Civil and Administrative Tribunal

New South Wales

Case Title: Medium Neutral Citation: (earin) &ate*s+: &ecision &ate: -urisdiction: /e0ore: &ecision: 1 Pursuant to section 6! o0 the %ct2 the Owners Corporation shall2 on or ,e0ore '1 March !"1#2 en)a)e an e4pert licensed ,uilder to inspect and report on the e4ternal court.ard walls ,etween lot 15 and lot 16 to determine whether the walls are compliant with the /uildin) Code o0 %ustralia6 ! The Owners Corporation shall2 on or ,e0ore '" -une !"1#2 implement the recommendations o0 the e4pert en)a)ed pursuant to order 1 ,. causin) the 7uali0ied tradesmen to underta8e2 in a proper and wor8manli8e manner2 the wor8 recommended ,. the ,uildin) e4pert6 ' The order o0 the %d9udicator made on : %u)ust !"1' in application SCS1';!!#!: is a00irmed6 Michael Kerr v Owners Corporation SP 17161 !"1#$ NSWC%TC& ' 16 &ecem,er !"1' "7 -anuar. !"1# Consumer and Commerical &ivision M 10timou2 3eneral Mem,er

Catchwords: =e)islation Cited: Cate)or.:

0ailure to maintain and repair common propert. < section 6! o0 the %ct Strata Schemes Mana)ement %ct 1>>6 Principal 9ud)ment <1<

Parties:

Michael Kerr *%pplicant+ Owners Corporation SP 17161 *?espondent+ SCS 1';#6#>#

@ile Num,er*s+:

REASONS FOR DECISION

1 This is an appeal a)ainst %d9udicatorAs order made on : %u)ust !"1' in SCS 1';!!#!:6 Bn that matter2 the appellant had sou)ht an order under sections 6! and 65% o0 the %ct that the ,ric8 wall ,etween villa 152 villa 16 and the common propert. drivewa.;par8in) area is to ,e repaired to compl. with the /uildin) Code o0 %ustralia2 and a second order that the wooden 0ence 0or the ,in area is to remain6 ! The %d9udicator considered that an. orders under sections 6! and 65 were CinappropriateC and she determined to deal with the application under section 15'*1+ o0 the %ct ' The %d9udicator made the 0ollowin) order:
C1 Pursuant to section 15'*1+ o0 the Strata Titles sic$ Mana)ement %ct 1>>6 ?esolution ! /oundar. @encin) < =ots 15 and 16 recorded on the Minutes o0 the 14traordinar. 3eneral Meetin) o0 the Owners Corporation SP 17161 on !# %pril !"1' is invalid6C

The appellant see8s an order that the Tri,unal a00irm2 the order made ,. the %d9udicator on : %u)ust !"1'2 ,ut that the decision to invalidate the minutes o0 the 13M held on !# %pril !"1' also include the replacement o0 the tim,er 0ence surroundin) the )ar,a)e area6 Bn addition the appellant see8s an order under section 6! o0 the %ct that the Owners Corporation maintain and repair the common propert.6

The %d9udicator had ,e0ore her evidence that the Owners Corporation was made aware o0 de0ects in the ,ric8 wall in 7uestion as lon) a)o as !""76 %n en)ineerin) report ,. Clar8 1n)ineerin) Consultants2 dated 7 Septem,er !""72 declared that the court.ard wall to villa 15 did not meet <!<

