Owers-Brown v The Owners-Strata Plan No 92562; Nakkan v The Owners-Strata... [2025] NSWCATCD 67 | Case summary

Conveyancing (Strata Titles) Act 1961 (NSW)

Owers-Brown v The Owners-Strata Plan No 92562; Nakkan v The Owners-Strata... [2025] NSWCATCD 67 | Case summary | Zoe

[60]

In this decision, the Tribunal has set out the lay evidence of the parties. The parties relied on a copious amount of lay evidence, and it is appropriate to set that evidence out so there is no doubt that the Tribunal considered it. Regrettably, that has contributed to the decision being protracted.
However, in closing written submissions of the parties, little reference is made to the lay witness evidence, and the focus of the submissions is upon the expert evidence.
The lot owners' lay evidence is contained primarily in the affidavits of Ms Owers-Brown and Mr Nakkan. The owners corporation's lay evidence is primarily contained in affidavits of current and former strata committee members (Mr Flood; Mr Schneller; and Mr Gehrig); former and current strata managers (Mr Hatzigeorgiou and Ms Lovie); and Mr Weir, a supervisor of the original builder of the strata building who was involved in the supervision of the installation of the timber decking by sub-contractors to the builder.
The proceedings were hard fought and the parties are likely to have incurred significant legal expenses. A reason for that may partly be animosity between Mr Flood; Mr Schneller and Mr Gehrig on the one hand and Ms Owers-Brown who was a strata committee member and, for a period, the Secretary of the strata committee, when the owners corporation took a position in NCAT proceedings involving a former lot owner (Mr O'Donnell) that timber decking was lot property and was the responsibility of lot owners to maintain and repair. Ms Owers-Brown now takes the position in these proceedings that timber decking is common property that the owners corporation has a duty to keep and maintain in a state of good repair.
Another reason may be the significant divergence between expert witnesses (in particular, Mr Wilkie and Mr Calandra) regarding the condition of the timber decking; and what is required for repair. In essence, Owers-Brown and Nakkan seek that the whole timber decking system proximate to their lots be removed and replaced, which will be of substantial cost. The owners corporation denies the property is common property and asserts that if it is, moderate repairs are appropriate.
There were 3 expert witnesses who gave evidence in the proceedings. Ms Owers-Brown and Mr Nakkan relied upon Mr Phil Buckley (flooring inspector of AFTA); and Mr Wilkie (building consultant). The owners corporation relied upon Mr Calandra (building consultant). After various directions (and attempts) to produce a coherent and detailed joint expert report, a final joint expert report was prepared dated 11 June 2024 that dealt with specific questions identified by the Tribunal.
As will be discussed later in the decision there is a significant divergence between Mr Wilkie and Mr Calandra on the nature of the defects in the timber decking and the appropriate method of rectification. Mr Wilkie assert the whole timber decking system proximate to Lots 3 and 4 needs to be removed and replaced. Mr Calandra asserts that only sections of decking boards (in the areas that are uncovered and more exposed to weather) need to be replaced. The difference in cost between the two methods of rectification is substantial. Mr Buckley agrees with Mr Wilkie on some issue and Mr Calandra on other issues, and states that remedial works involving waterproofing is outside the sphere of his expertise.
The hearing proceeded over 3 days (10 November 2023; 4 June 2024; and 26 June 2024). Ms Jaffray of Counsel appeared for Ms Owers-Brown, instructed by Saab Lawyers. Mr Crowley, Solicitor, appeared for Mr Nakkan. Mr Rennie of Counsel appeared for the owners corporation instructed by WMD Lawyers.
On the first day, Ms Owers-Brown; Mr Nakkan; and Mr Flood gave evidence and were cross examined. At the end of the first day, the Tribunal made procedural directions that included granting the owners corporation leave to amend their Points of Defence to raise s 106(3) of the SSM Act; and directed the expert witnesses to prepare a joint expert report setting out areas of agreement and disagreement.
On the second day of the hearing, the experts witnesses had not prepared a comprehensive joint expert report, although a form of joint expert report dated 3 June 2024 (signed by Mr Calandra, with Mr Buckley agreeing in an email; but not signed or agreed to by Mr Wilkie) had been prepared. The Tribunal directed the experts to confer and prepare a comprehensive joint expert report at a conference room at the Tribunal whilst the Tribunal was dealing with other lay witnesses.
The hearing proceeded on 4 June 2024 with Mr Hatzigeorgiou; Mr Schneller; and Mr Weir giving evidence and being cross examined (the other lay witnesses not being required for cross examination).
After the lay witnesses were cross examined, there was still no complete agreement between all of the experts in respect of a joint expert report. A form of a document was emailed to the Tribunal on 4 June 2024, but it was not a comprehensive and complete joint expert report that would allow the Tribunal to clearly understand the issues that the experts agreed upon and disagreed upon.
The Tribunal determined it appropriate to direct the experts to prepare a comprehensive joint expert report that addressed specific questions; contained a detailed scope of works; and clearly set out the areas of agreement and disagreement between the experts. The hearing was further adjourned so that report could be prepared. Due to the amount of time spent on cross examination of lay witnesses and interlocutory applications and arguments, the hearing would not have been able to conclude on 4 June 2024 in any event.
The final day of the hearing was 26 June 2024. The experts had prepared a Joint Expert Report dated 11 June 2024. That document exceeds 110 pages. The Joint Scott Schedule component of the report is in A3 page format 11 pages in length, with small font.
The experts (Mr Buckley; Mr Wilkie and Mr Calandra) were cross examined whilst giving concurrent expert evidence on 26 June 2024.
The evidence concluded on 26 June 2024, and there was a timetable for the filing and serving of written submissions. The parties also filed a transcript of all the hearing dates; and filed a Court Book (2 volumes).
The written submissions in chief of Ms Owers-Brown (prepared by Ms Jaffray of Counsel) are dated 9 August 2024. They are 29 pages in length, with an attached annexure being a scope of works in respect of the proposed work order sought by Ms Owers-Brown (referred to as "remedial works" but the works are "not necessarily limited to" the works set out in the annexure). There is also a schedule of documents identified.
The written submissions in chief of Mr Nakkan (prepared by Mr Crowley) filed on 9 August 2024 are 19 pages in length.
The written submissions in chief of the owners corporation (prepared by Mr Rennie of Counsel) dated 9 September 2024 are 41 pages in length.
The written reply submissions of Ms Owers-Brown (prepared by Ms Jaffray of Counsel) dated 30 September 2024 are 14 pages in length.
The written reply submission of Mr Nakkan (prepared by Mr Crowley Solicitor) filed on 25 October 2024 are 7 pages in length.
The transcript of evidence was filed on 1 November 2024 and the Court Book (which contained a compendium of the documents admitted into evidence at the hearing) was filed on 13 November 2024.

