Maston v The Owners — Strata Plan No. 11784 [2020] NSWCATCD 18

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Maston v The Owners — Strata Plan No. 11784 [2020] NSWCATCD 18 Hearing dates: 01 August 2019 Date of orders: 28 January 2020 Decision date: 28 January 2020 Jurisdiction: Consumer and Commercial Division Before: Geoffrey Meadows, Senior Member Decision: The application is dismissed. Catchwords: STRATA AND COMMUNITY SCHEMES — Repair of common property Legislation Cited: Strata Schemes Management Act 2015 (NSW) Cases Cited: The Owners — Strata Plan No. 74835 v Pullicin; The Owners — Strata Plan No. 80412 v Vickery [2020] NSWCATAP 5 Pullicin v The Owners — Strata Plan No. 74835 [2019] NSWCATCD 17 July 2019 Shih & Oars v The Owners — Strata Plan No. 87879 [2018] NSWCATCD 74 The Owners — Strata Plan No. 30621 v Shum [2018] NSWCATAP 15 Shih v The Owners — Strata Plan No. 87879 [2019] NSWCATAP 263 Davenport v The Owners – Strata Plan 536; The Owners – Strata Plan 536 v Davenport [2018] NSWCATAP 301 Texts Cited: Nil Category: Principal judgment Parties: James Maston (First Applicant) Lunar Maston (Second Applicant) The Owners—Strata Plan No. 11784 (Respondent) Representation: Solicitors: Le Page Lawyers (Applicant) Chambers Russell Lawyers (Respondent) File Number(s): SC 19/16129 Publication restriction: Nil

REASONS FOR DECISION

Background 1. This application was lodged on 03 April 2019 by James and Lunar Maston as the owners of Lot 4 in Strata Plan No. 11784 seeking the following orders under s. 232 of the Strata Schemes Management Act 2015 (SSM Act): "1. That the Owners Corporation repair in a proper and skilful manner the following defects in the common property and their respective causes: 1.1 Water ponding on the concrete path adjacent to the external southern wall of the Applicants' lot by implementation of the recommendations in the report of RHM Consultants Pty Ltd ("RHM report") dated 2 August the 2018; 1.2 Removal of the spitter trains on the northern and southern masonry walls on the stairwell adjacent to the Applicants' lot and application of grout to the voids in that area, as recommenced [sic] in the RHM report; and; 1.3 Repair the cavity flashing on the external wall of the Applicant's lot. 2. That the Owners Corporation reinstate and/or replace the gate and adjoining fences at the entrance to the Applicants' lot, by consultation and agreement with the Applicant's with the design to be in keeping with the external appearance of the strata scheme. 3. For the purposes of the proper completion and certification of the repairs, that the Owners Corporation retain a properly qualified and experienced consultant to specify, to supervise and to certify the satisfactory completion of the repairs in favour of the Owners Corporation. 4. That the repair on each of the defects be commenced within four weeks of the making of these orders (if they are not previously commenced) and be completed and certified within four weeks of commencement or such other period as the Tribunal may order." 1. By letter dated 07 May 2019, the respondent owners corporation's solicitors wrote to the registrar seeking leave to represent the respondent. In support of that application, Messrs Chambers Russell submitted that the proceedings give rise to questions of law and the interpretation of legislation. In expanding on that submission, Chambers Russell essentially provided a defence to the claim as follows: "2.2 Although prima facie the proceedings appeared to be a straightforward application for the owners corporation to repair and maintain the common property pursuant to its obligations under section 106 of the SSMA, the owners corporation will say in its evidence and submissions that: 1. the owners corporation entered into a contract with Qube Services Pty Ltd ("Qube") dated 15 September 2016 for remedial building works; 2. certain work under the contract (including variations) is incomplete or defective and has yet to be rectified; 3. the owners corporation obtained a preliminary building defects report from Remedial Building Solutions dated 22 October 2018 outlining defects caused by Qube under the contract ("RBS Report"); 4. the owners corporation obtained a litigation compliant report from Building and Waterproofing Reports Australia dated 23 April 2019 ("BWRA Report"), which includes the scope of works to rectify the defects identified in the RBS Report; 5. the RBS Report and the BWRA Report identifies the same defects outlined at section 4A of the application, save for the alleged removal of a gate and adjoining fences during the performance of the works; 6. the owners corporation has obtained legal advice regarding its rights to commence proceedings for breaches of statutory warranties under the Home Building Act 1989; and 7. the owners corporation has lodged a Home Building Complaint with the New South Wales Fair Trading ("Home Building Complaint") in relation to the defects outlined in the RBS Report and BWRA Report. 2.3 We note that section 106(4) of the SSMA states that: (4) If an owners corporation has taken action against an owner or other person in respect of damage to the common property, it may defer compliance with subsection (1) or (2) in relation to the damage to the property until the completion of the action if the failure to comply will not affect the safety of any building, structure or common property in the strata scheme. 2.4 The owners corporation says that the Home Building Complaint, which includes the defects outlined in the application, constitutes an "action" of the purpose of section 106(4) of the SSMA and therefore allows it to defer compliance with sections 106(1) and 106(2) of the SSMA in relation to the orders sought in the present proceedings. … 1. On 08 May 2019, Senior Member Thode granted leave to both parties to be legally represented.