the re7uirements o0 the /uildin) Code o0 %ustralia6 The appellant su,mitted in the ad9udication re7uest that despite repeated re7uest to the strata mana)er to have the wall repaired2 the wall remains dama)ed and unsta,le6 1vidence was )iven o0 vehicle dama)e to the wall o0 villa 16 in &ecem,er !"1! and that the emer)enc. repairs underta8en ,. the Owners Corporation on the wall are de0ective and were not done in a proper and wor8manli8e manner6 6 The %d9udicator stated that the Owners Corporation accept that wor8 is re7uired on the ,ric8 surrounds 0or lots 15 and 16 within the strata scheme6 7 The Tri,unal 0inds that the %d9udicator 0ailed to ade7uatel. address the orders sou)ht ,. the appellant6 Consideration was )iven ,. the %d9udicator to the application made under section 65% o0 the %ct and this was dealt with ,. the ma8in) o0 an order under section 15! o0 the %ct6 The %d9udicator 0ound that she was not satis0ied that the real dispute ,etween the parties was due to the 0ailure o0 the owners corporation to compl. with its dut. under section 6! o0 the %ct to properl. maintain and 8eep the wall in a state o0 )ood and servicea,le repair6 The %d9udicator 0ound that the owners corporation had not re0used to compl. with their o,li)ations under section 6! o0 the %ct6 No reasons were provided as to how this 0indin) was reached on the written evidence presented6 The %d9udicator went on to consider the application under section 65% and 0ailed to ma8e orders or dismiss the application that was made under section 6! o0 the %ct6 : The appellant has su,mitted an opinion that the walls o0 the court.ard ,etween lots 15 and 16 do not meet the /C% and he see8s to rel. on the report o0 Clar8 1n)ineerin)2 a num,er o0 photo)raphs2 and an e4tract 0rom the %ustralian /uildin) Codes /oard *!""7+6 The appellant has stated that some emer)enc. repair wor8 has ,een done ,ut that the wor8 is de0ective and has not ,een done in a proper and wor8manli8e manner6

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The respondent did not attend the hearin)6 The respondent sent a letter to the Tri,unal2 dated !5 Novem,er !"1'2 advisin) that it will not ,e attendin)6 The letter indicated that the Owners Corporation has made ever. e00ort to ensure all matters re7uirin) repair and or replacement have ,een carried out as promptl. as possi,le ,. a competent licensed tradesperson6 The Owners Corporation declared that2 un0ortunatel.2 it is not alwa.s possi,le to have wor8 done as soon as all would li8e it to ,e achieved6

1"

Su,mission was also received 0rom another interested person6 Mrs Nelson states in her su,mission that the e4ecutive committee and the strata mana)er have proceeded to o,tain assessments and 7uotes to repair;replace e4istin) structures to ,rin) all within current /uildin) Code Standards6 Mrs Nelson complains a,out the appellantAs unreasona,le and o,9ectiona,le ,ehaviour in relation to this dispute6

11

This is an appeal under section 177 o0 the %ct6 Section 1:1 o0 the %ct provides that in the determination o0 appeal 0rom an order o0 an %d9udicator2 the Tri,unal ma. admit new evidence2 ma. determine an appeal ,. a00irmin)2 amendin) or revo8in) the order appealed a)ainst2 or su,stitutin) its own order 0or the one appealed 0rom6

1!

The )rounds o0 appeal su,mitted ,. the appellant are that the %d9udicator has 0ailed to consider the application on the )rounds on which it was 0iled6

1'

The condition o0 the ,ric8 0ence appears to ,e an issue that has concerned the Owners Corporation 0or some time and has concerned the appellant since a vehicle reversed into the wall late in !"1!6

1#

There is some evidentiar. material ,e0ore the Tri,unal2 includin) photo)raphs and a !""7 ,uildin) report6 (owever2 there is insu00icient evidence to determine what the re7uired repair mi)ht ,e6 The !""7 ,uildin) report states that the wall does not meet the /uildin) Code o0 <#<

