Wells v The Owners - Strata Plan No 12159 [2022] NSWCATCD 151

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Wells v The Owners - Strata Plan No 12159 [2022] NSWCATCD 151 Hearing dates: 14 June 2022 Date of orders: 15 August 2022 Decision date: 15 August 2022 Jurisdiction: Consumer and Commercial Division Before: G Sarginson, Senior Member Decision: (1) By ten (10) weeks from the date of this decision, The Owners - Strata Plan No 12159 is to cause the performance of the works set out in the scope of works contained in the quotation of Northern Beaches Drainage Pty Ltd dated 19 August 2021. (2) The work in order 1 is to be performed by suitably licenced and insured tradespersons exercising due care and skill. (3) The applicant is to provide reasonable access to his Lot to the extent necessary for order 1 to be complied with. Catchwords: LAND LAW---Strata title---Common property---Duty to repair---Breach of duty---Scope of works to repair Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Strata Schemes Management Act 2015 (NSW) Cases Cited: The Owners - Strata Plan No 33368 v Gittins [2022] NSWCATAP 130 Category: Principal judgment Parties: Gordon Wells (Applicant) The Owners - Strata Plan No 12159 (Respondent) Representation: Applicant (self-represented)

C Greenough, Chairperson strata committee (Respondent) File Number(s): SC 22/18157 Publication restriction: Nil

REASONS FOR DECISION 1. The proceedings involve a longstanding dispute between the applicant (the owner of Lot 14) and the respondent (the owners corporation) regarding allegedly inadequate drainage and waterproofing causing water ingress to an underground basement garage. 2. The hearing occurred on 14 June 2022. The applicant appeared in person with a "friend" Ms George (Ms George did not seek to represent the applicant; and he presented his own evidence and arguments to the Tribunal). Ms Greenough, Chairperson of the strata committee, represented the respondent. Ms Greenough appeared by video-link. 3. Neither party sought an adjournment of the hearing. No expert witnesses were required for cross examination. Oral evidence and submissions were given by the applicant and Ms Greenough. 4. As noted in procedural directions on 17 May 2022, the only order sought by the applicant in the proceedings was an order for repairs on the basis that the respondent was non-compliant with its duty to keep and maintain common property in a state of good and serviceable repair under s 106 (1) of the Strata Schemes Management Act 2015 (NSW) ('the SSM Act'). 5. The walls of the underground garage; and landscaped areas proximate to the garage (involving lawns, shrubs, gardens and paths) are common property. The relevant internal area of the underground garage pertaining to Lot 14 is Lot property; although the garage contains parking spaces for other Lot owners (which are part of their Lot property) and visitors parking (which is common property). 6. The applicant purchased his Lot in about 1982 and resides in the strata building. The strata building was constructed in about 1977. 7. According to the applicant, for many years the respondent has failed to perform repairs to inadequate drainage and waterproofing of the wall of the underground garage. The applicant asserts there have been a number of "flooding" incidents dating back to 2006. 8. The applicant has made many complaints to the owners corporation seeking repairs be performed over a long period of time. Some members of the strata committee and Lot owners assert the applicant has consistently acted in an aggressive and belligerent manner towards them. The applicant denies this and asserts that the owners corporation is avoiding compliance with its duty under s 106 of the SSM Act. 9. At the hearing, it was clear there is significant discord. The Tribunal took all measures available to it to direct that parties stay focussed on the just, quick and cheap resolution of the real issues in the dispute under s 36 (1) and (3) of the Civil and Administrative Tribunal Act 2013 (NSW) ('the NCAT Act'). 10. In late 2018 the applicant sent to the owners corporation two quotes for repairs to the rear wall of the underground garage. One was from Coope Build Pty Ltd dated 18 October 2018. The second was from AWS Service dated 19 November 2018. 11. In 2019 the applicant commenced proceedings in NCAT seeking repairs to the garage wall (Matter SC 19/44953). The owners corporation was legally represented in those proceedings. The applicant was also legally represented. 