Round two: the Court of Appeal The Body Corporate appealed to the Court of Appeal. The Court of Appeal rejected the Body Corporate’s argument and upheld the High Court’s decision, finding the repairs to the decks related to an “interlinked and indivisible” weathertightness issue.1 This meant that the repair costs should be borne by all apartment owners. It is clear the Court of Appeal was seeking a fair result consistent with classic “leaky building” cases concerning systemic issues in 1990’s-constructed, plaster-clad buildings. In those cases, the Courts have traditionally shifted responsibility for repair costs from individual apartment owners to territorial authorities and parties involved in construction if there is evidence of any negligence. However, the Oceanside Apartment Complex was not a conventional “leaky building”; rather it is a building that needed maintenance and repair to some common property, and some individual property. In our view, the purpose of the Act is to distinguish between the two, and allow for some costs to be borne by apartment owners individually, and some costs to be shared amongst all apartment owners. Partner Stephen Price, who acted for the Body Corporate, comments: “The Otway decision creates real uncertainty around who pays for repair costs perceived to be a weathertightness issue. An upshot of this decision is that costs of repairing the defect may be shared by all apartment owners – which might be good news if you own an apartment with defects seen to be a systemic weathertightness issue. On the flip side, if you own an apartment in a complex where another apartment has a “weathertightness issue”, you may have to pay for something you never get to enjoy – like a deck attached to a unit you don’t own.” What does this mean for apartment owners? With the increasing popularity of apartments (and the Government’s policy to encourage medium to high density housing), the impact of Otway is of particular importance.