[66]

As no Points of Claim were filed in the Owers-Brown proceedings, no Points Of Defence have been filed in those proceedings.
However, the owners corporation filed Points of Defence in the Nakkan proceedings. The Points of Defence provide a narrative of why the owners corporation opposes the orders sought. It is clear the same position is adopted in the Owers-Brown proceedings.
The Points of Defence assert that since 2016 "the lot owners had always been informed, and believed, that the lot owners owned each of the timber decks for each unit or lot". Instructions were "provided to lot owners for the care of the timber decking to their respective properties."
The capital works fund and capital works fund plan were prepared and provisions on the basis that lot owners were responsible for any repairs required to timber decks. Other lot owners had undertaken works to replace or repair their own decks at their own expense.
In 2019, proceedings were taken in the Tribunal by Mr O'Donnell in respect of repairs to timber decking in unit 101. Those proceedings raised the issue of whether the timber decks were common property or lot property. The proceedings were "resolved." A consent order provided, in part, that the owners corporation was to enact a by law to "bring the records of the strata into line with the owners expectations" (timber deck By-law).
Ms Owers- Brown was a strata committee member involved in the O'Donnell proceedings, and gave instructions to Solicitors engaged to represent the owners corporation. The position of the owners corporation was that the decks were lot property rather than common property. Ms Owers-Brown was "on notice of, and had indicated broad consent to" the timber deck By-law.
Ms Owers-Brown "delayed" the timber deck By-law being prepared and put before a meeting of the owners corporation.
On or about 30 March 2023, shortly after Ms Owers-Brown ceased to be a strata committee member, the timber deck By-law was passed at the Annual General Meeting of the owners corporation.
Ms Owers-Brown "now seeks to prevent the registration of that By-law" by bringing proceedings in the Tribunal seeking an order under s 150 of the SSM Act.
Both the Owers-Brown and Nakkan applications "attempt to exploit the delay in the passage of the timber deck By-law so as to bring artificially inflated claims that are unfair to other owners."
Both proceedings "seek payments for works that are well in excess of any reasonable costs of repairing or replacing the timber decks to their original condition," and seek "capital improvements to the lot property rather than a direct like-for-like repair to the timber deck."
There are "significant questions" as to whether the lot owners "neglect" has caused damage to the deck. In the Nakkan proceedings, "the damage to the deck matches a mat of grass placed on the deck for the urination use of the previous owners pets, and where large heavy pots had been placed directly onto the timber." In the Owers-Brown proceedings "observations of persons that have visited the unit and the expert engaged provide an inspection suggest that the deck has not been maintained in accordance with the guidance provided to all lot owners, and shown deterioration only where heavy pots and furniture has been placed directly onto the timber."
Although the owners corporation has not filed its own proceedings in the Tribunal, it seeks "orders" in its Points of Defence. The orders sought are as follows:

[76]

SYSTEMIC DEFECTS Continued

Location & Description

Balconies and terraces (Units 101, 102, 103, 104 and 801)

1. Units 101, 102, 103, 104 and 801 have balconies and terraces that feature the proprietary timber decking system described in the preceding Item SD.3 (Lifestyle Decking by Woodform Architectural).

