McCue v The Owners Strata Plan No 3844

THE CLAIM

1. On 18 May 2021, the applicant sent to the Tribunal a written submission that set out the orders she sought and the basis for seeking the orders.
2. The orders sought by the applicant were as follows:

Order 1-Remediation of Defective Structural Supports Located in Lot 3.

1. The applicant sought an order that the owners corporation engage a suitably qualified Structural Engineer to provide a structural engineering plan to address defects in the structural supports located in Lot 3, and that the plan be based on independent inspection of the structural supports at the site of the structural alteration and take into account the relevant information contained in the reports of Acumen Engineering and Leigh Appleyard and that the owners corporation immediately engage a qualified builder to perform works per the structural engineering plan and then re-engage the Structural Engineer to certify the remediation works and the structural supports as compliant with relevant standards.

Order 2-Repair of Lot 1 Bathroom Wall Cracking

1. The applicant sought an order that the owners corporation engage a licensed and insured builder to repair the bathroom boundary wall cracking in Lot 1 in a proper and competent manner, ensuring materials are matched in quality and aesthetics to those pre-damage and per defect 1 recommendations outlined in the Acumen Engineering report, including installation of helifix ties and render repair, and associated repair to paintwork. Such work was to be completed within 90 days.

Order 3-Repair of Lot 1 Kitchen Wall Cracking

1. The applicant sought an order that the owners corporation engage a licensed and insured builder to repair the kitchen boundary wall cracking in Lot 1 in a proper and competent way, ensuring materials are matched in quality and aesthetics to those pre-damaged and per defect 3 recommendations outlined in the Acumen Engineering report, including installation of helifix ties and render repair, and associated repair to paintwork. Such work was to be completed within 90 days.

Order 4-Reimbursement for Damages Caused by Failure to Remediate Defective Supports

1. The applicant sought an order that the owners corporation reimburse the applicant for the amount of $1,650 for repair works performed by Mr Grima, licensed builder, which was required due to the failure of the owners corporation to remediate the defective structural supports located in Lot 3.
2. The owners corporation filed and served written submissions dated 19 May 2021, which responded to each of the orders sought and set out why the owners corporation opposed the orders.
3. Although the applicant had not sought or been granted leave prior to the hearing to amend her application, the Tribunal granted her leave to amend at the hearing, as no fresh claims or issues were being raised and the amendment caused no procedural unfairness to the owners corporation in circumstance where its evidence and submissions could clearly address the applicant's claims.

THE ISSUE OF THE OWNERS CORPORATION BEING LEGALLY REPRESENTED

1. At the commencement of the hearing, the applicant opposed the owners corporation being legally represented in the proceedings.
2. The applicant submitted that the issues were not sufficiently legally or factually complex to justify the grant of legal representation; and further that there was no evidence of a motion being passed by the owners corporation to obtain legal services under s 103 (1) of the SSMA.
3. The owners corporation submitted that the issues were sufficiently complex for legal representation. The owners corporation further submitted that a Motion had been passed on 14 August 2020 for legal advice and representation be obtained. The owners corporation also submitted that it had appeared legally represented at previous directions hearings, and Mr Amentas had appeared for the owners corporation on 20 November 2020' 21 January 2021; and 22 February 2021 without leave to appear being refused.
4. Mr Amentas stated that the owners corporation had provided submissions as to why the owners corporation should be granted leave to be legally represented in the proceedings in accordance with directions of Ellis SM on 20 November 2020; and that although no formal order had been made granting leave for legal representation, there had been no clear opposition to the owners corporation being legally represented since the directions hearing on 20 November 2020.
5. Mr Amentas submitted that since November 2020 his firm of Solicitors had engaged in a large amount of correspondence with the applicant in respect of the dispute. He also submitted that if leave were refused the hearing would need to be adjourned, because there was no member of the strata committee available who could present the case on 20 May 2020.
6. In reply, the applicant submitted that she had never consented to the owners corporation being legally represented in the proceedings and had made clear her opposition in the past.
7. From the procedural history of the matter, there was a direction by Ellis SM on 20 November 2020 providing for written submissions to be made by the parties as to whether or not the owners corporation should be granted leave to be legally represented in the proceedings; and that the issue would be determined "on the next occasion". However, at subsequent directions hearings, the issue was not further ventilated and no order had been made granting the owners corporation leave to be legally represented in the proceedings.
8. The Tribunal determined that the owners corporation should be granted leave to be legally represented in the proceedings under s 45 of the Civil and Administrative Tribunal Act 2013 (NSW) ('the NCAT Act'). The matters and claims of the applicant were sufficiently factually and legally complex to justify the grant of legal representation. The evidence involved structural engineering reports obtained by both parties. The applicant not only sought orders that the owners corporation conduct repairs of common property, but that the owners corporation engage a further structural engineer to inspect Lot 3 and prepare an "engineering plan". The dispute had a long history, and for much of that history the owners corporation had been represented by Clyde & Co Solicitors.
9. The Tribunal accepts that to refuse the owners corporation leave to be legally represented at the hearing on 20 May 2021 would disadvantage the owners corporation because there was no officer of the owners corporation or the strata manager available and sufficiently prepared to effectively represent the owners corporation at the hearing on 20 May 2021. To refuse leave would inevitably lead to an adjournment of the hearing, incurring more expense and uncertainty to both parties.
10. Further, from the written submissions of the applicant it was clear the applicant was an intelligent and articulate person who was capable of putting forward her evidence and arguments. Any disadvantage by reason of one party being legally represented and the other being self-represented was capable of amelioration by the Tribunal conducting the hearing in a manner that ensured the parties were on a 'level playing field'.

