Thadani v Owners Corporation Strata Plan 46619 [2015] NSWCATCD 153

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Thadani v Owners Corporation Strata Plan 46619 [2015] NSWCATCD 153 Hearing dates: 2 October 2015 Decision date: 10 December 2015 Jurisdiction: Consumer and Commercial Division Before: Senior Member Meadows Decision: 1. The respondent is to pay a pecuniary penalty of $5,500.00 to: Department of Finance & Services, c/- Specialist Services,NSW Fair Trading, P O Box 4004, Penrith Plaza NSW 2750 no later than 28 days after the date of these orders.

2 The parties are to provide written submissions in relation to whether it is appropriate to make an order for costs pursuant to s 204 of the SSM Act no later than 14 days after the date of these orders. Any written submissions in reply should be provided no later than 28 days after the date of these orders. The decision on costs will be made on the papers. Legislation Cited: Civil and Administrative Tribunal Act 2013 Consumer Trader and Tenancy Tribunal Act 2001 Strata Plan Management Act 1996 Category: Principal judgment Parties: Aparna and Dinesh Thadani—applicants; Owners Corporation Strata Plan 46619—respondent File Number(s): SCS 14/48763 Publication restriction: Nil

reasons for DECISION

Application 1. This is an application for the imposition of a civil penalty in which the applicants, owners and residents in the subject strata scheme, allege the respondent Owners Corporation failed to comply with orders in relation to rectification works on or in common property affecting the applicants' premises. 2. This dispute between these parties, involving a number of Tribunal proceedings, has continued since 2010. In this decision, although it will be necessary to refer to some elements of the ongoing dispute, I am limited to a consideration of the application for the imposition of a civil penalty pursuant to s 202 of the Strata Schemes Management Act 1996 (SSM Act) and for a costs order pursuant to s 204 of that Act. 3. The applicants have lived in Lot 3 in the scheme since about March 2010. In May 2010 the applicants became aware of severe water ingress affecting their living room carpet adjacent to the sliding doors leading onto their balcony. They reported this problem to the then strata manager. Although initially there were other suggested causes of the water ingress, it has subsequently become clear, and was accepted by both parties, that the water was entering through the external wall between the applicants' living room and their balcony, involving also the double set of sliding doors set in aluminium frames. It is also accepted by both parties that the wall, the doors and the tiled floor of the balcony are all common property. The Owners Corporation is therefore responsible for repairs and maintenance of those items—that is also accepted by both parties. 4. There then followed a lengthy sequence of events in which the Owners Corporation, at first rejecting the applicants' explanation for the water ingress and even after further investigations were performed also apparently refusing to accept various quotations for possible repair of the defective water proofing, refused to accept they were responsible for the necessary repairs to common property. 5. However, in about December 2011 the Owners Corporation resolved to employ RHM Consultants to conduct an investigation, apparently intended to be the basis for obtaining further quotations. The RHM report was received in or about January 2012 and opined that the source of the water ingress was in relation to deficiencies in the sill flashing to the aluminium frames of the sliding doors and the cavity flashings along the base of the external masonry wall in which those frames were set, that is, the wall between the applicants' living room and their balcony. However, no work was actually done to rectify the problem. 6. Finally, in about May 2012, the applicants filed an application for Adjudicator's Orders seeking, inter alia, that the Owners Corporation effect repairs to common property in accordance with one of the two quotations received previously by the Owners Corporation. 7. On 21 September 2012, Adjudicator Howe ordered, inter alia, that: "2. The Owners Corporation is to immediately carry out repairs to the common property on the balcony of Lot 3 in order to prevent water ingress into that Lot." 1. The applicants filed an Appeal against the Adjudicator's orders or some of them, and in about May 2013 (before the Appeal was heard) the parties reached an agreement that further quotations would be obtained by each party, the "middle" one of those quotations would be accepted and once the original Adjudication orders were complied with in relation to the repairs, the applicants (then the appellants) would withdraw their appeal. 2. The agreement referred to in the previous paragraph was reflected in orders made by Senior Member Thode on 01 May 2013 in the appeal proceedings, SCS 12/51639. Those orders provided, in accordance with the agreement, for the procedure for obtaining and selecting a contractor and for the scope of the works or at least the nature of the works to be agreed by adopting the RHM Building Diagnostic report (that is, the first RHM report, not, obviously, the report of February 2014). 3. It appears then that rectification works were performed by BR Building Services. The applicants assert the repairs were not successful. They also assert that the Owners Corporation, through the Secretary of the executive committee Mr Jimmy Feng, then purported to commence or to propose to commence, legal proceedings seeking to recover the costs of those repairs from the applicants, in the amount of $12,780.00. 4. It appears that the next development was that in February 2014 the applicants were advised that BR Building Services were intending to remove the sliding door frames in order to investigate the source of the water ingress. The applicants then requested that RHM Consultants take advantage of that work to conduct a further inspection and provide a report of the leak problem. In the RHM report of 28 February 2014, Mr Peter Le, a senior engineer and consultant employed by RHM Building Diagnostic Services, stated that deficiencies in the cavity flashing is the primary source of the water ingress and that BR Building Services did not perform the recommended scope of the works in its quotation. 5. The applicants corresponded further with the Owners Corporation through the strata manager, but, as they assert, received no or no satisfactory response. The applicants claim the water ingress continues. 6. This application was then filed on 29 September 2014.