2. Units 1010, 102, 103, and 104 are located on Level 1 and features a large balcony, areas of which are also exposed externally (i.e. to sun and rain).

3. Unit 801 is located on the top floor of the building and features a large balcony, areas of which are also exposed externally (i.e. to sun and rain).

4. The areas of the timber decks that are exposed are exhibiting deterioration despite frequent re-coating by the owners of these units.

5. The owners of these units also instructed that the timber decking boards swell, expand, buckle, warp and displace (particularly at joints between boards). This was evident to varying degrees on each of the balconies and terraces.

6. The owners of these units also instructed that as a result of the swelling/expansion of the timber decking boards, the gaps between same close, and this consequently allows undrained water to accumulate on the timber decks after rainfall.

7. The species of hardwood timber used on the decks was not determinable and requires confirmation.

8. A generic brochure for the proprietary decking system has been provided, but no project specific designs or specifications have been provided.

Cause(s)

1. Inadequate provision in timber decking board fixing system to accommodate movement of timber decking boards.

2. The gaps created between the individual timber decking boards may be inadequate to accommodate movement/expansion of the timber decking boards. The generic brochure indicates nominal 3mm gap, which may be inadequate.

3. The clearance around the perimeter of the timber deck is inadequate. The generic brochure indicates a nominal 5 mm clearance. The clearance was measured in various locations, with no clearance having been provided.

4. A review of the project specific designs and specifications will be required to determine how the movement of the timber decking boards in exposed locations was accounted for in the design of the decking system.

Breach(es)

1. Under Section 18B (b) and (c) of the Home Building Act 1989 (NSW):

(b) Failure to supply materials that are good and serviceable for the purpose for which they are used (i.e. a timber decking system suitably durable for the conditions of service).

(c) Failure to perform work that complies with the Home Building Act.

Recommended Scope of Works/Method of Repair

1. Set up work areas and protect surrounding surfaces.

2. Disassemble the timber decking system.

3. Reinstate the timber decking system ensuring adequate provisions in fixings to accommodate movement of boards, and adequate gaps/clearances around boards to accommodate expansion.

4. Re-coat timber decking boards.

5. Clean up and make good work areas.

Note: If the proprietary system is no longer available, and it is not possible to salvage and reinstate existing timber boards, consideration will need to be given to replacing the timber decks.

Location and Description

Balconies and Terraces

1. The balconies and terraces throughout the building do not have stormwater drainage overflow outlets (e.g. splitter pipes).

2. Accordingly, there is a risk that the balconies and terraces will flood with water in the event of surcharge occurring throughout the stormwater drains or blockage during heavy rainfall. This water could then overflow into the building interior.

3. This issue is considered to be systemic because it was evident on all balconies and terraces that were inspected. 8 of the 27 units were inspected, which is considered to be a sufficiently representative sample of units in the building. A review of the buildings hydraulic drawings (tender issue) also indicates that there are no overflow provisions on any of the balconies of the terraces.

Cause(s)

1. Failure to create suitable overflow to drainage outlets to service the balconies and terraces.

Breach(es)

...

2. The absence of any overflow provision to prevent the entry of stormwater internally into the habitable areas within the building has failed to comply with Australian Standard AS/NZ3500.3:2003 'Stormwater Drainage' nominates for the requirement to prevent surface water overflow from entering the building.

...

Recommended Scope of Works/Method of Repair

1. Engage a hydraulic consultant/engineer to assess the set up and configuration of the existing balcony terrace stormwater systems and design a suitable overflow layout/drainage plan.

2. On the upper level balconies, core or cut through the base of the perimeter hobs:

-Set up work areas and protect surrounding surfaces.

-Establish suitable access provisions to allow the work to be carried out safely.

-Carefully core or cut through the perimeter hobs at appropriate positions.

-Insert PVC or stainless steel splitter pipes into the core holes. In short the splitter pipes project outward adequately and do not discharge onto the building.

-Seal around the splitter pipes.

-Repair any damaged surfaces around the new splitter pipes.

-Paint PVC splitter pipes.

-If the perimeter hobs were cut, appropriately finish and waterproof the hobs to match surrounding surfaces.

-Clean and make good work areas.

...

[81]