Applicant

1. The applicant filed and served documentary evidence on 6 May 2021 and 18 May 2021. The documents filed and served by the applicant also contained written submissions.
2. The applicant's documents were admitted into evidence, other than the documents that referred to settlement discussions between the parties. The owners corporation objected to such documents being considered by the Tribunal. Under s 131 (1) of the Evidence Act 1995 (NSW) such documents are inadmissible (other than in respect of costs proceedings) subject to the considerations in s 131 (2) of the Evidence Act 1995 (NSW). Rules of evidence do not strictly apply in the Tribunal (s 38 (2) of the NCAT Act). However, the Tribunal did not regard settlement negotiations of the parties as relevant to the determination of the real issues in dispute (s 36 (3) of the NCAT Act) and accordingly the Tribunal did not admit into evidence the documents pertaining to settlement negotiations.
3. The documents relied upon by the applicant can be relevantly summarised as follows: 1. Report of Mr Fowler, structural engineer of Acumen Engineers dated 25 January 2021. That report arose from an inspection of the strata building by Mr Fowler on about 25 November 2020 and information provided to him by the applicant on 25 November 2020. The report included photographs. 2. Reports of Mr Appleyard, structural engineer dated 3 December 2020 and 19 January 2021. As discussed previously, Mr Appleyard was the structural engineer engaged by the owners corporation. Mr Appleyard's reports arose from two inspections of the strata building. His reports also contained photographs. Mr Appleyard's second report of 19 January 2021 was to inspect and comment upon the "remedial works" that had been performed by the owner of Lot 3 in about December 2020. 3. Report of Mr Aria, structural engineer, of Aria Engineering dated 27 March 2021. 4. Email exchange between the applicant and Mr Grima (builder) on 21 April 2021. In that email exchange, Mr Grima commented upon whether the "remedial works" of the owner of Lot 3 in December 2020 were adequate. 5. Tax invoice of Mr Grima dated 1 April 2021 in the sum of $1,650 for "crack repair to kitchen wall and party wall end" and "replace kitchen splash back tiles above structural alteration". 6. Copy of registered strata plan. 7. A Strata Community Association Guide to who is responsible for common property in strata schemes. 8. A brief document from Mr Grima, builder, dated 1 March 2021. The document is addressed "to whom it may concern" and states that Mr Grima had attended the applicant's Lot in February 2017 and October 2020. Mr Grima asserted that cracks had increased from 2 mm to 5 mm. Mr Grima asserted that 5 mm cracks were "moderate" under the definition in Australian Standard AS 2870 and he opined on what repairs were appropriate. 9. An email from Dr Nguyen, structural engineer of Halina Engineers with an extract from Australian Standard AS 2870 Table 3.02 "Damage to Walls Caused By Movement of Slabs and Footings and Other Causes". Dr Nguyen had not inspected the strata building. 10. A copy of the NSW Fair Trading Guide to Standards and Tolerances dated 2017. 11. An email exchange between the applicant and Mr Grima on 18 February 2021. The applicant sought a quotation from Mr Grima regarding the cost of remedial works identified in paragraphs 5.1 (bathroom) and 5.3 (kitchen). Mr Grima did not provide a detailed quotation but asserted that item 5.1 would cost $5,000 and item 5.3 would cost $3,000. 12. Two undated close up photographs of wall cracking taken by the applicant. 13. An email exchange between the applicant and Mr Fowler. This included an email of Mr Fowler dated 14 May 2021. That email from Mr Fowler relevantly stated: … I tried to look at the photos you sent but they weren't clear enough for me but in principle the post should be on something solid and not a timber floor joist.

