Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hsueh v The Owners – Strata Plan No 61321 [2024] NSWCATCD 47 Hearing dates: 11 January 2024 and 11 April 2024 Date of orders: 6 August 2024 Decision date: 06 August 2024 Jurisdiction: Consumer and Commercial Division Before: D Robertson, Senior Member Decision: (1) The respondent, The Owners – Strata Plan No 61321 is to employ appropriately licensed and qualified tradespersons or contractors to carry out the following work in a proper and workmanlike manner using suitable new materials and in accordance with all relevant laws, rules and regulations, within three months of the date of these orders: (a) The work in relation to Lot 5 in Strata Plan No 61321 (Lot 5) identified in the third to sixth, eighth and ninth bullet points in paragraph 10.1.12 of the report of Mr Kavanagh of Integrated Building and Engineering Consultancy dated 25 September 2023 (the IBEC Report); (b) Treat any instances of mould identified in Lot 5, including in areas presently covered by floating timber floors provided the applicant has previously arranged the removal of the floors; (c) The work identified as Option 1 in paragraph 10.1.22 of the IBEC Report (the Option 1 work); (d) Replace the air brick missing from the courtyard of Lot 5; (e) Ensure that no rodents or other pests remain in any ventilation space adjacent to Lot 5. (2) Upon completion of the Option 1 work, the respondent is to arrange a test (the Option 1 test) to be carried out by a suitably qualified plumber or waterproofing contractor to determine whether the Option 1 work has been effective in preventing leakage of water into Lot 5 from the balcony of Lot 11. (3) If the Option 1 test shows that the Option 1 work has not been effective in preventing leakage of water into Lot 5 from the balcony of Lot 11, the respondent must employ appropriately licensed and qualified tradespersons or contractors to carry out, in a proper and workmanlike manner using suitable new materials and in accordance with all relevant laws, rules and regulations, within a further two months, the work identified as Option 2 in paragraph 10.1.22 of the IBEC Report (the Option 2 work). (4) At the respondent's election, it may carry out the Option 2 work, without carrying out the Option 1 work, within three months of the date of these orders. (5) The respondent, The Owners – Strata Plan No 61321, must pay the applicant, Jade Y Hsueh, the sum of $11,504 (being $935 reimbursement of mould treatment costs and $10,569 in respect of damage to her floating timber floors) within 30 days of the date of these orders. (6) The application is otherwise dismissed. (7) Unless either party files submissions in accordance with order (8) below, there will be no order in relation to the costs of the proceedings. (8) If either party seeks an order in relation to the costs of the proceedings, they may file, and serve upon the other party, submissions of no more than five pages, with any evidence in support, within 14 days of the publication of these orders. (9) If a party files and serves submissions pursuant to Order (8) above, the other party may file and serve submissions in response of no more than five pages, with any evidence in support, within a further 14 days. (10) Submissions in reply to submissions filed and served pursuant to Order (9) above, of no more than three pages, may be filed and served within a further 7 days. Catchwords: LAND LAW – Strata title – Common property - Maintenance and repair of common property – Compensation for breach of owners corporation's obligation to maintain and repair common property – Time limit in s 106(6) of the Strata Schemes Management Act 2015 may not be extended by the Tribunal pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 LAND LAW – Strata title – Common property – Maintenance and repair of common property – Compensation may be awarded for damage to floating timber floors installed without the approval of the owners corporation – No reason to conclude floors would have been required to be removed if not damaged – No reason to conclude approval would not have been given, or that application for approval could have been reasonably refused LAND LAW – Strata title – Owners corporation — Contributions by owners – Tribunal has no jurisdiction to make an order declaring that a lot owner does not owe money to the owners corporation Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Strata Schemes Management Act 2015 (NSW) Cases Cited: David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265; [1995] HCA 43 Di Rico v Cominos [2015] NSWCATCD 75 Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425 Hua Nan Trading Pty Ltd v The Owners – Strata Plan No 32396 [2023] NSWCATAP 66 Hungerfords v Walker (1989) 171 CLR 125; [1989] HCA 8 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Kaye v Owners Strata Plan 4350 [2022] NSWSC 1386 The Owners - Strata Plan No 30691 v Pickard [2024] NSWCATAP 126 The Owners – Strata Plan No 37762 v Pham [2006] NSWSC 1287 The Owners – Strata Plan No 74232 v Tezel [2023] NSWCA 35 The Owners – Strata Plan No 74835 v Pullicin; The Owners – Strata Plan No 80412 v Vickery [2020] NSWCATAP 5 The Owners – Strata Plan No 76830 v Byron Moon Pty Limited [2020] NSWCATAP 186 Treadgold-Svir v Dynamik Constructions Pty Ltd [2023] NSWCATAP 216 Vickery v The Owners – Strata Plan No 80412 [2020] NSWCA 284 Walsh v The Owners – Strata Plan No 10349 [2017] NSWCATAP 230 Category: Principal judgment Parties: Jade Y Hsueh (Applicant) The Owners – Strata Plan No 61321 (Respondent) Representation: Solicitors: Thomas Martin Lawyers (Respondent) File Number(s): 2023/00392830 (formerly SC 23/24509) REASONS FOR DECISION Introduction 1. The applicant is the owner of Lot 5 in Strata Plan No 61321. The respondent is the owners corporation of Strata Plan No 61321. The applicant commenced these proceedings on 24 May 2023, seeking eight specific orders and "such further or other order as the Tribunal deems appropriate". 2. At the hearing, which took place on 11 January and 11 April 2024, the applicant relied upon a document filed on 5 January 2024, which set out 10 substantive orders, and also sought costs. 3. The orders sought in that document were: "1 That the owners corporation rectify the water ingress and related internal damage occurring at and above Lot 5." "2 That the owners corporation replace the ventilation tile which was removed in order to investigate the water ingress in or about February 2022, and that prior to doing so, the owners corporation take all reasonable steps to ensure that no rodents or other pests remain in the ventilation and ceiling cavity space." "3 That the owners corporation take steps to locate the source of the tapping/knocking noise detected in Lot 5, and, if the noise source is located on common property, to perform appropriate rectification work to prevent the noise from continuing." "4 That the owners corporation pay to the applicant the sum of $79,300 being for lost rental income for the period 26 May 2021 to 27 September 2023, and additional sum of $650 per week for the further period to date for continuing lost rental income." "4.1 That the owners corporation pay to the applicant the sum of $80,135.71 being for lost rental income for the period 14 January 2019 to 25 May 2021." "5 That the owners corporation pay to the applicant the sum of $6,118.72 incurred due to the dis-repairs of common property." "6 That the owners corporation pay to the applicant sum of $14,749 being for replacement of floorboards damaged by water ingress. Or an work order that the owners corporation replace the damaged floorboard and prior to the replacement it is required professional mould cleaning of the subfloor to be carried out according to the quote from the floor specialist". "7 That the applicant does not owe any money to the respondent in respect of levies or reimbursable expenses as at the date of this order." "8 That the owners corporation pay the interest incurred on the mortgage due to rental income losses suffered as indicated in orders sought 4 and 4.1… And the interest on the expenses incurred due to dis-repairs of common property by evidenced tax invoices in orders sought 5." "9 That the owners corporation replace the damaged sliding screen doors." "10 Costs order in proceedings and such further or other orders as the Tribunal deems appropriate." Evidence 1. The parties prepared a hearing bundle of two volumes. Volume 1 contained the applicant's documents. Volume 2 contained the respondent's documents. Both volumes were admitted in evidence although certain parts were received only as submissions, and pages 282 to 283 were excluded as without prejudice correspondence. 2. The respondent also tendered a letter from its solicitors to the applicant dated 27 March 2024. Although that letter contained a settlement offer stated to be made on a without prejudice basis, the letter was tendered on the second day of the hearing as an open offer by the respondent. I received the document on that basis. 3. The applicant gave oral evidence on both days of the hearing and answered questions both from the Tribunal and from Mr Powys, solicitor for the respondent. 4. A report from Mr Kavanagh of Integrated Building and Engineering Consultancy (IBEC) dated 25 September 2023 was admitted in evidence, although Mr Kavanagh was not available for cross-examination. Both parties relied upon Mr Kavanagh's conclusions. 5. It is convenient to deal with the orders sought by the applicant in turn. 1. Rectification of water ingress and "related internal damage". 