The report of Mr Buckley dated 1 August 2022 relevantly states:
He inspected the strata building on 27 July 2022. The purpose of the inspection was to "assess the owners' concerns regarding the wear and tear of the external decking to the terraces for each apartment unit."
The decking is a proprietary system manufactured by Woodform Architectural Pty Ltd. That manufacturer no longer produces timber decking.
The boards have been installed to treated pine battens (estimated to be 35-45mm in thickness). The battens have been mechanically fixed to the concrete with packers of various thickness elevating the battens off the concrete slab.
There appears to have been no coating applied to the cut ends, sides or undersides of the boards "although this was not confirmed." The surface of the boards has been coated as part of the regular maintenance of each unit owner at different intervals "with the majority of unit owners stating that the applications of decking finish were applied at 6-12 month intervals, as per the maintenance guide provided at handover".
The decking was installed as part of the original strata building.
Owners had "implied" that they had taken responsibility for maintenance.
Owners had complained of difficulty in accessing the drainage system below the decking.
Owners had "expressed that areas not exposed to the elements performed well when maintained effectively."
Unit 103 (the Lot of Ms Owners-Brown and Mr Brown) had a south eastern aspect with approximately 40% of the deck undercover. The set down depth of the decking was approximately 65-85mm. The "areas with more weather protection are in good condition, with the owner expressing they were pleased with the aesthetics and performance of the deck in covered locations." The exposed areas of the deck had "considerable damage and distortion observable to the decking boards." Gaps between boards had closed, the boards showed signs of decay and fungal growth. The "structural breakdown of the boards had also developed in multiple areas of the exposed decking area."
Unit 104 (Mr and Ms Nakkan's Lot) had a south western aspect with approximately 50% of the total deck area undercover. "As per all other units, the areas undercover performed well and were aesthetically pleasing." However, "as per all other decks, compromised or missing perimeter expansion, gaps between boards, decay and fungal growth and structural breakdown of boards" was observed in the exposed area of the deck.
The owners of Unit 101 provided photographs of works conducted by a plumber showing boards removed. A photograph showed "what appears to be a drain in the concrete sub-floor of this unit" (in the centre of the photo, which is silted up) whilst the following photograph shows a close up view of the same batten system with a pre-set gap beneath the battens, established bey what appears to be nylon packers.
Mr Buckley's conclusion is set out at pp 18-22 of the report.
He asserts "moisture is affecting boards in areas exposed to the elements that are not sufficiently repelling water and not drying quickly enough to prevent decay in the hardwood timber decking." The decking system sits low to the ground, and most decks have less than the 75 mm of clearance from the lower surface of the deck to the concrete slab (75 mm is the figure recommended by AFTA in its publication "Residential Timber Decks-Industry Recommendations (February 2014)". There is no "cross flow or mechanical ventilation in place around any of the deck areas." There are no removable panels or sections to allow for cleaning or maintenance under the decks. Plant debris had built up below the decking, trapping moisture and reducing water flow to drainage points. The durability of the timber used (Spotted Gum) is less than that recommended for a "close to ground installations."
According to Mr Buckley, a "combination" of construction and drainage issues has caused there to be a build-up of moisture in the timber decking, causing lateral expansion of the decking boards, fungal growth, and decay over time. There was also an absence of expansion gap at board edges. This had contributed to the moisture below the decks and created water pooling at board edges, accelerating moisture penetration and degradation to untreated board areas.
Mr Buckley stated (at p 21):

[86]

The proposed Deed with the builder and developer did not include repairs to the timber decks. According to Ms Owers-Brown, the builder and developer had adopted the position that issues with timber decking were "fair wear and tear." Prior to the meeting, in her capacity as Secretary of the owners corporation, Ms Owers-Brown sent lot owners an emailed letter on 17 August 2022, that included a copy of the report of Mr Buckley.
At paragraphs [44]-[50] of her affidavit dated 13 July 2023, Ms Owers-Brown gives her account of what was discussed at the EGM on 17 August 2022. Two Solicitors from Grace Lawyers attended the meeting.
According to Ms Owers-Brown Solicitors from Grace Lawyers orally asserted at the meeting the timber decking was common property, and had been "orally told" by Mr Poriters it may cost $300,000-$400,000 to rectify the defective timber decking. Ms Graves, of WMD Lawyers, attended the meeting on behalf of the builder and developer. According to Ms Owers-Brown, Ms Graves told the meeting the decking was lot property rather than common property and the builder and developer were not responsible or liable to repair.
Ms Owers-Brown asserts that Motion 5 to settle the legal proceedings against the builder and developer passed by simple majority (approximately 60% of unit entitlements in favour) and Motion 7 was "either defeated or withdrawn from voting".
The Minutes of the EGM on 22 August 2022 state that Motion 7 was "defeated by special resolution" as more than 25% of unit entitlements voted against it. Motion 8 was "marked as a motion of no consequence as owners who would be affected by such an undertaking advised they would not sign consent".
Ms Owers-Brown states that in the period September-October 2022 she and "other Level 1 owners" obtained "quotations from strata remedial builders to understand what was involved to rectify the timber decks in accordance with the requirements of the Design and Building Practitioners Act 2020 (NSW)" (DABP Act).
The affidavit contains the following documents:

[98]