12. On 9 January 2020, the applicant obtained a report from Mr Ian Walters of Parallel Lines Design & Construction Pty Ltd. 13. The report of Mr Walters states he was engaged to provide a report in respect of "water penetration through the rear wall of your (sic) garage." Mr Walters attended the property for an inspection on 8 January 2020. His report states: 1. The common basement carpark wall adjacent to the garage of Lot 14 showed extensive efflorescence. There was also erosion of the brickwork; and spalling of the brickwork to the lower level of the wall. 2. The rear wall of the garage showed natural ground water ingress entering the wall through the slip joints between the top of the brickwork and the bottom of the concrete slab. 3. Two "very poor attempts" had been made to apply membrane coating to the inside surface of the common wall. 4. Inadequate drainage of the garden lawn on top of the garage and the garden bed extending north from the common area of the garage towards the opposite unit block caused or significantly contributed to the damage to the garage wall. 1. The report concludes as follows: As explained to correct the observations noted on site, would be to attack the core issue a (sic) "hydraulic" water problem. My recommended approach would be to design and construct by way of a hydraulic calculation an agricultural subsoil land drain, constructed with the correct invert level and fall, to deal with both the surface water catchment control and natural ground water ingress, that currently detriment (sic) the property. That the northern elevation of the garage wall to unit (sic) 14 be properly prepared, etch primed and coated in 3 coats of the recommended/chosen industry waterproof membrane, receive applied membrane protection, post curing and back filled with the correct drainage material. That (sic) the common garden area hosted by the units concrete garage roof slab and northern adjacent garden area be re-graded and receive adequate surface water catchment control drains and agricultural subsoil land drains to deal with the natural ground water ingress currently deterimenting (sic) the rear wall of unit 14's (sic) garage. 1. Mr Walters provided a separate quotation/scope of works dated 11 January 2020. The scope of works involved installation of an agricultural subsoil land drain and application of waterproof membrane to the garage wall ($43,085 inclusive of GST); and re-landscaping the common garden area ($35,864 inclusive of GST). 2. On 17 January 2020, the parties settled their NCAT dispute at the hearing. The following consent orders were made by Vrabac SM By consent, the respondent to have 6 weeks (until 28 February 2020) to investigate, report, and rectify any defects necessary in a tradesmanlike manner to garage wall of Lot 1 (sic). If the respondent fails to carry out the above, the applicant is to file a renewal. 1. At some point (which was unclear from the documentary evidence of the respective parties) the owners corporation obtained a quotation from Danrae Group to perform waterproofing works to the garage wall. The Danrae Group quote was in the amount of $13,838. 2. According to the respondent, at the Annual General Meeting (AGM) of the owners corporation on 19 February 2020, there were Resolutions to vote on "3 quotes" to perform repairs to the garage wall. It is unclear from the evidence whether the Parallel Lines Design & Construction Pty Ltd was one of the quotes considered at the meeting, because neither party provided in their documents a copy of the Minutes of the AGM. 3. In any event, according to the respondent, the AGM passed a resolution to accept the quotation of Danrae Group. It is clear that the applicant did not agree with such a course of action, because the basis of his claim in these proceedings is that the method of rectification by the Danrae Group was (and is) inadequate. 4. Between about February 2020 and May 2020, Danrae Group performed waterproofing works to the garage wall proximate to the parking areas of Lots 12, 13, and 14. The respondent asserts that Danrae Group had to attend on multiple occasions because the applicant disrupted their works. 5. According to the respondent, in May 2020 the applicant would not agree not to renew proceedings in the Tribunal unless Danrae Group ground out the full wall floor junctions; the floor of the garage of the applicant's Lot was pressure cleaned; and the applicant's contents stored in a parking bay until such work was completed. The strata committee of the owners corporation agreed to this course of action. 6. The applicant complained to the owners corporation that the waterproofing works of Danrae Group were inadequate. The owners corporation engaged Mr Brincat, building consultant, of Auspro Building Services to perform an inspection and prepare a report. 7. Mr Brincat's report is dated 28 November 2020. Mr Brincat states that "there is water ingress into the basement garages" and notes that there had been "negative waterproofing" attempts to stop water ingress. 8. Mr Bricat's report contains a number of photographs showing arears of water ingress into the basement garage area. He discusses 3 potential solutions to prevent the water ingress. 9. The potential solutions are identified as follows: 1. Catch the water via suspended trays under the concrete slab attached to the soffit. 2. Try to inject epoxy fillers where the water is leaking into the garage through the slab. 3. A total re-strip out of the landscape area, repair any concrete cancer, waterproof and re-landscape. 