1. The applicant maintained that the respondent had failed to comply with its obligations pursuant to s 106 of the Strata Schemes Management Act 2015 (NSW) (SSMA). 2. Section 106 of the SSMA provides: 106 Duty of owners corporation to maintain and repair property (1) An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation. (2) An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation. (3) This section does not apply to a particular item of property if the owners corporation determines by special resolution that— (a) it is inappropriate to maintain, renew, replace or repair the property, and (b) its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme. (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. (5) An owner of a lot in a strata scheme may recover from the owners corporation, as damages for breach of statutory duty, any reasonably foreseeable loss suffered by the owner as a result of a contravention of this section by the owners corporation. (6) An owner may not bring an action under this section for breach of a statutory duty more than 2 years after the owner first becomes aware of the loss. (7) This section is subject to the provisions of any common property memorandum adopted by the by-laws for the strata scheme under this Division, any common property rights by-law or any by-law made under section 108. (8) This section does not affect any duty or right of the owners corporation under any other law. 1. The applicant sought orders that the respondent undertake works: 1. Remediating the damage which she asserted had arisen from water ingress from common property; and 2. Rectifying water ingress entering Lot 5 from the balcony of Lot 11 above. 1. In respect of the remediation work, the applicant referred to two quotations from Antonios Tawk, dated 29 January and 1 February 2024, for the repair of walls in two bedrooms and the ceiling on the balcony, the replacement of the ceiling and cornices in the two bedrooms, and painting throughout. In relation to the continuing leakage from Lot 11, the applicant referred to a quote dated 9 February 2022 from Sydney Remedial Trades. That quotation involved the removal of all tiles and tile bed from the balcony to unit 11 and the installation of a waterproof membrane. 2. Mr Kavanagh's report was dated 25 September 2023 and was prepared on instructions from the solicitor for the respondent. Mr Kavanagh recorded information provided by the applicant as follows: "9.1.1 Previously the unit was subject to mould growth to all ceiling areas other than the bathroom and bed 2. 9.1.2 The ceilings within the unit were re-painted in the beginning of 2022. 9.1.3 External waterproof membrane works were carried out within the courtyard to prevent water entry. This entailed removing the one row of tiles next to the eastern elevation walls of the lounge and bedroom and the application of a waterproof membrane at the wall to floor junction." 1. Mr Kavanagh's reported findings in relation to water damage from previous water ingress were as follows: "10.1.1 Water entry in the form staining and efflorescence damage along with swelling of the adjoining timber floor boards was observed to both the N/E corner of the lounge/dining and S/E corner of bed 1. 10.1.2 The areas of damage to both the lounge/dining and bed 1 back on to each other and the northern walls to both are external walls which back on to the open tiled courtyard. This damage is identified within photo 3 below. 10.1.3 As previously noted in paragraph 9.1.3 above, the Owners Corporation made arrangements to have the row of floor tiles within the courtyard immediately next to the unit 5's eastern external wall removed so that a new bandage style membrane could be installed commencing on the courtyard slab and then running up the outside face of the brick wall to finish under the cavity flashing projection in an attempt to rectify the leakage. 10.1.4 Moisture meter readings were taken from the affected wall areas to both the lounge/dining and bedroom 1. The process in obtaining the readings was initially a datum (base-line) reading taken from an unaffected area of external wall at approx. 1900mm in height and then readings were taken within the damaged areas at the base of the wall. This gives a true indication as to if there is moisture present. 10.1.5 The datum readings for both the lounge/dining and bedroom 1 areas were both 0 when using the separate detection settings. The readings obtained from the areas of damage to both the lounge/dining and bed 1 areas were also 0. 10.1.6 This uniformity of readings would appear to confirm that the waterproofing works undertaken within the courtyard area by the Owners Corporation have been successful in rectifying the original leak. 10.1.7 Measurements taken in order to determine the levels of the internal/external concrete floor slabs would indicate that the external courtyard slab has been set at approximately the same level as the internal floor slab. An exact determination is unable to be made as the total depth of the courtyard sand/cement tile bed is unknown. 10.1.8 With the two floor slab areas being very close to each other in level, in order to ensure there is no transfer of moisture from the courtyard to the internal areas, some form of membrane would be required from floor slab level up to the height of the cavity flashing which is set approx. 40mm above the finished floor level of the courtyard tiles. 10.1.9 It is considered that there was a failure within the original waterproofing details at the base of the eastern wall (adjacent to the junction between the lounge/dining and bed 1) which has allowed water/moisture contained within the courtyard sand/cement tile bed to transfer directly through the base of the eastern wall via capillary action, cross the cavity and into the base of the lounge/dining & bed 1 internal walls. 10.1.10 There was no other evidence of any form of water entry and or moisture damage/mould growth to any other internal area of unit 5. Moisture meter readings were taken from the ceiling areas of both rooms and all readings both datum and areas under (bed 1) and or adjacent (lounge/dining) to the open balcony of unit 11 above and all were uniformly 0." 1. Photo 3 (referred to in the above extract at 10.1.2) was a plan of Lot 5 on which Mr Kavanagh had drawn a line indicating the parts of the walls within Lot 5 which showed signs of damage from water entry. The relevant area is the internal faces of the external walls of the lounge and bedroom 1 between their respective sliding doors and the internal wall dividing the lounge from bedroom 1, extending about halfway from the external wall to the bedroom door. 2. Mr Kavanagh suggested remediation of the damage as follows: "10.1.11 Remedial repairs at this point of time (as the cause of the water entry has previously been addressed by the Owners Corporation) would only require rectification to the consequential damages as a result of the leakage. 10.1.12 Remedial repair methodology;- • Remove and dispose of the floating timber flooring laid within the lounge/dining, hall areas and bed 1 • If it is found upon removing the floor boards that mould is evident underneath as result of the original leakage, then this will need to be addressed by a specialist mould remediation company • Scrape down and remove all areas of damaged and delaminated paint to the wall areas as depicted in photo 3 below • Prepare the wall areas in readiness for painting • Patch paint the areas of damage with Dulux 1Step oil-based primer, sealer & undercoat • Allow to re-paint (two coats) the affected wall areas from shadow line to shadow line using a colour and sheen matched Dulux wash and wear • Supply and lay new floating floor boards and associated trims to the lounge/dining, hall and bed 1 areas to best match the finish and specifications of the original flooring • Make good any original surface finish affected by the remedial works • Clean up on completion" 1. I note that the issues with the wooden floor are the subject of order 6 sought by the applicant and will be addressed in that context. 2. In relation to the water ingress from the balcony of Lot 11, Mr Kavanagh's reported observations were: "10.1.13 Water leakage in the form efflorescence growth was observed to the underside of the concrete slab forming the balcony floor slab for unit 11 which is positioned over the top of unit 5 10.1.14 It is assumed that as the unit 11 balcony slab projects over the unit 5 bed 1 that it was fitted with a waterproof membrane 10.1.15 Leakage resulting in a build-up of efflorescence forming stalactites was observed coming out of a fissure crack line within the underside of the concrete slab area that is positioned over the top of a vertical riser shaft positioned in the N/E corner of unit 5's bedroom 1. 10.1.16 Further leakage was observed within the underside of the concrete slab (forming the soffit for unit 5's courtyard area) directly adjacent to the vertical riser shaft detailed in the paragraph above. This leakage has resulted in efflorescence damage to the texture coated paint finish to the unit 5 courtyard soffit slab with areas of the texture coating now delaminating from the soffit slab. 10.1.17 This leakage is originating from the tiled balcony area of unit 11 above. The balcony which is positioned on the eastern and northern sides of the unit is finished with 300mm x 300mm terracotta floor tiles over a sand cement bed. 10.1.18 Based on the evidence, moisture from the sand/cement tile bed is penetrating down into the concrete balcony slab via an age-related failure within the membrane and then working its way through the slab via fissure cracks and or areas where the concrete was not sufficiently vibrated leaving small voids in which moisture can transfer through via capillary action. 