First Respondent

1. The owners corporation's documentary evidence was involved the same reports of Mr Aria; Mr Fowler; and Mr Appleyard that were contained in the applicant's documentary evidence.
2. Additionally, the owner's corporation's documents which were filed on 19 May 2021 and admitted into evidence contained a copy of the minutes of the Extraordinary General Meeting of the owners corporation on 10 June 2019.
3. The owners corporation also provided a written outline of submissions.

CONDUCT OF THE HEARING

1. As discussed previously, the hearing was conducted by telephone. Both parties informed the Tribunal they were ready to proceed and did not seek an adjournment of the hearing for any reason.
2. The applicant gave oral evidence. She was not cross examined by the respondent. Neither party sought to cross examine the other party's expert witnesses.
3. Most of the hearing time was consumed with oral submissions of the parties to expand upon their respective written outlines.

CONSIDERATION

1. Section 106 of the SSMA states as follows: 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.
2. The dispute in this matter does not involve the renewal or replacement of fixtures or fittings comprised in the common property under s 106 (2) of the SSMA. Consequently, consideration of whether any proposed works are an "enhancement" and whether the duty to replace (rather than repair) common property is limited to circumstances where it is reasonably necessary to replace common property rather than repair existing common property (and whether the proposed replacement is an "enhancement") do not arise in the circumstances of this matter (for a discussion of such principles and relevant authorities, see Lonergan v The Owners Strata Plan No 16519 [2020] NSWCATAP 177 at [26]-[45]).
3. Rather, the salient issue in this matter involves whether the owners corporation has failed to maintain and keep in a state of goods and serviceable repair the common property of the strata scheme under s 106 (1) of the SSMA. The context in which breach arises is the cracking of the walls of the strata scheme building which are common property, and any other damage to common property.
4. Although the cause of such damage (in whole or part) may have been the works performed by the owner of Lot 3, the cause of the damage is not the key issue for consideration.
5. Rather, if its accepted that there is cracking in common property walls and/or ceilings (irrespective of the cause) whether the owners corporation is in breach of its duty by failing to conduct repairs to the walls and/or ceilings of the strata building. If breach is established, the Tribunal must then consider the evidence in respect of what, if any, repair orders should be made under ss 232 and/or 241 of the SSMA.
6. There is a further aspect to this matter under s 106 (5) of the SSMA, because part of the applicant's claim is for reimbursement of works performed by Mr Grima which she paid for.
7. In The Owners Strata Plan SP 20211 v Rosenthal; Rosenthal v The Owners Strata Plan SP 20211 [2018] NSWCATAP 243, the Appeal Panel summarised the relevant principles arising from the decision of Brereton J in Seiwa Australian Pty Ltd v Owners Strata Plan 25042 [2006] NSWSC 1157 as follows at [35]: Section 106(1), (2) and (3) are in the same terms as 62(1), (2) and (3) of the 1996 Act. The decision of Brereton J in Seiwa summarises the relevant principles: 3. ……Section 62(1) imposes on an owners corporation a duty to maintain and keep in a state of good and serviceable repair, the common property. That duty is not one to use reasonable care to maintain and keep in good repair the common property, nor one to use best endeavours to do so, nor one to take reasonable steps to do so, but a strict duty to maintain and keep in repair. 