1. Mr Brincat states that option 1 will not work as "water is ingressing from above the slab to the wall juncture". Option 2 is a "band aide approach" and water will still enter at a new location of the garage area. Option 2 would not solve "many issues such as the reinforcement being subjected to water penetration, likely corrosion and probable concrete cancer that will in time affect the structural integrity of the concrete slab". 2. Mr Brincat concludes as follows: Therefore it is my recommendation and considering the concrete slab is most probably circa 50 years of age that a total refurbishment of the landscaped areas to install a positive waterproofing system to the slab and walls be undertaken. I have undertaken these works on many occasions where investigative works are required to establish the condition of the slab, location of the water source etc, arrange other consultants for their professional input such as structural engineer, landscape designers etc to have these works approved by a Council or PCA for a CDC, provide a scope of works and specifications, go to tender, appoint a contractor and supervise the contract works, all as approved by the Executive Committee (sic). The works broadly entail the stripping of the landscaped areas above the concrete slab to the basement, waterproofing to the suspended garage slab behind the external walls to the rear garages and visitor car spaces to the south-eastern (right hand side of the garage area) of the basement, reinstating the lawns and landscaping. Also required would be treatment of the spalling concrete to the suspended slab and treatment of the rusting reinforcement. At this preliminary stage and without detailed drawings and specifications these works could be in the vicinity of circa $250,000 to $350,000 excluding GST. It is assumed the Strata Plan is registered for GST and thus the GST is claimable and refundable on the amounts paid for the refurbishment works. 1. According to the respondent, the recommendation of Mr Brincat was "rejected at the 2020 AGM". Neither party provided a copy of the Minutes of the 2020 AGM. Presumably, there was a Motion for the owners corporation to engage experts to prepare a scope of works in accordance with Mr Brincat's recommendations, but because there was no copy of the Minutes provided the Tribunal does not know the wording of the Motion which was rejected. 2. In June 2021, the owners corporation engaged Danae Group to perform a further inspection. Their report is dated 30 June 2021. Danae Group noted that water entry into the garage area "of Garage 14 (sic) and the adjacent visitor spots" remained present, and "it appears the high volume of water pressure from behind garage walls continue to push any new application of membrane off the wall surface". 3. The report states that Danae Group had "returned to the site on numerous occasions at no cost and attempted to inject weak points of the wall in various area (sic) and applying additional coats of cement based membraned through no success." The report recommended that: 1. The grassed area above the garage be excavated at a minimum to the floor/wall junction area and re-waterproofed with a suitable type of membrane system. 2. The fire-hydrant be excavated and re-waterproofed with a suitable type of membrane system. 3. The path beside the rear of the stairs be joint sealed with a suitable polyurethan sealant and the owners corporation engage a qualified plumber to clean out and jet blast the surrounding stormwater damage. 1. The report of Danae Group dated 30 June 2021 was contained in the documents of the applicant. The copy of the report did not contain any quotation or detailed scope of works. 2. In July 2021, the owners corporation engaged Fluid Building Services to perform an inspection and provide a quotation for repairs. The quotation of Fluid Building Services stated that based on Mr Bricat's report and their own inspection "water is currently penetrating the basement level at the junction of the external retailing walls and suspended concrete slab." The quotation further stated that "water is penetrating through several existing slab penetrations." 3. The quotation of Fluid Building Services recommends that "all hard and soft landscaping be removed from above the basement rooftop slab and a new bituminous membrane be installed." The quotation contains a scope of works for conducting waterproofing repairs (including replacement of the waterproofing membrane of the slab and concrete spalling repairs) and re-landscaping the area with additional drainage and pathways. The total cost identified is $316,045.40 inclusive of GST. 4. In August 2021, the applicant obtained a quotation from Northern Beaches Drainage Pty Ltd. The author of the quote is not identified, nor the qualifications of the person. The quote does not contain any photographs or detailed information other than a scope of works. According to the applicant, the author of the quote is Mr Basset and he has expertise in drainage. 