10.1.19 At the time of the inspection there was no evidence of any form of leakage from the unit 11 balcony slab that was entering the internal (habitable) areas of unit 5 below. 10.1.20 It was observed during my inspection that the overflow provision for the unit 11's balcony (through the base of the eastern balustrade wall) had been sealed off, however this is positioned well away from the area of leakage and is not considered to be a factor in the leak cause". 1. Mr Kavanagh's proposed repair method is as follows: "10.1.21 Remedial repairs could be carried out as a two-stage process being an initial epoxy injection and then potentially a strip, re-membrane and re-tile of unit 11's balcony if the epoxy injection is not 100% successful 10.1.22 Remedial repair methodology;- • Option 1 • Scrape back and remove all traces of efflorescence and damaged/delaminated texture coating from the underside of the unit 11 balcony slab from within the unit 5 courtyard area and over the top of the riser shaft positioned in the N/E corner within unit 5's bed 1 in order to expose the areas from where the moisture is penetrating from the slab soffit • Engage a specialist contractor to carry out an epoxy drill and inject process along the lines of the leakages • Grind and remove the injection nipples and any excess epoxy to leave the soffit area clean and smooth • Prepare and prime the soffit within the areas of repair • Allow to patch paint the areas of repair to the soffit using Dulux Texture to best match the original. • Allow to apply additional coat of Texture over the entire soffit area from shadow line to shadow line in order to ensure uniformity of finish • Make good any original surface finish affected by the remedial works • Clean up on completion • Option 2 • Scrape back and remove all traces of efflorescence and damaged/delaminated texture coating from the underside of the unit 11 balcony slab from within the unit 5 courtyard area and over the top of the riser shaft positioned in the N/E corner within unit 5's bed 1 in order to expose the areas from where the moisture is penetrating from the slab soffit • Remove and dispose of the tiles, tiled bed and original membrane to the unit 11 balcony • Prepare the unit 11 balcony slab for a new liquid waterproof membrane to be applied in accordance with AS4654.1 (Waterproofing membrane systems for exterior use — materials) and AS4654.2 (Waterproofing membrane systems for external above ground use — design and installation) • Supply and lay new sand cement tile bed set with correct falls to all waste/discharge points • Supply and lay new best matching and correctly slip rated tiled • Prepare and prime the unit 5 soffit within the areas of repair • Allow to patch paint the areas of repair to the soffit using Dulux Texture to best match the original. • Allow to apply additional coat of Texture over the entire soffit area from shadow line to shadow line in order to ensure uniformity of finish • Make good any original surface finish affected by the remedial works • Clean up on completion". 1. Mr Powys on behalf of the respondent did not dispute that there was water damage within Lot 5 but submitted that the extent of remediation works set out in Mr Tawk's quotations was excessive. 2. Mr Powys submitted that the scope of works described by Mr Kavanagh was sufficient. 3. Mr Powys stated that the respondent was prepared to carry out the remedial scope of works set out in the letter of 27 March 2024 paragraphs 1(a) and (b), that is: 1. To remove any instances of mould identified throughout Lot 5; 2. To repaint any discoloured parts of Lot 5, caused by water ingress. 1. In respect of the lot 11 balcony, Mr Powys indicated that the respondent was prepared to carry out Mr Kavanagh's option 1 initially, and option 2, if option 1 was not successful in preventing water leaking from lot 11's balcony into lot 5. 2. The applicant provided no evidence to justify the extent of remedial work outlined in Mr Tawk's quotations. In particular, the applicant did not provide any evidence, from any person with appropriate qualifications to express an opinion on the issue, that it was necessary to replace the ceilings in two bedrooms. 3. I accept that Mr Kavanagh's scope of works for remediation of previous water damage is appropriate. The respondent did not suggest that its liability to repair the water damage to the walls within Lot 5 was affected by s 106(6). 4. In respect of the water leaking from Lot 11, I consider that, unless the respondent determines to carry out option 2 outlined by Mr Kavanagh, it is appropriate to order the respondent to carry out option 1, to test to determine whether water is continuing to leak from the balcony of Lot 11 into Lot 5, and, if that is the case, to carry out option 2. If the testing at the completion of the works indicates that the leak has been rectified, but the leak returns in future, the applicant will be entitled to bring further proceedings at that time, if the respondent does not then undertake appropriate repairs. 5. I consider that three months is sufficient time for the respondent to carry out the work which I will direct it to carry out. In the event the respondent carries out option 1 and testing shows that it has not been effective, I will allow a further two months for the completion of option 2. 2. Replacement of ventilation tile and removal of pests 1. It is not in dispute that a ventilation tile (or air brick) has been removed from a wall within the applicant's lot. Mr Powys referred to items 1(c) and (d) in the letter of 27 March 2024 by which the respondent had offered to: "(c) replace the air brick missing from the Property's courtyard; (d) ensure that no rodents or other pests remain in any ventilation space adjacent to the Property;" 1. Mr Powys indicated that the respondent continued to be prepared to retain a suitably qualified contractor to undertake those tasks. 2. The only evidence of the presence of rodents or other pests was: emails from the applicant to the respondent's strata manager in which the applicant asserted that she had noticed noises suggesting movement in the cavity above the ceiling of her bedroom and had found droppings which she suggested were rat droppings "on the floor around the hole where the ventilation tile was removed"; and a photograph attached to one of those emails which shows what could be animal droppings on a concrete floor. 3. As the owners corporation has indicated it is willing to take steps to ensure that no rodents or other pests remain in any ventilation space adjacent to the applicant's lot, I do not consider it necessary to determine whether rats were in fact present. 4. I will order the respondent to undertake the work referred to in items 1 (c) and (d) of the open offer. 3. Knocking noise detected in Lot 5 1. The applicant states that she has been troubled by a persistent knocking noise audible from her lot. 2. The applicant relied upon a report prepared by AUS Covert Investigations dated 5 December 2022 headed "electronic bug sweep". 3. The report records: "There is an intermittent banging noise emanating intermittently and irregularly from the ceiling area that was evident since 2017. The noise ranges intensity from very loud to soft. The agent heard the noise several times during the time spent with the client. It emanated from the precise spot indicated by the client." 1. The report indicated that an electronic sweep of the apartment had been conducted and no transmitting signals were found. The report stated: "The agent is not qualified to comment on the source of the banging noise emanating from the client's bathroom ceiling. A tradesman or other qualified person should make the inspection." 1. The applicant indicated that the noise had been disrupting her sleep and causing her distress. 2. The respondent's position, as set out in its written submissions, was: "48 The applicant has failed to identify any plausible reason as to why the owners corporation should expend its limited resources investigating alleged noise complaints. 49 It should also be observed that the applicant has not provided the Tribunal with any explanation as to whether it is empowered to grant the relief sought. As such, even if the Tribunal were convinced that the owners corporation should expend resources investigating an uncertain cause of noise, this aspect of the claim should not go any further. 50 Although not specified within the materials filed, the applicant presumably relies on s 232 of the SSMA, the dispute resolution provision, to make good her entitlement to the noise order." 1. The respondent referred to the Appeal Panel decisions in The Owners – Strata Plan No 74835 v Pullicin; The Owners – Strata Plan No 80412 v Vickery [2020] NSWCATAP 5 (Pullicin) and The Owners – Strata Plan No 76830 v Byron Moon Pty Limited [2020] NSWCATAP 186 and the decision of Rothman J in The Owners – Strata Plan No 37762 v Pham [2006] NSWSC 1287 in support of the propositions that: "50 …The Tribunal can only make an order to resolve a strata dispute where the legislation provides a specific power to do so and that the general order making power in that legislation (s 232) does not solely allow the Tribunal to make orders to resolve strata disputes.