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<

ric8 wall in 7uestion as lon) a)o as !""76 %n en)ineerin) report .er !""72 declared that the court.#6#># @ile Num..in area is to remain6 ! The %d9udicator considered that an. Clar8 1n)ineerin) Consultants2 dated 7 Septem.etween villa 152 villa 16 and the common propert. 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..Parties: Michael Kerr *%pplicant+ Owners Corporation SP 17161 *?espondent+ SCS 1'. with the /uildin) Code o0 %ustralia2 and a second order that the wooden 0ence 0or the .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. 3eneral Meetin) o0 the Owners Corporation SP 17161 on !# %pril !"1' is invalid6C # The appellant see8s an order that the Tri.e repaired to compl..unal a00irm2 the order made .ard wall to villa 15 did not meet <!< .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.par8in) area is to .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 .6 5 The %d9udicator had . @encin) < =ots 15 and 16 recorded on the Minutes o0 the 14traordinar. drivewa. the %d9udicator on : %u)ust !"1'2 .e0ore her evidence that the Owners Corporation was made aware o0 de0ects in the .

repair wor8 has . with its dut..een done in a proper and wor8manli8e manner6 <'< .er !"1! and that the emer)enc.er o0 photo)raphs2 and an e4tract 0rom the %ustralian /uildin) Codes /oard *!""7+6 The appellant has stated that some emer)enc.ric8 surrounds 0or lots 15 and 16 within the strata scheme6 7 The Tri. 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 . repairs underta8en . the ma8in) o0 an order under section 15! o0 the %ct6 The %d9udicator 0ound that she was not satis0ied that the real dispute ..the re7uirements o0 the /uildin) Code o0 %ustralia6 The appellant su.een done . under section 6! o0 the %ct to properl.ard ..le repair6 The %d9udicator 0ound that the owners corporation had not re0used to compl..mitted an opinion that the walls o0 the court.unal 0inds that the %d9udicator 0ailed to ade7uatel.ut that the wor8 is de0ective and has not . on the report o0 Clar8 1n)ineerin)2 a num. maintain and 8eep the wall in a state o0 )ood and servicea. address the orders sou)ht .etween lots 15 and 16 do not meet the /C% and he see8s to rel. the %d9udicator to the application made under section 65% o0 the %ct and this was dealt with .le6 1vidence was )iven o0 vehicle dama)e to the wall o0 villa 16 in &ecem.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.etween the parties was due to the 0ailure o0 the owners corporation to compl. with their o. the appellant6 Consideration was )iven .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.

e achieved6 1" Su. admit new evidence2 ma.ric8 0ence appears to .s possi.9ectiona.mission was also received 0rom another interested person6 Mrs Nelson states in her su. material ..e6 The !""7 .le to have wor8 done as soon as all would li8e it to .le .er !"1'2 advisin) that it will not . a competent licensed tradesperson6 The Owners Corporation declared that2 un0ortunatel.e attendin)6 The letter indicated that the Owners Corporation has made ever.e0ore the Tri.replace e4istin) structures to .een carried out as promptl.le and o.stitutin) its own order 0or the one appealed 0rom6 1! The )rounds o0 appeal su.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.mission that the e4ecutive committee and the strata mana)er have proceeded to o..unal ma. 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 . e00ort to ensure all matters re7uirin) repair and or replacement have .out the appellantAs unreasona.mitted . as possi.unal2 dated !5 Novem. determine an appeal .tain assessments and 7uotes to repair.uildin) report states that the wall does not meet the /uildin) Code o0 <#< .unal2 includin) photo)raphs and a !""7 .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.2 it is not alwa. a00irmin)2 amendin) or revo8in) the order appealed a)ainst2 or su.uildin) report6 (owever2 there is insu00icient evidence to determine what the re7uired repair mi)ht .rin) all within current /uildin) Code Standards6 Mrs Nelson complains a.> The respondent did not attend the hearin)6 The respondent sent a letter to the Tri.

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

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

uildin) e4pert6 !6 The order o0 the %d9udicator made on : %u)ust !"1' in application SCS1'.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 ..!!#!: is a00irmed6 B here. that this is a true and accurate record o0 the reasons 0or decision o0 the New South Wales Civil and %dministrative Tri..e0ore '" -une !"1#2 implement the recommendations o0 the e4pert en)a)ed pursuant to order 1 . certi0. the .unal6 ?e)istrar FFFFFFFFFF <7< .uilder to inspect and report on the e4ternal court..ard walls .e0ore '1 March !"1#2 en)a)e an e4pert licensed . causin) the 7uali0ied tradesmen to underta8e2 in a proper and wor8manli8e manner2 the wor8 recommended .ORDERS !# Pursuant to section 6! o0 the %ct2 the Owners Corporation shall2 on or .