John Goubran & Associates Pty Ltd ACN 070 974 819 v The Owners – Strata Plan 57150

Medium Neutral Citation: John Goubran & Associates Pty Ltd ACN 070 974 819 v The Owners – Strata Plan 57150 [2026] NSWDC 9

Hearing dates: 10 – 11 November 2025

Date of orders: 25 February 2026

Decision date: 25 February 2026

Jurisdiction: Civil

Before: Cole DCJ

Decision: Judgment for the plaintiff in the sum of $61,880.

Catchwords: NEGLIGENCE — Breach — Standard of care – unit in a strata scheme suffered damage from water ingress caused by the failure of waterproofing of the balcony of the unit above - owners corporations duty – calculation of loss
STRATA SCHEMES MANAGEMENT ACT 2015 – claim of breach of statutory duty under s 106(6) – time limit for bringing of proceedings increased from two years to six years on 30 June 2025 – which time limit applies

Legislation Cited: Strata Schemes Development Act 2015 (NSW)
Strata Schemes Legislation Amendment Act 2025 (NSW)
Strata Schemes Management Act 2015 (NSW)

Cases Cited: Rodway v R [1990] HCA 19; (1990) 169 CLR 515
The Owners - Strata Plan No 74232 v Tezel [2023] NSWCA 35

Category: Principal judgment

Parties: John Goubran & Associates Pty Ltd ACN 070 974 819 (Plaintiff)
The Owners – Strata Plan 57150 (Defendant)

Representation: Counsel:
R McCaw (Plaintiff)
Solicitors:
Shohmelian Legal (Plaintiff)
Bannermans Lawyers (Defendant)

File Number(s): 2023/450216

Publication restriction: Nil

JUDGMENT

1. The plaintiff, John Goubran & Associates Pty Ltd (JG&A), owns an apartment, which I will refer to as No 7, in a four-storey apartment building in Burwood, New South Wales (‘the building’). No 7 is on the third floor of the apartment building and is located directly below No 12, which is on the fourth floor. Mr John Goubran is a director of JG&A.

2. The defendant, The Owners – Strata Plan 57750 (‘the owners corporation’) is the owners corporation which has the responsibility for the management of the strata scheme (‘the scheme’) under the Strata Schemes Management Act 2015 (NSW) (‘the Act'). The scheme comprises two buildings with 24 lots in total.

3. JG&A alleges, in its amended statement of claim, that, from about September 2021, water was observed to be leaking into No 7, mostly during periods of heavy rain. Subsequently, cracking was observed in No 7. It is alleged that the issue was reported to the manager of the owners corporation on 21 November 2021.

4. A building report dated 4 April 2022 was obtained by the owners corporation from Landlay. The building report identified that the waterproofing on the balcony of No 12 had failed. The waterproofing on other balconies in the apartment building had also failed. A scope of works dated 26 July 2022 provided for the re-waterproofing of the balcony of No 12 (and others).

5. JG&A alleges, in its amended statement of claim, that the owners corporation did not cause the work required for the re-waterproofing of the balcony of No 12 to begin until 9 July 2024. The work was completed on 18 December 2024.

6. JG&A alleges that it was unable to rent out No 7 from 14 December 2021 to 23 January 2024. It rented No 7 from 23 January 2024, continuing past 18 December 2024, at $700 per week, and alleges that the rent would have been higher had the waterproofing of No 12’s balcony been in place and functioning.

7. JG&A claims damages from the owners corporation for breach of its duties under the Act.

8. JG&A further claims that it suffered damage on account of the defendant’s negligence in failing to deal with the water ingress to No 7 without undue delay.

9. JG&A claim damages for the loss of rent from 14 December 2021 to 23 January 2024 in the amount of $750 per week and for the inability to obtain the rent that could have been obtained for the period from 23 January 2024 to 24 January 2025 which allegedly caused a loss of $50 per week.

10. The owners corporation, in its defence, does not admit liability.

Evidence

11. Evidence was given in the plaintiff’s case by Mr Goubran, whose affidavit of 31 October 2024 was read, and Mr Paul O’Donnell, a building expert, whose report of 28 October 2024 was tendered.