… 51 … For the applicant to be entitled to the noise order she will need to direct the Tribunal to a part of the legislation that specifically entitles it to order an owners corporation to investigate noise complaints and carry out inspections concerning rodents. 52 The owners corporation respectfully submits that such an order is not of a time kind contemplated by any other power created by the SSMA." 1. That submission fails to acknowledge that the Appeal Panel decision in Pullicin was overturned by the Court of Appeal in Vickery v The Owners – Strata Plan No 80412 [2020] NSWCA 284. In that case the Court of Appeal rejected a submission that s 232 of the SSMA did not empower the Tribunal to make an award of damages for breach of s 106 of the SSMA. Basten JA held, at [26] – [28]: "26 Section 232 of the Strata Schemes Management Act … confers functions on the Tribunal. It is expressed in broad terms. Leaving to one side the reference to "an order to settle", that which may be settled is a "complaint or dispute" about six categories of matter, of which only three are relevant for present purposes. Indeed, it is probably sufficient to focus on subs (1)(e), which identifies "an exercise of, or failure to exercise, a function conferred or imposed by or under this Act". No submission was put to this Court that the imposition of a duty to maintain common property pursuant to s 106(1) was not a function conferred or imposed on the owners corporation. A complaint by a lot owner that common property is in a state of disrepair would readily be characterised as a complaint of a failure to exercise the function of maintaining common property in good repair. If the owners corporation did not accept that there had been a breach of duty, or did not agree with a request in the lot owner's claim for remedial steps to be taken, there would be a "dispute" within the meaning of the chapeau to s 232(1). A claim for damages said to result from the contravention of the duty could form part of a complaint about the failure to maintain the common property and, if rejected, would constitute a dispute "about" the failure of the owners corporation to exercise its function under s 106(1). 27 Alternatively, s 106(5), by conferring a right on the owner of a lot to recover damages from the owners corporation necessarily imposes on the owners corporation a function of making good any reasonably foreseeable loss suffered by the lot owner as a result of its contravention of the duty to maintain the common property in a state of good repair. Its failure, or refusal, to take such a step would create a dispute. 28 If the reasoning in these respects is sound, the only basis for denying jurisdiction in the Tribunal to consider an application relating to a failure on the part of the owners corporation to pay damages with respect to a reasonably foreseeable loss suffered by the lot owner, is that an order to pay damages would not involve making "an order to settle" a complaint or dispute. However, it is difficult to understand why this language should be read down to that extent. The statutory scheme must be read as a whole. The terminology adopted in s 232 should be understood to cover claims and disputes with respect to any of the matters identified in subs (1), which are themselves in terms clearly intended to cover the full range of an owners corporation's functions in operating, administering and managing the strata scheme, and exercising or failing to exercise any function under the Act, or the by-laws of the strata scheme." 1. White JA held, at [166] – [167]: "166 … I see no reason to read down the amplitude of the authority conferred on the Tribunal by s 232(1). 167 It is true that if full amplitude is given to the words of s 232(1), then the provision would cover some of the more specific powers conferred on the Tribunal by other sections of the Act. But the Act is not structured in such a way that the conferral of specific powers on the Tribunal should be seen as limiting the conferral of the general power under s 232(1). The specific powers conferred on the Tribunal do not form a class or a genus by reference to which the general power under s 232(1) is to be read down." 1. At the hearing, Mr Powys' submissions went no further than submitting that the evidence does not establish that whatever issue is causing the noise is or involves a defect in the common property. 2. In my view it is a reasonable inference that the noise of which the applicant complains is emanating from common property. The report from AUS Covert Investigations is not qualified expert opinion, but it is corroboration of the applicant's complaint that there is intermittent noise sufficient to disturb the applicant's quiet enjoyment of her lot. There is no reason to believe that the noise might be emanating from within another lot. 3. Given the inference which I have noted above, it follows that the respondent does have an obligation to rectify whatever fault or deficiency in the common property is causing the noise. However, the Tribunal cannot make work orders requiring an owners corporation to "take steps". 4. On 27 September 2023 the Tribunal made orders which included a note: "12 The Tribunal notes that if a party seeks a work order it will not make a work order for the repair of the common property and any damage to the applicant's lot without a scope of works for the repairs." 1. The applicant has not provided a scope of works or even identified the nature of the "steps" she asks the respondent be directed to take. 2. In Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425 Parker J held, at [104] – [105] and [114], in relation to s 62 of the Strata Schemes Management Act 1996 (NSW) which was in similar terms to section 232 of the SSMA: "104 As Senior Member Ross acknowledged, the orders did not specify the works in question. Orders in this form gives rise to two particular problems. The first is that the orders leave it unclear what it is that the Strata Corporation is being ordered to do. The second is that the order are not necessarily confined to complying with the Strata Corporation's obligations under SSMA s 62. 105 Both of these problems are illustrated by the replacement of the lift. The relevant order requires the Strata Corporation "to replace the lift in the existing shaft and associated works". No doubt the reference to replacement in the existing shaft was included in Ms Hegyesi's application because, whatever else she wanted the Strata Corporation to do, she did not want it to adopt the approach which had been put forward by the majority owners of replacing the whole lift shaft as well as the lift car. But there is no concrete proposal for the replacement of the lift in the shaft, in the sense of a defined scope of works. All sorts of technical difficulties might arise. The order gives no guidance as to how such difficulties would be overcome. It simply commands the Strata Corporation to achieve a specified result by a specified date. And the "associated works" are completely unspecified. The Strata Corporation is left to guess what it is required to do. … 114 … the Tribunal, may have power to make an order that an owners' corporation carry out a defined repair in order to comply with its obligation under SSMA s 62. But the orders made in this case have been made in a form which takes them outside the limits of any such power. In truth, the orders are nothing more than a vague "wish list" from Ms Hegyesi. They should not have been made and must be set aside." 1. The orders sought by the applicant suffered the same flaw. To obtain orders from the Tribunal it is not necessary for the applicant to identify the source of the noise and the scope of the works required to fix it. The Tribunal may direct the respondent to conduct investigations. However, before the Tribunal could make an order concerning the noise of which the applicant complains, it would be necessary for the applicant to identify the nature and scope of the investigations to be undertaken and the identity, or at least the qualifications required, of the person to undertake any investigation. 2. The applicant having failed to provide that information, the Tribunal cannot make any order. 4 and 4.1. Compensation for loss of rent 1. The applicant did not dispute that her claim for compensation for loss of rent was brought more than two years after she first became aware of the loss. The claim is therefore barred by section 106(6) of the SSMA. 2. In this respect there is no difference between the loss of rent for the two years prior to commencement of the proceedings (the subject of order 4) and the loss of rent more than two years prior to the commencement of the proceedings (the subject of order 4.1): see The Owners – Strata Plan No 74232 v Tezel [2023] NSWCA 35 at [41] – [49]. 