Ms Owers-Brown asserts:
She was a strata committee member between 4 September 2017 and 15 February 2023. In the period from 15 February 2022 until 15 February 2023 she was the Secretary of the strata committee.
She obtained her license as a strata manager on 27 November 2018 and first commenced work as a strata manager on 19 March 2019.
Ms Owers-Brown did not have a "short fuse" with contractors.
In respect of the O'Donnell proceedings in the Tribunal, Ms Owers-Brown denies it was her firm view that decking was lot property. Rather, her belief was that it was unclear and that the owners corporation should obtain legal advice.
Ms Owers-Brown denies that she was, in effect, the strata manager of the property. At the relevant time, Mr Hatzigeorgiou of Netstrata was the strata manager. Ms Owers-Brown relayed instructions from the strata committee to Grace Lawyers.
At no time did two other strata committee members assert that the legal advice from Grace Lawyers about responsibility for the decking was wrong.
Ms Owers-Brown denied that she was of the view that the timber decks were lot property during the period of the O'Donnell litigation. Rather, she asserts that the issue was subject to legal advice, and she was not the one who circulated a "newsletter" to lot owners that they were responsible for the maintenance and repair of timber decking. She agrees she sent an email to Grace Lawyers on behalf of the strata committee instructing them to draft a By-law making Lot owners responsible for repair and maintenance, but "it was still open to Lot owners who did not agree that the timber decks were Lot property to refuse to pass the By-laws."
Ms Owers-Brown denies that there was any conflict of interest in her position on the strata committee and a Lot owner on level 1 of the strata building experiencing damaged timber decking in respect of the strata committee's negotiations with the builder and developer to rectify building defects.
Ms Owers-Brown was concerned that the damage to timber decking on level 1 was not considered to be a building defect in the claim against the builder and developer. It was on that basis, as well as the recommendation of Grace Lawyers, that she and other owners on level 1 obtained the expert report of Mr Buckley.
Mr Flood was "not supportive" of the report of Mr Buckley being circulated to all lot owners.
Ms Owers-Brown denies that she, in her capacity on the strata committee, deliberately delayed the preparation of the By-law that would make lot owners responsible for the repair and maintenance of timber decking. She further denies that she is attempting to benefit from the owners corporation replacing the timber decking. Rather, she asserts that it is the owners corporation's responsibility to ensure that common property is a good state of repair.

[103]

Mr Nakkan purchased Lot 4 (unit 104) with his wife on 5 July 2021.
The timber decking of the terrace of Lot 4 is approximately 65 sqm. Approximately 30 sqm is uncovered.
Mr Nakkan's affidavit attaches copies of the report of Mr Buckley and the report of RHM Consultants. The detail of those reports have been set out previously.
In respect of the EGM on 22 August 2022, Mr Nakkan states that he opposed the resolution to enter into the Deed with the builder and developer, because the scope of works in the Deed did not include repairs to the level 1 timber decking.
According to Mr Nakkan, there are drainage problems on the concrete slab underneath the timber decking of Lot 4. There are a significant amount of trees in close proximity, and plantar boxes that discharge foliage. The south-west aspect of the Lot means that rain does not readily dry quickly, particularly in winter. Mud and debris falls onto the concrete slab below the decking after rain, and although Mr Nakkan regularly cleans dirt and debris from the surface of the decking, there is no practical way for him to remove the mud and debris that collects on the concrete slab below the decking.
Mr Nakkan refers to Mr Buckley's comments about drainage and the inability to access underneath the decking, which he asserts is "exactly the experience which I have had with the timber decking." Mr Nakkan refers to the contents of the RHM Consultants report in a similar fashion.
In respect of unit 801 (Mr Schneller's Lot, which is located on the top floor), Mr Nakkan asserts that a notice of strata committee meeting to be held on 11 November 2022 noted there were "unapproved building works" being performed, which include the removal of timber decking. The notice included a "renovation application form" which "contained a proposal to lay porcelain pavers in place of timber decking."
Mr Nakkan refers to "proposed repairs by unit 102" A notice of strata committee meeting to be held on 28 April 2023 contained a "renovation application form" with a "proposal to replace the damaged timber decking with a mineral based composite decking". According to Mr Nakkan, no approval has yet been granted by the owners corporation for such work to be performed by the Lot owner.
Mr Nakkan annexes to has affidavit a quotation he obtained from G & G Carpentry to replace the timber decking with a composite decking system. The quotation is dated 30 November 2022. The quote is for removal of existing decking boards and replacement with "Modern Deck product." The proposed cost is $28,500.

[109]