4. The duty to maintain involves an obligation to keep the thing in proper order by acts of maintenance before it falls out of condition, in a state which enables it to serve the purpose for which it exists [Hamilton v National Coal Board [1960] AC 633, 647 (Lord Keith of Avonholm); Haydon v Kent County Council [1978] QB 433, 464 (Shaw LJ); Ridis v Strata Plan 10308 [2005] NSWCA 246, [161]]. Thus the body corporate is obliged not only to attend to cases where there is a malfunction, but also to take preventative measures to ensure that there not be a malfunction [Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Limited (1989) 18 NSWLR 33 (Young J); Ridis, [162]-[163]]. The duty extends to require remediation of defects in the original construction of the common property [Proprietors Strata Plan No. 6522 v Furney [1976] 1 NSWLR 412, 416 (Needham J); Ridis [164]-[165]]. And it extends to oblige the owners corporation to do things which could not be for the benefit of the proprietors as a whole or even a majority of them [Proprietors Strata Plan 159 v Blake (1986) CCH Strata Titles Cases ¶30-068 (Yeldham J); Ridis, [166]]. 5. It follows that as soon as something in the common property is no longer operating effectively or at all, or has fallen into disrepair, there has been a breach of the s 62 duty [cf Ridis [177]]. Insofar as Ridis held that s 62 did not oblige an owners corporation to conduct or procure the conduct of an expert assessment of every possible source of danger in the common property, personal property vested in it, and fixtures and fittings comprised in the common property, that was in the context of a submission that by imposing the statutory duty to maintain and repair, s 62 had the ancillary effect of extending the common law duty of care of an owners corporation as an occupier of the common property to include rigorous duties of inspection. The Court of Appeal rejected the submission that s 62 expressly or implicitly resulted in the imposition of such a common law duty. But that is beside the point; in this case, unlike in Ridis, the plaintiff relies on a statutory cause of action said to arise on s 62, rather than a duty of care said to arise consequentially from s 62 [cf Ridis, [87]-[88]]. 6. The duty of an owners corporation under s 62 is owed to each lot owner, and its breach gives rise to a private cause of action under which damages may be awarded to a lot owner for breach of statutory duty. This conclusion was reached by Young J, as his Honour the Chief Judge then was, in respect of the predecessor of s 62, namely Strata Titles Act 1973, s 68, in Lubrano v Proprietors Strata Plan No 4038 (1993) 6 BPR 97,457, at 13,310-13,311, upon a thorough consideration of earlier authorities to like effect [Jaklyn v Proprietors Strata Plan No 2795 [1975] 1 NSWLR 15, 24 (Holland J); Proprietors Strata 464 v Oborn (1975) 1 BPR 9623, 9624 (Holland J); Proprietors Strata Plan 159 v Blake, 50,654 (Yeldham J); Proprietors Strata Plan 30234 v Margiz Pty Ltd (NSWSC, Brownie J, 30 June 1993). Gzell J has since followed it in the context of the 1996 Act [Lyn v Owners Strata Plan No 50276 [2004] NSWSC 88, [90]].
8. In The Owners Strata Plan No 80412 v Vickery [2021] NSWCATAP 98 ('Vickery') the Appeal Panel stated at [36]: It is uncontroversial that the statutory duty in s 106(1) (and in s 62(1) of the 1996 Act) is a continuing one. An owners corporation has a continuing obligation to properly maintain and keep in a state of good and serviceable repair the common property. The statutory duty may be breached continuously or intermittently over a period of time.

Has The Owners Corportion Breached Its Duty Under s 106 (1) of the SSMA; and If So, What Are Appropriate Repair Orders?