3. The applicant sought an extension of time pursuant to section 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) to bring proceedings seeking compensation for lost rent. 4. Section 41 of the NCAT Act provides: 41 Extensions of time (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired. 1. There are conflicting authorities from the Appeal Panel of the Tribunal concerning whether the time limit imposed by s 106(6) of the SSMA may be extended pursuant to s 41 of the NCAT Act. 2. In Hua Nan Trading Pty Ltd v The Owners – Strata Plan No 32396 [2023] NSWCATAP 66 the Appeal Panel held that the time limit imposed by section 106(6) was not jurisdictional and that the time for the lodgement of an application could be extended beyond two years from the lot owner first becoming aware of the relevant loss. 3. In The Owners - Strata Plan No 30691 v Pickard [2024] NSWCATAP 126 (Pickard) a differently constituted Appeal Panel disagreed. The Appeal Panel held, at [76] – [78] and [100]: "76 The ratio decidendi of the Appeal Panel decision in Hua Nan is contained in [87] and in [95]. At [87] the Appeal Panel held that s 41 is expressed in broad language and there is no warrant to read its provisions down. At [95] the Appeal Panel held that the use of the phrase in s 41 that the Tribunal may extend time "despite anything to the contrary under that legislation" indicates that s 41 is a provision which overrides anything to the contrary in legislation which confers general jurisdiction on the Tribunal. 77 However, that Appeal Panel did not consider s 35 of the NCAT Act, a matter to which we will return later. 78 Section 106(5) provides that an owner of a lot in a strata scheme may recover from the Owners Corporation, as damages for breach of statutory duty, any reasonably foreseeable loss suffered by the owner as a result of a contravention of this section by the owners corporation. The provisions of s 106(1), (2) (3) and (4) provide that the Owners Corporation must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the Owners Corporation. Section 106(6) provides that an owner "may not bring an action under this section for breach of statutory duty" more than two years after the owner first becomes aware of the loss. The phrase "may not bring" was considered by the Appeal Panel in Hua Nan and at [105] the Appeal Panel held that it should take a purposive rather than literal approach to the meaning of that phrase and that, by necessary implication, the words refer to the doing of something within two years which, if not done (or if time were not extended) will prevent the owner seeking damages. We respectfully disagree with the Appeal Panel and take a different view. 79 The phrase "may not bring" is not substantially different to the relevant phrase considered in the David Grant case [David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265; [1995] HCA 43]. In that case, the phrase was that an application "may only be made" within the relevant period of 21 days. 80 Following the approach of the High Court in the David Grant case, we are required to consider whether the phrase "may not bring" is to be construed prohibitively or only conditionally prohibitively in the sense that an application brought outside the relevant time may not be brought unless the Tribunal extends time. The provisions of s 106(5) and (6) are to be read together, and the right to bring the action under s 106(5) is available only if brought within the time required by s 106(6). To use the language of the High Court in the David Grant case, the time limit in s 106(6) is an integer or element of the right created by s 106(5). The phrase "may not bring" defines the scope of the cause of action and thus precludes the Tribunal from having jurisdiction to apply s 41 to the question of an extension of time. … 100 We are of the opinion that we are able to and should depart from the decision in Hua Nan for the following reasons: (1) It is our respectful view that it (i.e. Hua Nan) is wrong in its interpretation of s 106 (particularly s 106(6)) and the relationship of that section to s 41. The Appeal Panel in Hua Nan did not consider s 35 of the NCAT Act. That section would have no work to do with respect to its reference to enabling legislation were the reasoning in Hua Nan to prevail. (2) It is not apparent that the Appeal Panel in Hua Nan had the benefit of prehearing written submissions on the issue of whether s 41 could extend time in the circumstances of that case. The Appellant was not legally represented and it is not clear from the decision that the Respondents addressed the issue by the preparation of prehearing written submissions. (3) The Appeal Panel in Hua Nan did not have the benefit of the views of the Court of Appeal in Tezel [The Owners – Strata Plan No 74232 v Tezel [2023] NSWCA 35] in which Mitchelmore JA said that the statutory right to recovery under s 106(5) is "circumscribed" by s 106(6). (4) Nor did the Appeal Panel in Hua Nan consider, as did Mitchelmore JA, the broader interests of lot owners for whom it could be said that the two year period was directed at ensuring that a lot owner cannot delay taking proceedings because to do so may affect the ability of other lot owners to recover from the lot owners owning lots at the relevant time when the breach by the Owners Corporation occurred. (5) If it be the case, as the Respondent contends, that we should not depart from the decision in Hua Nan unless we are of the view that that decision is "plainly wrong" and that there are compelling reasons to depart from that Appeal Panel decision, we are satisfied that those requirements are met. We are respectfully of the opinion that the Hua Nan decision is plainly wrong and that the decision can or might lead to uncertainty adverse to the interests of other lot owners were it the case that the time limit in s 106(6) is open to the possibility of being extended. 1. I agree with the reasoning of the Appeal Panel in Pickard and conclude that s 41 of the NCAT Act does not confer upon the Tribunal power to extend time for the commencement of proceedings under s 106(5) of the SSMA. In my view that result is mandated by the decisions of the High Court and the Court of Appeal referred to by the Appeal Panel in the above extracts from Pickard, that is: David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265; [1995] HCA 43 and; The Owners – Strata Plan No 74232 v Tezel [2023] NSWCA 35 (Tezel). It is also supported by the decision of Basten AJ in Kaye v Owners Strata Plan 4350 [2022] NSWSC 1386 to which the Appeal Panel in Pickard also referred. 2. Against the possibility that my conclusion regarding the question whether the Tribunal has the power to extend time for the commencement of proceedings under s 106(5) of the SSMA is incorrect, I will consider whether, if I had power to extend time, I would exercise that power. 3. The considerations relevant to an application for an extension of time pursuant to s 41 of the NCAT Act were set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22] as follows: "22 The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59]." 1. Although expressed in the context of the grant of an extension of time for the filing of a notice of appeal, those principles also govern the application of s 41 of the NCAT Act in other contexts. 2. The applicant's explanation for the delay in commencing the proceedings seeking compensation for the loss of rent was: 1. The strata committee of the respondent had agreed in December 2021 to carry out "all the required and necessary repair needs of lot 5." The applicant maintained that the respondent had failed to fulfil that undertaking. 2. That the applicant was inhibited in taking steps to commence the proceedings by her medical condition. The applicant's submissions and the medical evidence included in her bundle indicated that the applicant had been receiving treatment for a serious medical condition during the period 2018 to 2020. The evidence does not indicate anything about the applicant's medical condition during the period from 2020 to 2023. 1. Neither matter raised by the applicant provides any real explanation for the delay in commencing proceedings between 2020 and 2023. 2. On the applicant's own case the applicant's loss of rent commenced in January 2019, and thus the delay in commencing proceedings was over four years, that is more than two years beyond the time within which s 106(6) of the SSMA required proceedings to be commenced. That delay is significant. 3. The respondent did not suggest it would suffer any prejudice arising from the delay in the commencement of the proceedings, beyond a potential liability for compensation. However, it must be recognised, as the Appeal Panel observed in Pickard at [93], referring to the judgment of Mitchelmore JA in Tezel: "93 … that the period of two years is a "relatively short limitation period" which reflects the broader interests of lot owners constituting the owners corporation as the body that will have to make good any reasonably foreseeable loss a lot owner is found to have suffered as a result of its contravention [and] … that the two-year period was directed at ensuring that a lot owner cannot delay taking proceedings in circumstances where the people having to make good the loss are also lot owners, and the passage of time may affect their ability, through the owners corporation, to recover that loss from other persons." 1. The applicant provided very little evidence to support her claim to loss of rent. The evidence identified by the applicant in her 5 January 2024 document consisted of: 1. A rent ledger from 2015 2. Rental appraisals dated 26 May 2021 and 11 December 2021; 3. Invoices from Flatmate Finders and Gumtree dated 29 May 2022 and flatmates.com.au and realestate.com.au dated 2 June 2022; 4. International movement records showing the applicant was overseas for a substantial period between 17 August 2018 and 25 May 2021; 5. Copies of advertisements on Gumtree in January, February and May 2019 and June 2022; and 6. Message logbooks from Gumtree from 2019 and 2022 which show there were communications to the applicant regarding the advertisements but record no information concerning the content of those communications. 