12. Evidence was given in the defendant’s case by Ms Colleen Silva, a strata manager employed by Neighbourly Strata, which, at all material times, was contracted to manage the strata scheme on behalf of the owners corporation.

Mr Goubran’s evidence

13. Mr Goubran’s evidence was that JG&A became the registered proprietor of No 7 on 2 October 1998.

14. Mr Goubran’s mother lived in No 7 until she died on 9 September 2021.

15. In his affidavit, Mr Goubran said that No 7 “began to suffer various heavy leaks with water coming into the Unit, particularly at times of heavy rain”.

16. In cross-examination, Mr Goubran said that he had seen some dampness in the ceiling prior to September 2021, but it was only when the furniture was removed and the carpet was lifted in September 2021 that he saw water pooling and realised it was water ingress into No 7. Mr Goubran said that dampness does not necessarily mean that water is entering the apartment.

17. Mr Goubran said that, despite the owners corporation being made aware of the leaks and the water ingress into No 7, no work was done “when the leaks became apparent”.

18. Mr Goubran said that No 7 became uninhabitable from around 1 October 2021, and he was unable to tenant it from that time.

19. In cross-examination, Mr Goubran agreed that he was aware that the owners corporation engaged a contractor to inspect the block of apartments. He was present in No 7 when the contractor inspected No 7 and he noticed that there was water pooling on the floor.

20. Mr Goubran said that he had a number of telephone conversations with the strata manager in 2022 about the water ingress into No 7. Mr Goubran also told the Chairman of the body corporate what was happening at No 7, because the Chairman lived in the apartment opposite No 7.

21. On 1 March 2022, Mr Goubran sent an email to Ms Silva which said:

Hi Coleen

To date we have not received any advise from you or the engineer’s [sic], please be advised today we had to remove the carpets and the kitchen due to water damage, could you please advise the engineers about the water damage and this matter should be dealt with urgently, as well you should inform the insurers as we will claim the costs and loss of rental.

Regards,

John Goubran.

22. Mr Goubran also sent photographs to the strata manager showing water pooling on the floor in No 7 and black staining of a ceiling and the wall under it. In cross-examination, Mr Goubran identified the room in the photographs as being situated under the balcony of No 12. Mr Goubran explained that the balcony of No 12 extended over two walls of No 7, as it turned the corner over the kitchen of No 7.

23. In February 2023, Mr Goubran instructed his lawyers to write to the strata manager to seek urgent rectification of the water ingress damage and compensation.

24. JG&A obtained a rental appraisal for No 7 in June 2023. Mr David Crawley, of LJ Hooker wrote a letter of 23 June 2023 which said, in relation to No 7, that he had appraised the property and:

I am of the opinion that the property would achieve a rental return of approximately $700.00 to $750.00 per week.

25. Mr Goubran provided a copy of the invoices for various repairs he caused to be undertaken to No 7. One of the invoices is dated 21 September 2023 and the other is dated 19 September 2023.

Mr O’Donnell

26. Mr O’Donnell is an independent expert building consultant. He prepared a report dated 28 October 2024 for JG&A.

27. In his report, Mr O’Donnell said that, at the time of his inspection of the apartment building, remedial work was being carried out by the owners corporation. He observed that the two verandahs of No 12 had the waterproof membrane tiles and sub-tile screed replaced. The brickwork under the No 12 balcony had had flashing and masonry removal and replacement repairs to ensure that no further leaking occurs.

28. Mr O’Donnell said, in his report, that each of the rooms of No 7 had experienced water ingress associated with the leaking verandah and the external dilapidated and failed flashing. Mr O’Donnell said that work had been undertaken to replace plasterboard, paint, repair wall skirtings and flooring in No 7. The kitchen was replaced. Mr O’Donnell observed this work after it had been completed.

29. It was Mr O’Donnell’s opinion that No 7, in its water affected state prior to the works, posed a health and safety risk to a tenant. He noted that the mould growth on the affected ceilings and walls, prior to the remedial works, was substantial. Photographs provided in Mr O’Donnell’s report substantiated his opinion.

30. Mr O’Donnell noted, from photographs, that it had been necessary to replace all of the carpet in No 7, noting that carpet is porous and water travels through it.

