The Owners – Strata Plan No 13631 v McGrath [2024] NSWCATCD 22

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: The Owners – Strata Plan No 13631 v McGrath [2024] NSWCATCD 22 Hearing dates: On the papers Date of orders: 18 January 2024 Decision date: 18 January 2024 Jurisdiction: Consumer and Commercial Division Before: D Robertson, Senior Member Decision: 1. Pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) a hearing on the question of costs is dispensed with. 2. The applicant's application for costs is dismissed. 3. The first respondent's application for costs is dismissed. Catchwords: COSTS – Civil and Administrative Tribunal – Special circumstances Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) s 60 Civil and Administrative Tribunal Rules 2014 (NSW) r 38 Cases Cited: Cripps v G&M Dawson Pty Ltd [2006] NSWCA 81 DYH v Public Guardian (No 3) [2022] NSWCATAP 34 Gagner Pty Ltd t/a Indochine Café v Canturi Corporation Pty Ltd [2009] NSWCA 413 James v Department of Justice (Corrective Services NSW) (No 2) [2022] NSWCATAP 216 Category: Costs Parties: The Owners – Strata Plan No 13631 (Applicant) Peter McGrath (First Respondent) Kate Elizabeth Barrington (Second Respondent) Representation: Solicitors: Jane Crittenden Lawyer (Applicant) Morson Law (First Respondent) File Number(s): 2023/00402022 (Previously SC 23/15133)

REASONS FOR DECISION

Introduction 1. The applicant is the owners corporation of a strata plan in Rose Bay, New South Wales. The first respondent is the owner of Lot 8 in the strata plan. The second respondent is the owner of Lot 6. Lot 6 is directly below Lot 8. 2. The applicant brought proceedings seeking orders that the first respondent carry out work within the ensuite bathroom of Lot 8 and to the drain from the ensuite, including the trap apparatus in the ceiling space of Lot 6. The applicant also sought ancillary orders authorising the applicant to undertake the work if the first respondent failed to do so, that the first respondent give access to the applicant to permit that to occur, and that the first respondent reimburse the applicant for the costs incurred in doing so. 3. The applicant also sought an order that the second respondent grant access to the first respondent and/or the applicant to undertake the relevant work. The second respondent consented to an order in those terms and took no further part in the proceedings. 4. On 13 July 2023 I heard the application and made the following substantive orders: 1. Pursuant to s 232 of the Strata Schemes Management Act 2015 (NSW) the first respondent is, by duly licensed and insured contractors, to perform the following work in compliance with special by law 6 of the registered by laws of Strata Plan 13631 : (a) Replace the trap apparatus connected to the drain from the ensuite bathroom in lot 8 (the ensuite) with a trap apparatus that complies with the Australian Standard AS/NZS 3500:2:2021 ensuring a seal between the new trap apparatus and the existing pipe work. (b) Carry out a flood test within the ensuite to establish that there is no leakage from the ensuite, or the drain from the ensuite, into lot 6 or the ceiling space above lot 6. (c) In the event the flood test reveals leakage into lot 6 or the ceiling space above lot 6, carry out such further work on the waterproofing membrane within the ensuite as is necessary to ensure there is no leakage from the ensuite into lot 6 or the ceiling space above lot 6. The efficacy of such work to be established by a further flood test. (d) Repair the ceiling of lot 6 under the ensuite and any other caused to lot 6 in the course of the work. 2. The first respondent is to provide the applicant and the second respondent with 7 days written notice of any flood test to be carried out in accordance with order 1 and to permit a representative of the applicant, and/or an expert instructed by the applicant, to attend any such flood test. 3. The first respondent is to complete the work the subject of order 1 within 90 days of the date of these orders (that is by 11 October 2023). 4. In the event the first respondent fails to carry out or complete the work the subject of order 1 within 90 days of the date of these orders, the applicant, by its nominated agents, servants and contractors, may carry out or complete the work the subject of order 1, for which purpose the first respondent shall permit the applicant's agents, servants and contractors access to lot 8 on seven days written notice. 5. The applicant may recover the cost of carrying out works pursuant to order 4 from the first respondent as a debt pursuant to s 120(5) of the Strata Schemes Management Act 2015. 6. The second respondent shall grant access to lot 6 to the first respondent, by his nominated contractors, and to the applicant, by its nominated agents, servants and contractors, upon 7 days written notice for the purpose of carrying out work required or permitted by order 1 and/or order 4. 1. I gave oral reasons for my decision. 2. I was satisfied on the basis of the evidence, including a joint report prepared by experts retained by each side, that: 1. For some time there had been water penetration into Lot 6 from the ensuite bathroom in Lot 8 2. The drain below the ensuite, in particular the trap apparatus, did not comply with Australian standards and was the likely source of the leak. 3. The ensuite bathroom in Lot 8 had been constructed in about 2006 by a previous owner of Lot 8 in a location which had not previously been a wet area. 1. It was conceded by the first respondent that the drain from the ensuite, including the trap apparatus, was installed as part of the works in about 2006 and that those works were carried out pursuant to special by-law 6 adopted by the strata scheme. 2. Special by-law 6 provided that the owner for the time being of Lot 8 was responsible for the repair and maintenance of the works carried out pursuant to that by-law. 3. In essence, I determined that the first respondent was responsible for the undertaking of work to rectify the leak into Lot 6 but that, as the evidence indicated that it was possible (even likely) that the rectification of the trap apparatus would be sufficient to rectify the leak, it was only necessary in the first instance to direct the first respondent to rectify the trap apparatus. Provided a flood test following the rectification of the trap apparatus indicated that the leak had been rectified, no further work would be necessary. If the flood test indicated that the leak had not been rectified, the respondent would be liable to undertake further works to ensure the leak was stopped. 4. I made directions permitting either party to file submissions seeking an order for costs. I noted that the parties were agreed that the question of costs could be determined on the basis of written submissions and without a further hearing. 5. The applicant filed submissions on 25 July 2023 seeking an order for costs. The first respondent filed submissions on 3 August 2023 seeking an order for costs in his favour. The applicant filed submissions in reply on 11 August 2023. 6. Having reviewed the submissions, I am satisfied that the issues for determination can be adequately determined in the absence of the parties by considering the written submissions and will make an order pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) dispensing with a hearing in respect of the question of costs.