1. The applicant's bundle also included a statement from the applicant, to the effect that, in early 2021, the applicant was overseas and "due to unexpected delay on return to Sydney I attempted to rent out the property, however due to the defective condition of the property it was not successful even at the reduced rental rate." 2. As the respondent submitted: "27… Insofar as the applicant seeks reimbursement for alleged loss of rent, she has supplied the tribunal with no materials connecting the alleged disrepair of the common property to any difficulty renting the premises." And: "29… The applicant has not presented evidence that is reliable, persuasive, or cogent. Further, she has not provided a single supporting photograph or document evidencing a person's refusal to rent the premises on account of the disrepair of the common property." 1. It is apparent that the applicant's claim for loss of rent, even if she were permitted to pursue it, would be tenuous at best. 2. As the extension of time sought is considerable, the explanation for the delay is unsatisfactory, and the appellant's claim for loss of rent has little apparent merit, I would not, even if empowered to do so, have extended time for the filing of an application for compensation for lost rent. 5. Compensation for expenses incurred "due to the disrepair of common property" 1. The applicant outlined this claim in paragraph 30 on page 7 of her bundle: "30. The unreasonable delay in the Respondent investigating and acting to repair damage to the common property as hereinbefore described and as further described hereunder has caused the Applicant to pay invoices in sum of $6,118.72 (Owner Invoices) consisting of the following, for which she claims reimbursement: a. Mould cleaning $935 on 11 March 2022 …; b. Accommodation $690.82 …; c. Building inspection report $350 on 10 July 2020 ... d. Damaged vanity invoice of $1 ,643 on 18 Jan 2017 ... e. Damaged Doors and locks of $1 ,080 on 19 Jan 2017 ... f. Noise investigation report $1 ,320.90 on 5 Dec 2022 … g. Car wash $99 on 21 Jan 2023 … . 1. The respondent submitted that the costs identified in sub-paragraphs (c), (d) and (e) were all incurred more than two years prior to the commencement of the proceedings and that therefore the applicant's claim in respect of those items was barred by s 106(6) of the SSMA. 2. In respect of sub-paragraph (b), Mr Powys submitted that there was no explanation in the applicant's evidence of the circumstances in which she came to incur costs for hotel accommodation. 3. The applicant included in her bundle invoices totalling $690.82 in respect of hotel accommodation from 4 March 2022 to 9 March 2022. 4. The applicant's bundle also included a report from Eastern Suburbs Emergency Plumbing dated 1 March 2022 which recorded: "We attended site to investigate the numerous areas of mould in the apartment. There is a lot of surface mould in every room which I believe is there due to a lack of sunlight and ventilation which is quite common in ground floor rear facing areas." 1. The report also indicated that the plumber had identified three areas of moisture damage: a vent pipe above the ceiling outside the bathroom, which was rectified on the day as a matter of urgency; a wet external brick wall, which was identified as being a consequence of seepage from the balcony above; and water damage and paint bubbling on internal walls in the lounge room and bedroom, which was said to be a result of failure of the waterproofing membrane on the balcony. The last issue was rectified by the replacement of a layer of tiles, as is noted in Mr Kavanagh's report. 2. Regardless that it is apparent that there was some work carried out in relation to water ingress in March 2022, the applicant's evidence does not provide any explanation why it was seen to be necessary for the applicant to vacate the apartment between 4 and 9 March 2022. In her original application the applicant stated that she was "unable to live in the apartment" during the repairs carried out in March 2022, but that does not explain why work which, as described by the applicant to Mr Kavanagh, involved the removal of a row of tiles in the courtyard and the application of a waterproof membrane, made the apartment uninhabitable. (I note that the respondent's evidence included an invoice for work of that description dated 17 February 2023. This discrepancy was not explained either in evidence or submissions.) I am not satisfied on the balance of probabilities that the applicant's expenditure on hotels in March 2022 was a foreseeable consequence of any failure of the respondent to repair and maintain the common property. 3. The noise investigation report referred to in sub-paragraph (f) is the AUS Covert Investigations report dated 5 December 2022 to which I have referred above. I am not persuaded that expenditure of over $1,000 on having the applicant's apartment swept for listening devices was a reasonably foreseeable consequence of the respondent's failure to repair and maintain the common property so as to eliminate the noise of which the applicant has complained. 4. The respondent submitted that there was no evidence to link any expenditure by the applicant on washing her car in January 2023, as claimed by the applicant in sub-paragraph (g), to any failure by the owners corporation to repair and maintain common property. 5. I accept the respondent's submissions in respect of sub-paragraphs (b) to (g) of the applicant's claim 5. I find that items (c), (d) and (e) are barred by s 106(6) of the SSMA, that the applicant has failed to provide evidence to link items (b) and (g) to any failure on the part of the respondent to repair and maintain common property, and that the noise investigation report the subject of item (f) was not a foreseeable consequence of any failure to repair and maintain common property. 6. It remains to address sub-paragraph (a). 7. The applicant included in her evidence an invoice from The Mould Doctor dated 1 March 2022 in the amount of $935 for: "Remove all visible mould, micro clean and sanitise the affected areas. Complete a decontamination fogging of all internal living areas to eliminate airborne mould spore and other bacteria." 1. I accept that the need to undertake mould cleaning is a reasonably foreseeable consequence of a failure to repair and maintain common property so as to prevent water ingress through the common property into the applicant's lot. The expenditure was incurred within two years before the commencement of the proceedings. I find that the respondent is liable to pay the applicant the sum of $935 in respect of the mould treatment of her apartment in March 2022. 6. Replacement of floorboards or compensation for the cost of replacing floorboards 1. The applicant included in her evidence an email dated 4 March 2023 from Back to Timber Flooring Centre which states: "Upon yesterday's inspection, we found the existing floorboard in your unit (living room +2 bedrooms) has very bad water damage (potentially caused by water ingress and water leaks through underneath of the floorboards) and we recommend to remove the existing timber urgently, also professional subfloor cleaning service is required in order to clean all the mould and bacteria underneath. After conduct the subfloor cleaning, new floorboards need to be installed." 1. Attached to that email was a quotation for the supply and installation of an engineered timber floor with "5 Star Acoustic Underlay" and the removal and disposal of the existing floating floor in the amount of $14,749 inclusive of GST. Included in the quoted price was an amount of $3,800 before GST (ie $4,180 inclusive of GST) for "floor levelling". There is not in the email or the quotation any explanation why "floor levelling" was necessary. 2. There is no direct evidence included in either party's evidence of when the applicant became aware of the damage to the floorboards. 3. The applicant's bundle included an email from the applicant to the respondent's strata manager, dated 2 March 2022, which included the following: "Further to the inspection reports please find the attached photos where the floorboard was rotted and moulded due to water ingress from the courtyard and caused the damages. The floorboard requires a replacement, please arrange a tradesperson for a replacement soon, otherwise I will have to arrange the replacement and invoice you accordingly." 1. The applicant also pointed to a report prepared at her instruction by Pink Inspection Services in July 2020 which recorded the existence of dampness and mould in ceilings and internal walls but stated, under the heading "Floors": "The condition of the floors is generally fair. Stored goods restricted inspection of the area. Defects may be present and not detected." 1. The respondent's written submissions concerning the applicant's claim for the replacement of her floating floor were: "31. Turning then to the cost of replacing the Applicant's floorboards, and notwithstanding that, this aspect of the claim should fail due to being commenced out of time and want of appropriate evidence, the Tribunal should refuse the relief sought because the subject floorboards were installed without the approval of the owners corporation. 