31. In a number of places in Mr O’Donnell’s report, he says that he was instructed that “the issue was first discovered in 2018”. In oral evidence Mr O’Donnell said that he was mistaken in the report, and his instructions were that the issue was discovered in 2021. Much was made, in the defendant’s case, of Mr O’Donnell’s repeated mention of 2018 in his report. Mr O’Donnell described the use of the date as a typographical error, which the defendant said should not be accepted. It seems to me that Mr O’Donnell wrote 2018 in his report because he misunderstood the history related to him on behalf of the plaintiff. “The issue” prior to September 2021 was staining to a ceiling, observed by Mr Goubran, the source of which had not been investigated. In September 2021, it was discovered that the issue was water ingress into No 7, which, by then, was the cause of the staining of the ceiling and walls and the cracking. Mr O’Donnell simply, wrongly, conflated the two events. There is no direct evidence to the contrary.

Ms Silva

32. An affidavit of Ms Silva dated 8 May 2025 was read in the defendant’s case.

33. In her affidavit, Ms Silva said that Neighbourly Strata became the manager of the scheme for the owners corporation in or around May 2020.

34. Ms Silva became the strata managing agent on 22 November 2021. At the time that she swore her affidavit, Ms Silva had access to all of the records in relation to the management of the scheme, and the day to day carriage of issues relating to the scheme. Ms Silva left her position as strata manager for the scheme in August 2025.

35. Ms Silva said that Mr Goubran reported cracks in No 7 on 21 November 2021. The following day, Ms Silva issued a work order to a contractor to investigate the cracks. The contractor recommended that the opinion of an engineer be obtained. Ms Silva arranged to get fee proposals from suitably qualified engineers to investigate the cracks.

36. Fee proposals were received on 8 and 13 December 2021. One of the fee proposals was from Landlay Consulting Group Pty Ltd (‘Landlay’). Ms Silva provided copies of the fee proposals to the strata committee of the owners corporation.

37. On 16 January 2022, the strata committee instructed Ms Silva to engage Landlay to inspect No 7 and investigate the cause of the cracking. At the same time, the owners corporation instructed Landlay to undertake an assessment of the potential cracking and internal water penetration to all units within the scheme. Landlay inspected the apartments on 8 February 2022. On 4 April 2022, Landlay produced a report which indicated that the scheme had pervasive water ingress issues and recommended that all of the balconies within the scheme be re-waterproofed.

38. The Landlay report said that No 7 had suffered water penetration to the interior of the living room, causing water damage. Cracking throughout No 7 was noted, including cracking in the living room and kitchen. The report said that the cracking resulted from the failed waterproofing membrane of the balcony of No 12.

39. Ms Silva acknowledged, in cross-examination, that Mr Goubran sent her the email of 1 March 2022 set out at [21] above, and, on 2 March 2022, emailed her photographs of some of the water damage at No 7 with a request that the photographs be sent to the engineers. Ms Silva sent an email to Mr Goubran on 2 March 2022 saying that she had sent the photographs to the engineers.

40. The strata committee compiled an “analysis report”. This was circulated to the apartment owners with a request that they respond, identifying any issues they were experiencing in their apartment. The lot owners were followed up for their responses on 2 June 2022. Mr Goubran did not respond.

41. Landlay prepared the scope of works on 26 July 2022. It was given to the owners corporation so that a tender process could be undertaken.

Negligence

58. The common property of a strata scheme vests in the owners corporation upon registration of the strata plan pursuant to s 24 of the Strata Schemes Development Act 2015 (NSW). Balconies and external walls of apartments are common property.

59. The owners corporation has a duty at common law to take reasonable care to maintain and repair common property so as to avoid a not insignificant risk of causing foreseeable harm to adjacent and abutting properties and a reasonable person in the position of the owners corporation would have taken precautions to avoid the harm.

60. It is foreseeable, given the climate of New South Wales, that there is a significant risk that harm will be caused to an apartment (No 7) below an apartment (No 12) which has a balcony the waterproofing of which has failed. There is also a significant risk that harm will be caused to an apartment where the flashing above an external window has failed.

61. In its amended defence, the defendant admits that it owes a duty of care to the plaintiff (paragraph 21).

62. In the amended statement of claim, JG&A set out the following allegations of negligence:

37 In breach of the Duty of Care, the Defendant failed to take all reasonable precautions to avoid the risk of harm to the Plaintiff.