A copy of the email of 29 January 2020 is annexed to Mr Flood's affidavit.
According to Mr Flood, Ms Owers-Brown delayed the preparation of a By-law and arranging of a By-law being put before a general meeting of the owners corporation by repeatedly asserting the issue would be dealt with "later."
Mr Flood states that on or about 9 June 2020, a plumber Mr Simon of CS Plumbing inspected the drainage system proximate to the timber decking on level 1 of the building, and found there were no faults. Mr Simon provided a quotation for replacement of timber decking boards.
Mr Flood states that on 20 July 2021, in the O'Donnell proceedings, Ms Owers-Brown provided a statement for the owners corporation. A copy of that statement is attached to Mr Flood's affidavit. The statement asserts the timber decking on level 1 of the strata building is lot property rather than common property.
Mr Flood states that the O'Donnell proceedings were ultimately settled by consent, with the owners corporation paying $2,780.91 to settle the proceedings.
At paragraphs [48]-[50] of the affidavit, Mr Flood refers to the negotiations with the builder and developer to settle the common property defects proceedings. According to Mr Flood, Ms Owers-Brown in her affidavit had only produced the "first draft" of the joint expert report between Mr Poriters and Mr Weir. However, the "final draft" dated 16 August 2022 "withdrew" all claims by the owners corporation in respect of timber decks on the balconies, because they are "lot property".
Accordingly, the final agreed resolution with the builder and developer did not include any works in respect of the timber decks on balconies.
At paragraphs [51]-[69] of the affidavit, Mr Flood asserts that the strata committee had agreed not to disclose the legal advice from Grace Lawyers to other lot owners, and Ms Owers-Brown should not have sent a copy of that advice on 17 August 2022, particularly when she was writing as Secretary of the strata committee. He asserts that Ms Owers-Brown was obtaining expert evidence and engaging lawyers in respect of seeking repairs to the balconies and terraces on level 1 and "acting to bring her own claim contrary to the position that she and the strata committee had taken in relation to the resolution of the O'Donnell proceedings".
Mr Flood asserts that Ms Owers-Brown "controlled" the agenda of strata committee meetings and owners corporation meetings and "did not allow" the strata manager to attend meetings. According to Mr Flood, it was Ms Owers-Brown rather than the strata manager, who prepared meeting agendas.
At paragraphs [77]-[79] of the affidavit, Mr Flood sets out work that other Lot owners have performed in respect of timber decking. He states that on 1 July 2023, the owner of Lot 1 sought permission to remove timber decking and replace it with tiles. That was approved by the strata committee and work is "underway." Lot 2 made a "similar request" which has been approved and is in the "planning stages". Lot 2 is "planning to replace the timber with a synthetic board" and unit 801 has "replaced the timber decking with ceramic tiles". According to Mr Flood, the timber decking of Lot 1 was "repaired" by the lot owner prior to the lot being sold; Lot 2 had "flattened and sanded the deck with an industrial sander". Lot 3 had placed "heavy concrete pots and tables" on the deck and ceased undertaking maintenance. Lot 4 had a "previous owner who had a dog and had a grass mat directly onto the timber decking".
At paragraph [81] Mr Flood is again critical of Ms Owers-Brown. Among other things, he asserts that she seeks a "capital improvement" of the timber deck rather than a repair; if the owners corporation was held liable it would be "unfair" to the lot owners who had either maintained their timber deck or had replaced the timber decking; and lot owners would be faced with significant expenses (including a likely special levy) if the works sought by Ms Owers-Brown were performed.
At paragraphs [82]-[89] Mr Flood comments about Mr Nakkan's evidence and his claim. Mr Flood asserts that the quotation obtained by Mr Nakkan for repairs is not "like for like." He makes the same assertions that he made against Ms Owers-Brown that the works sought are a capital improvement; they are unfair to other lot owners who have changed their decking; and will be unreasonably expensive to other lot owners.
Mr Flood asserts that between 10 and 13 August 2023 he saw Mr Nakkan and another person performing "maintenance" of the terrace deck, which involved moving heavy pots and other items. Mr Flood asserts this is the first maintenance on the deck he has seen Mr Nakkan perform. He further asserts that it after the work was complete it "rained for two days" and he took photographs which, according to Mr Flood, show no ponding of water. Those photographs are annexed to the affidavit.

[111]

Mr Gehrig is owner of Lot 15 (unit 403). He purchased his lot in November 2016. He has been a strata committee member since November 2022.
At paragraphs [4]-[7], Mr Gehrig sets out the composition of the strata committee. Relevantly, in the period between February 2020 and November 2022 the strata committee was comprised of 3 persons (Mr Flood as Chairperson; Ms Owers-Brown as Secretary and Ms Pettett as Treasurer).
When Mr Gehrig purchased his lot in November 2016, he was told (by an undisclosed person) the "timber deck is your responsibility".
Mr Gehrig asserts that he has maintained the timber decking of his terrace and has had "no issue" with damage or deterioration.
Mr Gehrig refers to the "newsletter" that was sent by the strata committee in 2016 that timber decks were the responsibility of the lot owner.
Mr Gehrig attaches two documents from the NSW Fair Trading website: "What can affect the safety of a deck or balcony?" and "Lot owner responsibilities for maintenance, repair or replacement."
Mr Gehrig asserts that the terraces and balconies are lot property because they are "not shown as common property but as lot property via the vinculum" on the registered strata plan. According to Mr Gehrig, he understands that it is his responsibility to maintain and repair lot property.
Mr Gehrig asserts that Ms Owers-Brown had no authority to circulate the legal advice from Grace Lawyers, which was addressed to the owners corporation and the strata committee had resolved to keep confidential.
Mr Gehrig states that he raised at the AGM's in 2020 and 2021 that there was no Motion containing a By-law for lot owners to maintain the decking on the terraces of their lots. According to Mr Gehrig, Ms Owers-Brown told him it was "not ready" and would be on the agenda at the next meeting. He asserts the By-law was not prepared and put to a meeting until after Ms Owers-Brown decided "not to continue" on the strata committee and was replaced by Mr Schneller.
Mr Gehrig asserts that since the commencement of these proceedings and appointment to the strata committee, two lot owners on level 1 of the strata building had "withdrawn instructions" from the law firm representing Ms Owers-Brown and had obtain permission of the owners corporation to alter the decking. Mr Nakkan had changed Solicitors.