32. Both lay and expert evidence relied upon by the owners corporation in these proceedings establishes that the floorboards throughout the Premises were installed without authorisation, which was required under the SSMA. 33. It would follow that the owners corporation cannot be deemed responsible for parts of the Premises that do not form part of the original layout. The owners corporation holds an immediate duty to reinstate common property that has been removed or altered without authorization but this does not apply to the Applicant's floorboards, which do not form part of the building's original fabric." 1. It appears to me that those submissions are misdirected. It is not in dispute that the timber floors within the applicant's lot are not common property. The applicant does not seek damages or the replacement of the floors on the basis that the respondent has an obligation pursuant to s 106(1) of the SSMA to repair and maintain the timber floor. The applicant's claim is maintained pursuant to s 106(5) on the basis that the damage to the floors was a reasonably foreseeable loss suffered by the applicant as a result of the respondent's failure to repair and maintain the common property. 2. In oral submissions Mr Powys relied upon statements made by the applicant in her application: "2 The applicant noted mould appearing in Lot 5 … from around the end of 2016. The mould was initially located on the edge of the main bedroom ceiling. … 4 The applicant reported the apparent water leak issue to the strata manager on or about 16 December 2016 by email, but investigation did not take place until 5 May 2017 when the Respondent sent a plumber to Lot 5 and Lot 11. … 8 The Respondent (via the strata manager) refused to investigate further and insisted that the invoice of the initial investigation be paid by the Applicant. 9 The mould in Lot 5 has since spread across the majority of the premises, causing damage to the internal surfaces and floor." 1. Mr Powys cross-examined the applicant to establish that the timber floor had been installed in 2016 without approval by the respondent and also sought to suggest to the applicant that the mould was a consequence of inadequate ventilation of the unit. In putting that proposition to the applicant, Mr Powys referred to documents (at pages 9 and 68 of the applicant's bundle) which suggested two different plumbers, Mc Elroy Plumbing and Eastern Suburbs Emergency Plumbing, had attributed the mould in the unit to inadequate ventilation. 2. Mr Powys submitted that the onus lay upon the applicant to establish that her claim is within the time limit imposed by s 106(6) of the SSMA, and that the applicant has not, and cannot, establish the date that she became aware of the relevant loss, that is the damage to the floorboards. 3. I accept that the evidence does establish that the wooden floating floorboards in the applicant's lot have been damaged by water ingress, including by mould resulting from damp conditions caused by water ingress. I do not accept that the mould was the result of a lack of ventilation. The IBEC report suggests that the installation of a membrane at the base of the walls in the courtyard has cured the moisture issue previously observed. I also accept on the basis of the email from Back to Timber Flooring Centre that the floors are damaged beyond repair and must be replaced. The respondent led no evidence to suggest either that the floors are not damaged beyond repair or that the damage identified was not a consequence of the water ingress through the base of the external walls which was treated by the installation of a waterproof membrane. 4. The applicant suffered loss by reason of the respondent's failure to repair and maintain the common property so as to prevent water ingress into Lot 5 when the floorboards were damaged by water ingress or mould arising from water ingress. Damage to fittings within a lot, whether directly or by the propagation of mould, is a foreseeable consequence of a failure to prevent water ingress. 5. However, time began to run for the purposes of s 106(6) of the SSMA when the applicant became aware of the loss, that is when the applicant became aware that her floors had been damaged by water ingress or mould consequent upon water ingress. 6. I accept the respondent's submission that the onus lies upon the applicant to establish that her application is brought within time. 7. However, I am satisfied on the evidence before me that the applicant was not aware of the damage to the floor as at 23 September 2021 (that is two years before the application was lodged). The respondent does not point to any communication from the applicant before the email of 2 March 2022 which suggests that the applicant was aware of damage to the timber floors. The nature and frequency of the correspondence from the applicant to the strata manager included in the evidence indicates that the applicant was quick to raise issues with the strata manager as soon as they arose. The email of 2 March 2022 is written in terms which suggests the applicant had only just become aware of the damage to the floor. 8. Accordingly, the applicant's claim for compensation for the damage to her floor is not barred by s 106(6) of the SSMA. 9. I do not consider that the fact that the floors may have been installed without the written approval of the respondent is a bar to the applicant recovering compensation. 10. If there were reason to believe that, if the floating floors had not been damaged, the applicant would have been required to remove them because they had been installed without approval, the applicant might not be able to establish that she has suffered loss through the damage to those floors. However, there is no reason on the evidence before me so to believe. 11. There is no suggestion in the evidence that the officers of the respondent were not aware that floating floors had been installed in the applicant's lot. There is no suggestion in the evidence that there was any prospect that the respondent might have required the applicant to remove the floors if they had not been damaged. 12. Moreover, the applicant's unit is on the ground floor of the building. There are two levels of car parking under the applicant's lot, but no residential space. Accordingly, the issues of noise transmission affecting other residents living under the hard floors, which might justify the refusal of approval to the installation of floating timber floors on a higher level of the building, are not present. 13. Even if the respondent did not consent to the installation of the floating floors, s 126(1) of the SSMA empowers the Tribunal to order an owners corporation to consent to minor renovations (which includes the installation of floating floors) "if the Tribunal considers that the owners corporation has unreasonably refused its consent". 14. I do not purport to determine on this application that a refusal of consent to the installation of floating timber floors in the applicant's lot would be unreasonable, but there is nothing in the evidence before me to suggest that the respondent would have any reasonable basis to refuse consent. 15. For the foregoing reasons I am satisfied that the applicant is entitled to compensation for the cost of replacing the floating timber floors in her lot. It would not be appropriate to direct the respondent to replace the floors, given that the applicant does not presently have consent to install floating timber floors and must obtain the approval of the respondent in accordance with the requirements of the SSMA before installing any replacement timber floors. 16. The quotation from Back to Timber Flooring Centre is evidence of the cost of replacement of the floors, including the removal of the existing floors. The previous floors had been installed in 2016, but there is nothing in the evidence before me to suggest that they were not in good condition before being damaged by the water ingress. I do not consider it is appropriate to discount the cost of replacement by reference to any amount of depreciation. The value to the applicant of the floors which have been ruined by the water ingress may fairly be measured by the cost of replacing them. 17. As noted above, there is nothing in the quotation or elsewhere in the evidence to explain why the quotation includes $4,180 for "Floor Leveling". I am not satisfied that any requirement for floor levelling is a reasonably foreseeable consequence of the respondent's failure to maintain and repair the common property. 18. Accordingly, I will deduct $4,180 from the quotation from Back to Timber Flooring Centre, which leaves $10,569. I will order the respondent to pay that sum to the applicant. 19. The applicant also sought orders that the respondent undertake, or pay the cost of, mould treatment once the existing floors have been removed. The order regarding mould treatment to which the respondent has consented, as addressed under order 2 (at [22] above), extends to "any instances of mould identified throughout Lot 5". That will extend to mould exposed by the removal of the floorboards. 7. Declaration that the applicant does not owe money to the respondent 1. The applicant claimed that she and the respondent had reached an agreement in 2021 reconciling the amount which the respondent claimed the applicant owed and the amounts the applicant claimed to have paid. The applicant claims that the respondent had not kept to that agreement. 2. The respondent submitted that the applicant had not identified any source of power in the Tribunal to make the order sought and further submitted that the applicant had not provided evidence to establish the underlying proposition that the applicant had paid all levies owing. 