Particulars

Failures to take all reasonable precautions in the circumstances include, but are not limited to:

1. Failure to act upon the notification from the Plaintiff of water ingress with urgency and without delay;

2. Failure to take steps to have inspections carried out to ascertain the case(s) of the water ingress with urgency and without delay;

3. Failure to take steps to obtain scope of works, tenders and quotes for the rectification of the cause(s) of the water ingress with urgency and without delay;

4. Failure to ensure that the scope of works are sufficient to rectify the cause(s) of the water ingress, and to do so with urgency and without delay;

5. Failure to take steps to obtain and provide the necessary approvals for scope of works, tenders and quotes for the rectification of the cause(s) of the water ingress with urgency and without delay;

6. Failure to ensure that the works required to rectify the cause(s) of the water ingress are carried out with urgency and without delay:

7. Failure to take out all interim and temporary steps required to enable the Plaintiff to rent out the Unit and to obtain rental income whilst permanent measures sufficient to rectify the cause(s) of the water ingress were being scoped, costed, approved and carried out, and to do so with urgency and without delay; and

8. Failure to take reasonable care to identify all risks associated with the above.

63. In its defence, at paragraph 21, the defendant pleads that it :

… has, at all material times, taken all the reasonable and necessary steps to ensure that the duty of care which it owes to the Plaintiff and the lot owners and residents of the Scheme has been upheld, in order to avoid the Plaintiff and the lot owners and residents of the Scheme suffering any alleged damages and/or losses.

64. The owners corporation pleaded, in its defence, that it took all the “reasonable and necessary steps to ensure that the necessary remediation works were carried out as soon as was practicably possible”.

65. I find that Mr Goubran discovered that water was entering No 7 in September 2021 when he was present when the carpet was taken up. Mr Goubran was aware that there was some staining of a ceiling prior to that date, but I accept that he did not know that water was entering No 7 from above until September 2021.

66. On 21 November 2021, Mr Goubran reported to Ms Silva that cracks had appeared in No 7. From that time, the owners corporation was on notice that No 7 was sustaining damage.

67. The steps taken by or on behalf of the owners corporation are set out above at [35] – [56]. From the prompt action taken by Ms Silva on 22 November 2021 to obtain an engineer’s opinion to the practical completion of the remedial work on 18 December 2024, three years and nearly one month elapsed.

68. I accept that the process for achieving the remediation in a 24 lot strata scheme necessarily involves many steps. I accept that, ultimately, the failed waterproofing of the balcony of No 12 was remedied by the owners corporation. It is clear, however, that there are very long and unexplained delays within the process. On 4 April 2022, Landlay, in its report, said that all of the balconies in the strata scheme needed to be re-waterproofed. The water damage and cracking in No 7 were attributed to the water ingress from No 12 in that report. Photographs of No 7 were included. The Landlay report says, in relation to No 7:

● Evidence of internal water penetration to living room in the form of water damage, mould growth and high moisture readings. The Unit 12 balcony is located directly above…

● Multiple instances of cracking throughout Unit 7, including to living room and kitchen, with widest instance of cracking being measured to be approximately 3 mm in width to bedroom.

69. A reasonable owners corporation, on 4 April 2022, knowing that damage had occurred to No 7 on account of water ingress, would realise that No 7 was at very high risk of sustaining on-going damage from further water ingress. A reasonable owners corporation, having regard to the damage to No 7 and the on-going very high moisture readings, would understand that No 7 was not fit to be leased.

70. In breach of its duty to take reasonable care to maintain and repair the common property to avoid the on-going harm to No 7 from water ingress, the owners corporation failed to act promptly to remediate the water ingress from No 12 into No 7. The remediation could have been undertaken quickly at any time from 4 April 2022. Instead, a prolonged process was undertaken in an attempt to deal with all of the issues in the strata scheme together. Between July 2022 and May 2023, when, apparently from the evidence, nothing was done, the owners corporation decided to proceed with the remediation works required over the whole scheme in stages, prioritising some works over others. This was inconsistent with the owners corporations duty of care to JG&A as the owner of No 7. Even if it were accepted that such a process was an acceptable way of discharging the duty to No 7, the gap of more than fourteen months from receipt of the Landlay report on 4 April 2022 to the production of the final scope of works on 13 June 2023 was not consistent with the owners corporations’ duty of care to the plaintiff. In addition, the tender process should not have taken from 13 June 2023 to 9 May 2024.