[123]

Mr Schneller is the owner of Lot 27 (unit 801). He purchased the lot in 2014 and has resided in the lot since January 2016. His lot is the "penthouse lot" and the only lot located on the top floor (level 8).
Mr Schneller became a strata committee member at the AGM in February 2023, replacing Ms Owers-Brown who had resigned.
In "approximately 2017" Mr Schneller received a newsletter from the strata committee stating that lot owners were responsible for the maintenance of timber decking on terraces. According to Mr Schneller, he conducted regular maintenance. The timber deck only had "minor deterioration" in areas exposed to the weather, and no deterioration to the area under cover.
In July 2022, Mr Schneller was "invited" by Ms Owers-Brown to inspect the timber decking on level 1 of the building and "discuss options". He was asked to contribute (and did contribute) to the cost of obtaining the expert report of Mr Buckley.
In early August 2022, he met with the level 1 lot owners. There was a discussion of the issues regarding the timber decking and the upcoming general meeting of the owners corporation on 22 August 2022.
Mr Schneller asserts that he formed the view at the meeting that if the owners corporation settled with the builder and developer without including repair of the timber decking on level 1, Ms Owers-Brown would take legal action against the owners corporation.
After that meeting, and before the AGM on 22 August 2022, Ms Owers-Brown sent her emailed letter to all lot owners attaching the advice of Grace Lawyers about whether the timber decking was lot property or common property; and the report of Mr Buckley.
Mr Schneller attended the AGM on 22 August 2022. He asserts that after the meeting, he did not "meet again" with Ms Owers-Brown or other level 1 lot owners.
At paragraphs [21]-[29] of his affidavit, Mr Schneller refers to his decision to replace timber decking with tiles. He obtained various quotations. The cost of the work was "just under $22,000". The work occurred in September 2022. When the timber decking was removed, there was no debris under the deck. He replaced the timber decking with tiles as they would be more practical to maintain and have an indefinite life span. The strata committee approved the work Mr Schneller took photographs whilst the work was performed, which are annexed to his affidavit.
Mr Schneller assert that, in his opinion, the quotations obtained by Ms Owers-Brown to replace timber decking and drainage system of level 1 are excessive.
Mr Scheller states that he believed decks were lot property and:

[127]

As discussed previously, there was significant Tribunal time taken by legal representatives of the parties cross examining the lay witness on issues including the failure to disclose the Grace Lawyers advice; the conduct of the O'Donnell litigation; the conduct of the litigation against the builder and developer (including the decision not to pursue the builder and developer for defects in respect of the timber decking); Ms Owers-Brown sending to Lot owners the Grace Lawyers advice despite previously agreeing not to disclose it; and other matters that were asserted to go to the "credit" of the witnesses.
There was some cross examination on the lay witnesses in respect of actual damage to the timber decking of Lots 3 and 4; and the measures taken by lot owners to maintain the timber decking.
It is unnecessary to set out the cross examination of the lay witnesses in detail. As became apparent in the closing submissions of the parties, despite the extent of the lay evidence and cross examination of the lay witnesses, the vast majority of the real issues in dispute in the proceedings (ss 36(1) and (3) of the NCAT Act) involves the expert evidence.
As the Tribunal pointed out to the representatives of the parties on a number of occasions during the hearing, the critical factual issues involved (a) whether the timber decking was lot property or common property; (b) if common property, was the owners corporation in breach of its statutory obligations under s 106 of the SSM Act regarding the repair (or replacement) and maintenance of the timber decking proximate to Lots 3 and 4; and (c) if the owners corporation is in breach of its duty, what (if any) appropriate orders should be made?
The complaints about the conduct of the witnesses in the context of the administration or management of the strata scheme may have had more relevance if the proceedings involved appointment of a compulsory strata manager under s 237 of the SSM Act (see, for example Maple v The Owners-Strata Plan No 8950 [2021] NSWCATCD 108); or an application to remove an existing strata committee member from office under s 238 of the SSM Act (see, for example, The Owners-Strata Plan No 55468 v Silberstein [2025] NSWCATAP 102). The Tribunal has previously referred to the obligations of strata committee members under s 37 of the SSM Act.
It is difficult to comprehend why strata committee members would regard it as appropriate to fail to disseminate in a timely manner to Lot owners legal advice that the terrace timber decking was common property, yet take the position in the O'Donnell litigation it was not common property.
The lay evidence regarding damage to decking boards and maintenance needs to be weighed in the context of the parties having engaged expert witnesses who have inspected the relevant areas.