Assessment of Expert Evidence-Mr Fowler and Mr Appleyard

Mr Fowler

1. In his report of 25 January 2021 (which arose from his inspection of the strata building on or about 25 November 2020) Mr Fowler stated as follows:
2. There was "slight cracking" of up to 5 mm in width of the bathroom external wall of the applicant's Lot. Such cracking was "probably related to long term site effects rather than Unit (sic) 3 works". Rectification would require "helifix ties across the cracking; localised replacement of cracked tiling; raking and repointing of cracked mortar joint; render removal and replacement; and localised waterproofing of the walling at the tiling replacement". Painting would be the responsibility of the Lot owner (pp 3 and 6 report);
3. There was "very slight" cracking to the splashback tiling and vertical cracking of the front wall of the kitchen of the applicant's Lot. Such cracks were likely due to the works performed by Lot 3 below, but the damage was "hairline to very slight" as defined by Australian Standards AS 2870. This cracking would require "localised tile replacement if tiles can be matched and raking and repointing of masonry joints with necessary repair render (pp 3 and 6 of report).
4. There was "vertical cracking of very slight to slight magnitude (category 1-2) of the external kitchen wall of the applicant's Lot above the window head. Mr Fowler believed this wall was a common property wall and the cracking was "probably related to long term site effects rather than Unit 3 (sic) works". Appropriate rectification involved "helifix tiles, raking and repointing of mortar joints; render removal and replacement. The windows also require easing (pp 3 and 6 of report).
5. There was diagonal cracking of the lounge room wall of the applicant's Lot, but this wall was the responsibility of the Lot owner (i.e. it was not a common property wall) and the cracks were unrelated to the Lot 3 works (p 4 report).
6. There were "some gaps" in cornices throughout the lounge room, which were "related to long term inherent building displacements". However, Mr Fowler believed the cornices were Lot property (p 4 report).
7. Damage to the lower joinery unit of the applicant's Lot was "related to occupation and not related to the Unit 3 (sic) works" (p 3 report);
8. In respect of Lot 3, Mr Fowler believed the installation of the new lintel was "unusually undertaken" and "unsatisfactorily undertaken". Mr Fowler set out the defects at p 4 of his report, and stated as follows: I recommend that a structural support be placed adjacent to the party wall, potentially 90*90 steel hollow section and that this be extended down below to lower level supporting brickwork. The gap between the existing arch bar and the new lintel should be fully grouted. The new lintel should not extend into the party wall and that any gap in party wall brickwork be grouted. I understand that Aria Engineering expressed similar concerns in their 27 March 2017 report.
9. However, in respect of cracking to walls of Lot 1, Mr Fowler stated as follows (p 4 report): I consider that the works related to the enlarged opening should have affected only structure directly above, being the front wall of Unit 1 (sic) kitchen, potentially the roof and ceiling and flooring attached to them. I consider that the displacements related to the works would not have caused damage to other walling in Unit 1 (sic) and would not have caused differential settlements of the external walling of the premises".
10. Mr Fowler also reviewed other aspects of the strata building.
11. In respect of the rear concrete stairs that lead to the applicant's Lot, Mr Fowler stated they had severe cracking and spalling indicative of concrete cancer, which would lead to eventual failure of the stairs. Mr Fowler believed that the stairs required rectification "as soon as practicable", but he could not currently identify an appropriate scope of works because it would be necessary to expose the stairs "to determine the extent of the works, repair/replacement of reinforcing and replacement of concrete material" (pp 5-6 report).
12. Mr Fowler stated that there had been "patchwork repair" of mortar joints of external brickwork of the building. Displacements of the brickwork were "mainly related to differential site settlements" and cavity ties in the brickwork had "likely corroded due to inherent weathering". Mr Fowler believed that no immediate repairs were required, but the strata scheme should have a "ten year plan to fully rake and repoint the brickwork" (pp 5-6 report).
13. Mr Fowler stated that stormwater pipes of the strata building had "deteriorated" and were prone to tree root invasion. Again, he did not recommend any immediate repairs, but that the strata scheme "should have a ten year plan to fully replace the terracotta plumbing". (pp 5-6 report).
14. Mr Fowler provided a scope of works and costings at p 6 of his report. In respect of rectification works to the applicant's Lot in respect of cracking to common property walls, Mr Fowler identified a total cost of repairs as $2,500. The rectification works to Lot 3 were costed at a total of $3,500. The cost of the external stairs was identified as $10,000, although it is unclear whether this was only the cost of engaging building consultant and engineering review; or an "estimate" of the likely total cost of rectification works including engineering review.