71. The plaintiff has made out its case in negligence.

72. It was argued by the owners corporation that the plaintiff failed to mitigate its loss. It was also argued that the plaintiff should not have undertaken any works to remediate the conditions within No 7 to increase the possibility that it could be leased. I reject the argument that the plaintiff was in breach of its obligation to mitigate its loss. The long term success of any mitigation could only be relied upon after the remediation of No 12’s balcony and the flashing over No 7’s external window had been completed.

Strata Schemes Management Act 2015

73. The Act provides, in s 106

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) An owners corporation may defer compliance with subsection (1) or (2) in relation to damage to common property until after the taking of action if—

(a) the action is taken by the owners corporation against an owner or another person in relation to the damage, and

(b) the deferment will not affect—

(i) the safety of buildings, structures or common property in the strata scheme, or

(ii) a person’s access to or use of the common property or a lot 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 6 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.

74. Under s 106(6) of the Act, an owner presently has six years “after the owner first becomes aware of the loss” within which to bring proceedings to recover damages from the owners corporation for the breach of the statutory duty imposed by s 106(1) of the Act.

75. Until 30 June 2025, the limitation period under s 106(6) was two years. The time limit for bringing proceeding was extended by the Strata Schemes Legislation Amendment Act 2025 No 14 (NSW).

76. JG&A’s amended statement of claim was amended by order of the Court on 14 July 2025 to add a claim under s 106(6) of the Act. In the amended statement of claim, loss is alleged to have been suffered on account of loss of rental income from 14 December 2021.

77. The time limit provided for in s 106(6) of the Act is calculated from the day upon which the owner first becomes aware of the foreseeable loss suffered by them as a result of the owners corporation’s contravention of its duty to maintain and keep in repair the common property (see The Owners - Strata Plan No 74232 v Tezel [2023] NSWCA 35 at [39]). In this matter, I have found that the date upon which Mr Goubran, and therefore JG&A, became aware of the loss was in September 2021, after the death of his mother on 9 September 2021.

78. The owners corporation argued that JG&A’s claim was caught by the pre-amendment two year time limit in s 106(6) of the Act. JG&A argued that its claim under the Act was instituted on 14 July 2025, after the amendment, and was therefore within time.

79. In Rodway v R [1990] HCA 19; (1990) 169 CLR 515, the High Court said:

4. The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events. A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance. But the difference between substantive law and procedure is often difficult to draw and statutes which are commonly classified as procedural - statutes of limitation, for example - may operate in such a way as to affect existing rights or obligations. When they operate in that way they are not merely procedural and they fall within the presumption against retrospective operation. But when they deal only with procedure they are apt to be regarded as an exception to the rule and, if their application is related to or based upon past events, they are said to be given a retrospective operation provided that they do not affect existing rights or obligations.

5. Where a period is limited by statute for the taking of proceedings and the period is subsequently abridged or extended by an amending statute, the amending statute should not, unless it is clearly intended, be given a retrospective operation to revive a cause of action which has become barred or to deprive a person of the opportunity of instituting an action which is within time. If it were given a retrospective operation, the amending legislation would operate so as to impair existing, substantive rights - either the right to be free of a claim or the right to bring a claim - and such an operation could not be said to be merely procedural. This distinction was recognized by Williams J. in Maxwell v. Murphy [1957] HCA 7; (1957) 96 CLR 261, at p 278, and his remarks were adopted by the Privy Council in Yew Bon Tew v. Kenderaan Bas Mara (1983) 1 AC 553, at p 562. Gibbs J. re-examined the question in Yrttiaho v. Public Curator (Queensland) [1971] HCA 29; (1971) 125 CLR 228 and he expressed his view, at p 242, as follows:

"Limitations may be regarded as being only of a procedural nature and, therefore, unless a contrary intention appears, retrospective in operation, if, being an amendment enlarging time, it took effect before the right sought to be enforced had become finally barred by lapse of time, and if, being an amendment reducing time, it left time after its commencement within which an action might be brought."