%ustralia6 The appellant ar)ues that it is evident 0rom the photos that there are insu00icient supports and inade7uate masonr.6 This evidence does not allow the Tri,unal to ,e satis0ied as to the totalit. o0 the repairs which are needed to ensure that the walls meet the /C% standards or that the emer)enc. repairs have ,een done in a proper and wor8manli8e manner6 15 The Owners Corporation has clearl. considered the need to maintain and repair the 0ences2 as it was resolved at the %3M in !"1' to replace the 0ence with a Color,ond ? 0ence6 This was the motion determined to ,e invalid ,. the %d9udicator in SCS 1';!!#!::6 16 Bn summar.2 the evidence ,e0ore the Tri,unal does not assist to determine e4actl. what maintenance wor8 is re7uired to ,e done2 nor how soon6 17 The respondent has su,mitted that ever. e00ort has ,een made to ensure all matters re7uirin) repair and or replacement have ,een carried out as promptl. as possi,le6 The Owners Corporation conceded that no consideration was )iven to the !""7 ,uildin) report o0 Mr Clar8e until !"1!6 No evidence has ,een provided a,out the steps the Owners Corporation is currentl. ta8in) to ensure compliance with the o,li)ations o0 section 6! o0 the %ct6 No evidence has ,een provided a,out an. action ta8en ,. the Owners Corporation since the %d9udicatorAs decision made on : %u)ust !"1' to address this issue6 1: The Tri,unal is not a,le to conclude on the evidence ,e0ore it that the owners Corporation is proposin) to o,tain a ,uildin) report and to consider it at the ne4t %3M or whether it is intended to rel. on the !""7 report o0 Mr Clar8e6 1> Bn the practical wor8in)s o0 a strata scheme there are alwa.s constraints and priorities in dischar)in) duties under section 6!6 The dut. to maintain which was considered ,. the New South Wales Supreme Court in Seiwa Pty Ltd v The Owners of Strata Plan 35042 !""6$ NSWSC 1157 ma8es <5<

clear that the dut. to 8eep common propert. in )ood condition and repair ,e attended to ,e0ore these assets 0ail to serve their purpose6 !" The onl. e4pert evidence ,e0ore the Tri,unal is the !""7 report o0 Mr Clar86 Mr Clar8 stated that the wall to the court.ard o0 unit 15 has ,een ,uilt to a standard which is not accepta,le to the /C%6 The e4istin) wall is not capa,le o0 withstandin) the speci0ied horiDontal load6 The noncompliance o0 the wall with /C% re7uirements can ,e dealt with ,. ma8in) suita,le modi0ications to the 0ootin)s and addin) en)a)ed piers at suita,le intervals as re7uired ,. %S '7""6 !1 The Tri,unal concludes that the Owners Corporation has 0ailed to compl. with section 6! o0 the %ct6 !! The Tri,unal orders that2 in accordance with its o,li)ations under section 6! o0 the %ct2 the Owners Corporation shall en)a)e an e4pert ,uilder to report on the court.ard walls6 The Tri,unal 0inds that a new report should ,e o,tained2 as the report 0rom Mr Clar8 is now more than si4 .ears old6 The condition o0 the walls has chan)ed since that time2 in particular since one o0 the walls was hit ,. a vehicle2 and also ,ecause the /uildin) Code o0 %ustralia has ,een amended since !""76 The report should also consider whether the emer)enc. repair wor8 to the wall has ,een done in a proper and wor8manli8e manner and is not de0ective6 !' The Tri,unal has also considered the orders made ,. the %d9udicator and accepts the su,missions made ,. the appellant that the resolution adopted at the 13M held on !# %pril !"1' included the replacement o0 the )ar,a)e area surrounds 0rom tim,er to Color,ondE6 @or clarit. the Tri,unal notes that the motion that was passed at the 13M held on !# %pril !"1' included ,oth the replacement o0 the 0ence and the )ar,a)e area surround 0rom tim,er to Color,ond6 The %d9udicator in the decision made on : %u)ust !"1' 0ound that this motion is invalid6 This decision has not ,een challen)ed ,. the Owners Corporation6 <6<

ORDERS
!# Pursuant to section 6! o0 the %ct2 the Owners Corporation shall2 on or ,e0ore '1 March !"1#2 en)a)e an e4pert licensed ,uilder to inspect and report on the e4ternal court.ard walls ,etween lot 15 and lot 16 to determine whether the walls are compliant with the /uildin) Code o0 %ustralia6 !5 The Owners Corporation shall2 on or ,e0ore '" -une !"1#2 implement the recommendations o0 the e4pert en)a)ed pursuant to order 1 ,. causin) the 7uali0ied tradesmen to underta8e2 in a proper and wor8manli8e manner2 the wor8 recommended ,. the ,uildin) e4pert6 !6 The order o0 the %d9udicator made on : %u)ust !"1' in application SCS1';!!#!: is a00irmed6

B here,. certi0. that this is a true and accurate record o0 the reasons 0or decision o0 the New South Wales Civil and %dministrative Tri,unal6

?e)istrar

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