Mr Appleyard

1. The report of Mr Appleyard dated 3 December 2020 disagreed with Mr Aria's opinion in 2017 that there was no evidence of movement of building causing cracking. Rather, Mr Appleyard was of the opinion that "the building has undergone and will continue to undergo significant cracking as a direct responses to reactive soil movements" (p 13 report).
2. Mr Appleyard inspected the steel lintel installed in Lot 3. He disagreed with Mr Aria that there was any "excessive deflection" of the masonry wall above the lintel and saw "no evidence" of this. Mr Appleyard believed that "no structural distress would have been induced above the lintel during the course of the alteration work". (p 18 report).
3. However, for "unrelated reasons" Mr Appleyard was of the opinion that the support bracket to the lintel beam was "structurally inadequate". He recommended that this be rectified by: …the installation of a steel square hollow section column (provisional size 50 mm x 50 mm x 4 mm). Such a column could be welded to the underside of the existing steel lintel and taken down through the timber floor below and bear on the (presumed) concrete footing below.
4. In respect of cracking to the walls of the applicants Lot, Mr Appleyard accepted that the majority of the external and some internal walls "exhibit extensive cracking", but there was no causal link with the works to Lot 3 and that such cracking was "associated entirely with the effects of seasonal moisture changes in the soils upon which the footings of the building are founded" (pp 19 and 31 of report). Mr Appleyard believed the cracks in the applicant's Lot only required "cosmetic" repair.
5. In his report of 19 January 2021, Mr Appleyard stated he conducted a further inspection of the strata building on 12 January 2021. Mr Appleyard stated that remedial works that he had recommended had been performed by the owner of Lot 3, and stated: A steel square hollow section column has been installed in close adherence to the recommendations set out at Lines 44-48 page 18 in my earlier report. Attached are copies of three (3) photographs which I took during the course of my recent inspection. Photo 1-Top of column shown supporting the previously installed lintel-a general view. Photo 2-Detail of connection at top of column. Photo 3-Detail of connection at base of column. In my opinion, the remedial work which ahs been carried out is of a high standard of workmanship; it adequately addresses the earlier perceived problems, and the structural integrity of the support of the lintel, brickwork above, and the building generally has been assured.
6. Mr Appleyard's report attached 3 colour photographs taken at the inspection.
7. As discussed previously, Mr Fowler did not conduct an inspection of the strata building after the works performed by the owner of Lot 3 in December 2020 to consider whether or not the works performed adequately rectified the defect identified in page 4 of his report of 25 January 2021.
8. Rather, he briefly commented in an email dated 14 May 2021 on the photographs sent by the applicant from Mr Appleyard's report of 19 January 2021. Mr Fowler stated the photographs "weren't clear enough for me" and stated: "in principle the post should be on something solid and not a timber floor joist". Presumably, Mr Fowler's comment is in response to Photograph 3 from Mr Appleyard's report of 19 January 2021.

Order 1 Sought By the Applicant

1. Order 1 sought by the applicant is that the owners corporation should be directed to engage a further structural engineer to inspect the works to Lot 3; and then a scope of works should be obtained (and subsequently performed) to rectify defects in the structure of the strata building.
2. In essence, the applicant does not believe that the rectification works performed by the owner of Lot 3 in December 2020 have resolved structural defects identified in the reports of Mr Aria and Mr Fowler, and does not accept the opinion of Mr Appleyard expressed in his report of 19 January 2021. The applicant submits that the steel column installed was not installed on a concrete footing but on a timber joist/base. In this regard, the applicant asserts that photograph 3 in Mr Appleyard's report of 19 January 2021 does not clearly show the steel column located on a concrete footing. The applicant's written submissions contain other criticisms of Mr Appleyard's opinion.