6. It was recognition of the fact that the simple classification of a statute as either procedural or substantive does not necessarily determine whether it may have a retrospective operation which no doubt led Dixon C.J. in Maxwell v. Murphy to formulate the general rule in terms which did not rest simply upon that classification. At p 267 he said:

"The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed. The basis of the distinction was stated by Mellish L.J. in Republic of Costa Rica v. Erlanger ((1876) 3 ChD 62). 'No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done' (at p 69)."

80. It was submitted on behalf of the plaintiff that the amendment to s 106(6) of the Act was procedural in nature and therefore not subject to the presumption against the retrospective operation of an amendment. It was submitted that the applicable time limit was six years, and that the claim under the Act had therefore been filed within time on 14 July 2025.

81. I reject that argument. The amendment to s 106(6) of the Act affects existing rights and obligations. The amended statement of claim nominates 14 December 2021 as the date from which the time for the bringing of proceedings should be calculated. The time for the bringing of proceedings therefore expired, under the Act as it then was, on 15 December 2023. From that date, the owners corporation was not vulnerable to proceedings under the Act by the plaintiff with respect to the water ingress from No 12. If the amendment were to be treated as having retrospective operation, rights which were characterised by the High Court in Rodway as “existing, substantive rights - … the right to be free of a claim” would be taken away from the owners corporation, and therefore “could not be said to be merely procedural”.

82. The plaintiff’s claim under s 106(6) of the Act is out of time.

Damages

83. The plaintiff has established an entitlement to damages for its loss arising from the owners corporations negligence.

84. The plaintiff, in its amended statement of claim, sets out its alleged loss, pleaded both in relation to the negligence claim and the claim for breach of statutory duty at paragraph 27:

27. The Plaintiff is entitled to recover from the Defendant damages for the Defendant’s failure to properly discharge the Statutory Duties, comprising of the following (Losses):

a. loss of rent from 14 December 2021 to 23 January 2024, in the amount of $750 per week, at the pro rata rate of $107.14 per day:

b. the difference between the appraised rental value and the actual rental value of the Unit for the duration of the lease that was on-foot prior to the Defendant remedying its breach of duty, namely the sum of $50 per week, at the pro rata rate of $7.14 per day, from 23 January 2024 to 24 January 2025.

…

85. Additional claims for the cost of the repairs to No 7 undertaken by the plaintiff and legal and expert costs were not pursued.

86. I have found that the owners corporation knew that the failed waterproofing of the balcony of No 12 and the faulty flashing above the external window of No 7 required remediation by, at the latest, 4 April 2022. A reasonable entity in the position of the owners corporation would have taken steps to engage a qualified and licensed person to undertake the waterproofing of the balcony to No 12 and the replacement of the flashing over the window to No 7 within a fortnight of 4 April 2022. The work could then have been completed by, say, 14 May 2022.

87. I accept Mr Goubran’s evidence that he wished to find a tenant for No 7 from 1 October 2021.

88. The only evidence before me as to the rental which could be achieved for No 7 is the letter of LJ Hooker of 23 June 2023, which says that the rental would be “approximately $700.00 to $750.00 per week”.

89. At trial, the plaintiff’s claim was put on the basis that No 7 was unable to be leased from 14 December 2021 to 23 January 2024. No 7 was then let from 23 January 2024 through to 24 January 2025 for rent of $700 per week. The claim is put on the basis that No 7 could have been leased for $750.00 per week from 14 December 2021 to 24 January 2025, but for the damage done by the water ingress.

90. There is no evidence of what rent might have been achieved before 23 June 2023. Doing the best I can on the basis of the limited evidence before me, I infer that, had there been no damage, No 7 could have been rented, on average over the whole period, for $700 per week from 14 May 2022 to 18 December 2024 (the date of the practical completion of the remediation works).

91. JG&A lost $700 per week in rent from 14 May 2022 to 23 January 2024, a period of 88 weeks and two days. The total loss of rent is $61,880.

Orders

92. The following order will issue:

93. Judgment for the plaintiff in the sum of $61,880.

94. I will hear the parties on costs.

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