The Owners Strata Plan No. 68608 [2024] NSWDC 46 – tort of unlawful interference with trade – decision date 1 March 2024. This case note was written by Damian Quinn, Senior Associate in our Sydney office.

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The plaintiff in Diaspora owned lot 16, a storage lot, in a commercial strata scheme at York Street, Sydney. Lot 16 had attached to it the rights to exclusively use two car parking spaces in the basement of the building.  An entity associated with the plaintiff operated a car parking business utilising the parking spaces.  The defendant owners corporation took steps to prevent the ongoing operation of the car parking business which it considered to be unlawful, including by way of cutting off the electricity to Lot 16.  Diaspora brought an action in the District Court based on the tort of unlawful interference with trade, and nuisance (in respect of the cutting off of the electricity supply).

Weber DCJ canvassed the authorities relating to the tort of unlawful interference with trade and whether such a tort exists in Australia.  Weber DCJ rejected the plaintiff’s submissions that the existence of the tort had been established and held it was a matter for the High Court to consider, stating “in my view it is inappropriate for me to express an opinion as to the existence of the tort of unlawful interference with trade as I am urged to do by the plaintiffs.  In my opinion, the possible existence of the tort is a matter for the High Court”.

Weber DCJ dismissed the plaintiff’s claims despite this finding, because he found that the operation of the car parking business was unlawful because it was prohibited by the development approval applying to the land and, on that basis, the plaintiff had not suffered any loss.

Weber DCJ also dismissed the plaintiff/s claim for nuisance.  Applying the test in Robson v Leischke [2008] 72 NSWLR 98, Weber DCJ held that the cutting off of electricity to Lot 16 was neither substantial nor unreasonable because it did not substantially interfere with the lawful use of lot 16 as a storage facility (as it did not affect the provision of house and basic house utilities to the lot).  The evidence was that unauthorised modifications were made to the supply of electricity to Lot 16 which created health and safety concerns associated with the electricity supply to lot 16 and the building generally. The owners corporation relied on its positive duty pursuant to section 106 of the Strata Schemes Management Act to keep and maintain the common property, of which the electrical supply infrastructure formed part (with health and safety concerns for the entire building being relevant to the steps it took for the owners corporation’s discharge of its duties pursuant to section 106).