Mr Grima's Opinion

1. The applicant submits that the Tribunal should accept the evidence of Mr Grima, builder, in his email to her of 21 April 2021 which states as follows: Hi Catlin, Confirming our discussion. The steel column seems to be installed incorrectly. A new engineer needs to draw up a structural engineering plan & give specifics of the section detail. I would expect they should recommend a concrete pad footing in dimensions of around 400 x 400 mm width and length & 600 mm deep. Once the plans are then complete, then the builder does the works according to the plans/designs. The works should then be checked & certified by an engineer.
2. The Tribunal gives little weight to the email of Mr Grima dated 21 April 2021. Mr Grima did not inspect the works. Mr Grima's opinion is based on a "discussion" with the applicant and assumptions set out in her email to Mr Grima dated 21 April 2021. Mr Grima does not refer to the reports of Mr Appleyard (nor the report of Mr Fowler) and explain why he disagrees with the opinion expressed by Mr Appleyard in his report of 19 January 2021. Mr Grima's opinion is brief and vaguely expressed, stating that the steel column "seems" to be "installed incorrectly".
3. Further, Mr Grima is a builder and not a structural engineer. Mr Appleyard is significantly more qualified to comment upon whether or not the works performed by the owner of Lot 3 in December 2020 rectify the concerns expressed previously by Mr Appleyard regarding the structural integrity of the building.
4. The Tribunal gives significant evidentiary weight to the reports of Mr Appleyard dated 3 December 2020 and 19 January 2021 on the issue of whether or not there are any potential structural defects in the building arising from the works of the owner of Lot 3. Mr Appleyard is the only expert who has conducted an inspection since the works performed by the owner of Lot 3 in December 2020. Had the steel column shown in photograph 3 not been located on a concrete footing, presumably Mr Appleyard would have made a comment about this. He did not express such an opinion; and clearly states he regards the works as satisfactory.
5. As discussed previously, the applicant did not seek to cross examine Mr Appleyard. If the applicant sought to question Mr Appleyard on his report dated 19 January 2021 and challenge him on his opinion regarding the structural integrity of the building and the works performed by the owner of Lot 3 in December 2020, she had the opportunity to do so.
6. In respect of Mr Fowler's email of 14 May 2021, little weight is given to that evidence. Mr Fowler states that the photographs sent by the applicant are unclear. He did not conduct an inspection of the property after the works performed in December 2020. Mr Fowler does not state that he has read Mr Appleyard's report of 19 January 2021 and disagrees with the opinions expressed in that report. There is no evidence from Mr Fowler that the works performed in December 2020 fail to address the inadequacies identified in his report of 25 January 2021.
7. The Tribunal is not satisfied the applicant has proved on the balance of probabilities that the owners corporation is in breach of its duty under s 106 (1) of the SSMA in respect of the common property wall in Lot 3 that was altered by the owner of Lot 3. The Tribunal is not satisfied the works lack structural integrity and is satisfied on the evidence of Mr Appleyard that any structural inadequacies have been rectified by the works performed by the owner of Lot 3 in December 2020.
8. Further, the Tribunal is not satisfied on the evidence that there is a real likelihood of the works to Lot 3 causing further cracking or exacerbating existing cracks in walls of Lot 1.