5. The quotation of Northern Beaches Drainage Pty Ltd is for the total amount of $81,853.20. The scope of works is set out in detail. In essence, it involves the following: 1. Install pipes and agricultural drainage. 2. Re-grade and re-turf areas of the common garden and flower beds. 3. Inject polyurethane injection resin and supply and install a plastic membrane to bagged brick layer wall. 1. In September 2021, the owners corporation engaged BD Solutions Consulting (remedial engineers and project management) to organise a tender for waterproofing of the garden area above the garage. 2. BD Solutions Consulting prepared a report dated 13 October 2021. The report stated that Northern Beaches Drainage did not provide a tender price and had been excluded from the tender process. The report states that tenders had been received from Paynter Dixon Remedial and Danrae Group. 3. The report discusses both tenders. Paynter Dixon tender was for $542,608 (inclusive of GST). Danrae Group's tender was for $520,575 (inclusive of GST) and $432,135 (inclusive of GST) if artificial grass was used rather than turf. 4. BD Solutions Consulting recommended the Danrae Group be engaged to perform the repair works and set out reasons for that recommendation. 5. Between 5 and 10 December 2021 there was an email exchange between the applicant and Mr Walters. In an email of 5 December 2021, Mr Walters stated that the owners corporation had not understood that the "core issue" was agricultural sub-soil drainage; that the owners corporation had wasted money by applying an inadequate membrane option; and that the applicant had informed him there was a "$600k quote to rectify what equates to approximately (sic) 24m2 problem". Mr Walters commented that this quantum "did not stack up;" and that the problem should be resolved by "employing an agricultural drainage system that will fix the problem and prevent further water damage and wastage of money in the wrong direction." 6. In an email of 10 December 2021, Mr Walters asserts that his qualifications are "agricultural subsoil drainer (sic) specialising in hydraulics, concrete design and technology and a full builder's licence which I (sic) all qualified with distinctions at the Vauxhall College of Building in South London". 7. On 13 December 2021, the Annual General Meeting of 13 December 2021 was held. Neither party provided a full copy of the Minutes in their documentary evidence, but the applicant provided a copy of the Minutes dealing with Resolution 17 (Waterproofing Tender Approval); Resolution 18 (Garages False Wall & Drainage) and Resolution 18 (Drainage Quote Unit 14). 8. Prior to the AGM, on 6 December 2021 Marrickville Legal Centre (on behalf of the applicant) wrote to the owners corporation with "observations" about Resolutions 17, 18, and 19. 9. Resolution 17 was to approve a "tender to undertake the waterproofing of the garden area to stop water ingress into the garages (tender document from BD Solutions Remedial Engineers attached and from Fluid Building Services for consideration). 10. That Resolution was defeated. The Minutes indicate the reason was "due to the large cost of the works more information was requested to enable owners to vote." 11. Resolution 18 was to "approve a quotation from Danrae Group to (sic) installation of a false wall and drainage to the garages of Units 12, 13 and 14. 12. That Resolution was defeated with the Minutes stating that Danrae had "declined to quote" after receiving engineer's advice that such works were "unwise" as it would "hide potential issues." 13. Resolution 19 was that the owners corporation "approve the quote of Donovan Basset of Northern Beaches Drainage dated 19 August 2021 and engage him to undertake the scope of works contained therein to address the water ingress issue in the garages of the scheme as a drainage problem". 14. The Minutes of the meeting state that the Resolution was defeated. In oral evidence, the applicant asserts it was not defeated but deferred. Irrespective of the accuracy of the Minutes, the Resolution was not passed. The Minutes identify that the reason was that Lot owners who voted against the Resolution sought "a more detailed quote…with the inclusion of diagrams" and that when a scope of works was received the owners corporation would "obtain two further quotes with additional options; quote to be obtained from Building & Waterproofing Reports (sic), P Radcliffe." 15. On 6 May 2022, the applicant commenced proceedings in the Tribunal. 16. In May 2022, the owners corporation (by way of an email dated 17 May 2022) engaged RHM Consultants Pty Ltd (consulting engineers) to perform an inspection and report on "common area drainage and water issues". As of the hearing on 14 June 2022, Ms Greenough stated that the report of RHM Consultants Pty Ltd had not been received and she could not give an estimate of when it would be received.