3. The respondent noted the terms of s 87 of the SSMA which empowers the Tribunal to make an order varying the amount of any levy or proposed levy if "the Tribunal considers that [the] amount levied or proposed to be levied … is inadequate or excessive". The respondent submitted that the applicant had tendered no evidence to establish that the amount of any levy was excessive. 4. Clearly s 87 is not a source of power to make the order sought by the applicant. That provision is directed to the whole of an amount levied, that is the amount charged to all lot owners, not a dispute about whether a particular lot owner does or does not presently owe levies to an owners corporation. 5. The Tribunal does not have a general power to make declaratory orders: Walsh v The Owners – Strata Plan No 10349 [2017] NSWCATAP 230 at [58] – [61]. 6. Section 86 of the SSMA permits the Tribunal, when proceedings are pending in the Tribunal between a lot owner and an owners corporation, to order the lot owner to pay a contribution (ie levy) that is unpaid at the end of one month after it falls due. However, such an order may be made only on the application of the owners corporation and no such application has been made by the respondent in these proceedings. 7. I accept the respondent's submission that the Tribunal has no power to make the order sought by the applicant and I decline to do so. 8. I also note, for completeness, that I also accept the respondent's submission that the applicant has failed to put forward evidence capable of establishing the proposition that she does not owe any amount to the respondent, or the proposition that an amount included in the levy notice issued to the applicant on 18 August 2023, which the applicant did include in her bundle, is not due and payable. 8. Interest on amounts awarded by way of compensation 1. There is no provision in the NCAT Act or the rules made under that Act, or in the SSMA, empowering the Tribunal to award interest on amounts awarded by the Tribunal by way of compensation: Treadgold-Svir v Dynamik Constructions Pty Ltd [2023] NSWCATAP 216 at [109] – [113]; Di Rico v Cominos [2015] NSWCATCD 75 at [145] – [146]. 2. The only basis upon which the applicant might recover interest on amounts awarded by way of compensation would be that such interest was itself a reasonably foreseeable loss suffered by the applicant by reason of the respondent's breach of s 106 of the SSMA. The incurring of interest expenses in respect of loan accounts, which would have been reduced by payments made from rent received if premises had been able to be let, is, to the extent the interest expenses would have been reduced if the rental payments had been received, potentially a foreseeable loss arising from the inability to rent the premises: see Hungerfords v Walker (1989) 171 CLR 125; [1989] HCA 8. 3. However, to recover such losses it would be necessary to lead evidence of the relevant loan accounts and the applicable interest rate and to establish the extent to which rental payments received in respect of the premises would have been paid into those accounts. The applicant included in her bundle evidence of the interest rates payable on loan accounts with the National Australia Bank between 2016 and February 2022 and St George Bank from December 2022 to November 2023 but otherwise led no evidence concerning any of those matters. 4. In any event, the applicant has not established any entitlement to compensation for lost rent. 5. Of the amounts which I have determined should be paid to the applicant, the amount awarded in respect of the replacement of the floors does not reflect a cost that has been incurred by the applicant and therefore the applicant has suffered no loss arising from the loss of use of that money. The applicant has led no evidence to suggest that she has suffered any loss arising from the loss of use of the money paid to the Mould Doctor for the mould treatment in 2022. 6. For the foregoing reasons, the applicant's claim to the payment of interest is dismissed. 9. Replacement of damaged screen doors 1. The applicant claims that the screen door to her unit was damaged in attempted break-ins in 2016 and 2017. The applicant submits that s 106(2) of the SSMA requires the respondent to repair or replace the screen door. 2. Mr Powys submitted that the screen doors were not common property. 3. The applicant could not point to any evidence to establish that the screen doors were common property. She stated that not all units had screen doors, which might be thought to suggest that those installed on the applicant's lot are not common property. 4. The applicant's bundle did include emails between the applicant and the strata manager in which the strata manager appeared to accept responsibility for repairing the screen doors, but that is not evidence that the screen doors are common property. The strata manager has no authority to make admissions on behalf of the respondent. Nor does the strata manager have authority to cause the respondent to acquire as common property that which is not common property. 5. The acquisition of common property by an owners corporation is regulated by s 108 of the SSMA, which requires a measure of formality not achieved by a communication from a strata managing agent. 6. Accordingly, I decline to make any order in respect of the damaged screen doors. Costs 1. The applicant has had some measure of success, but has failed in respect of the most substantial issue raised in the proceedings. 2. The amount claimed by the applicant in the proceedings exceeded $30,000, and therefore, by virtue of rule 38 of the Civil and Administrative Tribunal Rules 2014 (NSW), special circumstances are not necessary before I may make an order for costs. 3. The parties sought the opportunity to make submissions on costs following the delivery of my decision on the substantive application and agreed that any questions of costs could be determined on the basis of written submissions and without a further hearing. 4. I will make directions for the filing of submissions in relation to any question of costs arising in the proceedings. To the extent any party seeking costs seeks an order fixing those costs, the submissions should be accompanied by sufficient evidence to enable the assessment of the appropriate amount of costs. ORDERS 1. My orders are: 1. The respondent, The Owners – Strata Plan No 61321 is to employ appropriately licensed and qualified tradespersons or contractors to carry out the following work in a proper and workmanlike manner using suitable new materials and in accordance with all relevant laws, rules and regulations, within three months of the date of these orders: 1. The work in relation to Lot 5 in Strata Plan No 61321 (Lot 5) identified in the third to sixth, eighth and ninth bullet points in paragraph 10.1.12 of the report of Mr Kavanagh of Integrated Building and Engineering Consultancy dated 25 September 2023 (the IBEC Report); 2. Treat any instances of mould identified in Lot 5, including in areas presently covered by floating timber floors provided the applicant has previously arranged the removal of the floors; 3. The work identified as Option 1 in paragraph 10.1.22 of the IBEC Report (the Option 1 work); 4. Replace the air brick missing from the courtyard of Lot 5; 5. Ensure that no rodents or other pests remain in any ventilation space adjacent to Lot 5. 1. Upon completion of the Option 1 work, the respondent is to arrange a test (the Option 1 test) to be carried out by a suitably qualified plumber or waterproofing contractor to determine whether the Option 1 work has been effective in preventing leakage of water into Lot 5 from the balcony of Lot 11. 2. If the Option 1 test shows that the Option 1 work has not been effective in preventing leakage of water into Lot 5 from the balcony of Lot 11, the respondent must employ appropriately licensed and qualified tradespersons or contractors to carry out, in a proper and workmanlike manner using suitable new materials and in accordance with all relevant laws, rules and regulations, within a further two months, the work identified as Option 2 in paragraph 10.1.22 of the IBEC Report (the Option 2 work). 3. At the respondent's election, it may carry out the Option 2 work, without carrying out the Option 1 work, within three months of the date of these orders. 4. The respondent, The Owners – Strata Plan No 61321, must pay the applicant, Jade Y Hsueh, the sum of $11,504 (being $935 reimbursement of mould treatment costs and $10,569 in respect of damage to her floating timber floors) within 30 days of the date of these orders. 5. The application is otherwise dismissed. 6. Unless either party files submissions in accordance with order (8) below, there will be no order in relation to the costs of the proceedings. 7. If either party seeks an order in relation to the costs of the proceedings, they may file, and serve upon the other party, submissions of no more than five pages, with any evidence in support, within 14 days of the publication of these orders. 8. If a party files and serves submissions pursuant to Order (8) above, the other party may file and serve submissions in response of no more than five pages, with any evidence in support, within a further 14 days. 9. Submissions in reply to submissions filed and served pursuant to Order (9) above, of no more than three pages, may be filed and served within a further 7 days. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 December 2024