Orders 2, 3 and 4 Sought by the Applicant

1. Orders 2 and 3 are in respect of repairs to cracking in the bathroom wall and kitchen wall of the applicant's Lot.
2. The reports of Mr Fowler dated 25 January 2021 and Mr Appleyard dated 3 December 2020 both accept there is cracking, although they disagree as to the extent and cause of the cracking.
3. On the issue of cracking to the bathroom wall and kitchen wall, the Tribunal gives more weight to the report of Mr Fowler. That report contains a more detailed explanation of the location of the cracks; their width; and provides a scope of works to rectify. Notably, the scope of works proposed by Mr Fowler does not involve extensive or expensive rectification works.
4. The Tribunal accepts that the owners corporation had a duty under s 106 (1) of the SSMA to repair the cracks to the common property bathroom and kitchen walls and failure to do so is a breach of that duty. Although the owners corporation submits that the cracking is merely "cosmetic" and does not require repair, the Tribunal accepts the evidence of Mr Fowler that the cracking of common property walls is of sufficient magnitude that it requires repair.
5. In the normal course of events, the Tribunal would make a work order that the owners corporation conduct repairs to the bathroom and kitchen walls constituting common property of Lot 1 in accordance with the scope of works set out at paragraphs 5.1; 5.2; and 5.3 of Mr Fowler's report dated 25 January 2021. The Tribunal is not satisfied that there is any other cracking or damage that constitutes any breach of s 106 (1) of the SSMA.
6. However, the applicant had some work performed by Mr Grima on 1 April 2021. That work according to the invoice of Mr Grima involved crack repair to the kitchen wall at the party wall end; and replacement of some kitchen splashback tiles. The tax invoice of Mr Grima contains little detail as to what work was performed.
7. There was no clear evidence from the applicant as to what work Mr Grima had performed on 1 April 2021, nor did the owners corporation question her about this issue at the hearing. However, the applicant's written submissions of 18 May 2021 at p 6 indicate that the repairs were responsive to paragraphs 5.2 and 5.3 of Mr Fowler's report.
8. In respect of making remedial orders under s 232 and/or 241 of the SSMA for breach of s 106 (1) or (2) of the SSMA, the Tribunal needs to have sufficient evidence to set out an appropriate scope of works, rather than make vague orders that the owners corporation engage an expert to inspect and the perform works in accordance with any recommendations of the expert (Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425 at [100]-[114].).
9. The Tribunal is not satisfied that the works by Mr Grima to the kitchen wall area as set out in his invoice of 1 April 2021 fail to address the repairs identified by Mr Fowler at paragraphs 5.2 and 5.3 of his report.
10. Consequently, the only repair order that the Tribunal is satisfied is appropriate pertains to the repairs and scope of works to the bathroom wall set out in paragraph 5.1 (p 6) of Mr Fowler's report of 25 January 2021. The Tribunal makes no orders regarding painting as this was not referred to in Mr Fowler's report and in any event involves Lot property rather than common property.
11. Considering the current COVID 19 lockdown in Sydney and uncertainty regarding that issue, the Tribunal is satisfied that it is appropriate the owners corporation have until 29 October 2021 to complete such work.
12. Order 4 sought by the applicant is for reimbursement of the amount of $1,650 she paid to Mr Grima for the works of 1 April 2021.
13. Under s 106 (5) of the SSMA a Lot owner can obtain damages in respect of the owner's corporation's breach of its obligation under s 106 (1) and (2) of the SSMA.
14. The limitation period for bringing such a claim is 2 years from the date the Lot owner first becomes aware of the loss. These proceedings were commenced on 26 May 2020. Accordingly, if the Tribunal is satisfied the applicant first became aware of the loss caused by the owner's corporation's breach of s 106 (1) of the SSMA at any time after 26 May 2018, she is within the limitation period (provided the loss was not incurred prior to the SSMA 2015 came into effect).
15. In Vickery, the Appeal Panel discussed in detail whether breach of the duty under s 106 (1) and (2) of the SSMA is an ongoing breach giving rise to a cause of action each day it is breached. The Appeal Panel reached an obiter dicta ("non-binding") view that a Lot owner is not entitled to bring proceedings under s 106 (5) of the SSMA on each day the statutory duty is breached and the owner incurs the loss (para [63]).
16. In this matter, Mr Grima, structural engineer, opined in his report of 27 March 2017 that cracks be monitored for "preferably 1 year" to investigate whether there was movement in the building.
17. Although the Tribunal accepts that the applicant was aware of cracks prior to 26 May 2018, the Tribunal accepts that cracks were worsening over a period of time and became worse after 26 May 2018.
18. Considering Mr Grima's opinion, and the obtaining of further expert evidence by both the applicant and the owners corporation to further investigate the issues raised in Mr Grima's report; and the fact that the owner of Lot 3 performed remedial works in December 2020 in response to the report of Mr Appleyard dated 21 October 2021, the Tribunal is satisfied that she was "first aware" of the loss arising from deterioration of cracks after 26 May 2018. Accordingly, the applicant is within time to bring a claim for damages under s 106 (5) of the SSMA.
19. The Tribunal is satisfied that the monies paid to Mr Grima for the works performed to the kitchen on 1 April 2021 arise from the damage identified by Mr Fowler at paragraphs 5.2 and 5.3 of his report of 25 January 2021 and that such loss is caused by the breach by the owners corporation of its duty under s 106 (1) of the SSMA.
20. The Tribunal awards the applicant damages of $1,650 for reimbursement of the amount she paid to Mr Grima for repair works to the kitchen.

Other Issues Raised In Mr Fowler's Report

1. As discussed previously, Mr Fowler identified other repair issues involving the common property rear stairs. However, the applicant sought no orders regarding repair of the stairs and it is unnecessary to further consider this issue.

ORDERS

1. The Tribunal makes the following orders: 1. The Owners Strata Plan No 3844 is to repair cracks to the common property bathroom wall of Lot 1 by the installation of helifix ties across the cracking; localised replacement of cracked tiling; raking and repointing of cracked mortar joint; render removal and replacement; and localised waterproofing of the walling at the tiling replacement; as set out in the scope of works at paragraph 5.1 of the report of Mr Fowler, structural engineer, dated 25 January 2021. Such work is to be completed by 29 October 2021. 2. The work in order 1 above is to be performed by suitably licensed tradespersons. 3. The owner of Lot 1 is to provide reasonable access to the Lot so that the work order can be complied with. 4. The Owners Strata Plan No 3844 is to pay Caitlin McCue $1,650 by 14 days from the date of this decision.

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: 16 August 2021