[132]

Nakkan's Solicitor: I take you to paragraph 15 of your affidavit that's headed Work Required to Replace the Decks. You talk about in paragraph 15 (a) not about fixing the decks but how they were built and you say there that: "The batters were affixed to the horizontal concrete surface with a threaded booker rod drilled and epoxied".

Weir: Yes

Nakkan's Solicitor: And that was drilled and epoxied into what?

Weir: Into the concrete slab.

Nakkan's Solicitor: And did the concrete slab have a membrane?

Weir: Yes.

Nakkan's Solicitor: What's the purpose of the membrane?

Weir: To waterproof the substrate.

Nakkan's Solicitor: And if the membrane is breached and water gets under the membrane and into the slab, what are the consequences?

Weir: The membrane failing.

Nakkan's Solicitor: I beg your pardon?

Weir: The membrane failing.

Nakkan's Solicitor: What are the consequences for the building?

Weir: The membrane fails and consequently water could pass through it.

Nakkan's Solicitor: Water could pass through?

Weir: If there was a crack, yes.

Nakkan's Solicitor: If the water passed through in this building in the two units that we're talking about here, 103 and 104, what is underneath the slab that could be damaged?

Weir: The commercial.

Nakkan's Solicitor: The commercial, the restaurants?

Weir: Yes

(after objection by the owners corporation's Counsel regarding the relevance of the questions, which was ruled upon)

...

Nakkan's Solicitor: Mr Weir, the purpose of the membrane is therefore to protect the concrete slab?

Weir: Yes.

Nakkan's Solicitor: And if the, as you say in paragraph 15(a), those threaded booker rods, which have been drilled and epoxied have been pulled out, they will compromise the membrane, won't they?

Weir: If they're pulled out, they will, yes.

Nakkan's Solicitor: So if they were pulled out and a repair made with different battens in the way you've suggested here, then that membrane is going to have to be repaired, if possible, or its going to have to be replaced, is that correct?

Weir: If they were pulled out. There'd be no need to pull them out.

Nakkan's Solicitor: What do you mean that they would not need to be pulled out?

Weir: Well, the battens are fixed to the booker rod. If you had to replace the battens, you would simply unbolt them and then remove them and replace them. You only need to replace-if you need to replace the booker rod, it would be if it was rusted out and they were galvanised booker rod, sealed, so I would doubt in my knowledge if they would need replacing.

Nakkan's Solicitor: So the holes that are left there-

Weir: Is fully sealed.

Nakkan's Solicitor: So if a different method of replacement was used, so if the battens were taken out and were replaced with something else so that different rods were used, then the membrane would be compromised, wouldn't it?

Weir: If the rods had to be taken out for any particular reason, of course.

[139]

According to Mr Wilkie, 30% of "exposed boards" had warped and lipped in different sections; and 10% of "covered boards" had warped and lipped. 70% of decking boards, both covered and uncovered, had cupped. Gaps between boards were "inconsistent" ranging between 0-5mm, but whether that could be considered to be a "fault" depended upon the reason for the gapping. About 3% of boards in the uncovered areas had surface deterioration. 2% of boards had "visible wood decay" and were a "potential trip hazard".
Mr Wilkie performed "invasive testing" of the north side of the deck. That involved cutting a section of boards, while taking care not to come into contact with the substrate. The report (at pp 14-17) sets out Mr Wilkie's findings, and there are photographs of an area of the substrate; a batten; and the system by which the boards where located into the battens and the battens located into the slab/substrate. Mr Wilkie also performed a water test.
Mr Wilkie states the substrate area was "damp to all areas that could be viewed." The battens "ran north to south and measured 70mm x 35 mm with a black flashing installed on the top face. The gap between the bottom of the batten and the substrate was 10 mm. Although only a small area could be observed, the flashing had no signs of deterioration. Although only a small area could be observed, the batten appeared to have no deterioration."
Mr Wilkie set out at p 15 a diagram showing the method of location of the decking to the slab/substrate. At p 15, he states "A bugle screw was fixing on the top face of the batten. Directly under this fixing between the batten and the substrate was a plastic packer. It is understood that this is the method used by the builder to secure the batten in the substrate."
Mr Wilkie also comments upon how the membrane terminated up the wall, and the likely age of the membrane.
At p 18 of the report, Mr Wilkie sets out his conclusions. Mr Wilkie states the "entire deck needs to be replaced as well as the membrane." His reasons are, in summary:

[145]

Mr Calandra (at para [4.8], p 5 of the report) also comments about the comments in Mr Buckley's report about the 'understanding' provided by the strata manager or strata committee to lot owners about their purported "responsibility" to maintain and repair the timber decking.
Mr Calandra states that the "timber decking boards are installed with minimal clearance around the perimeter of the floor and wall junctions, which would not allow for the treatment of the timber decking boards and preservation procedure in maintaining the deck." He further comments that he had reviewed the "hydraulic drawings" (although they are not set out in his report, presumably the structural plans for construction of the strata building) and "cannot confirm if the drain points are installed...as no signed off as built drawings have been supplied to our office." However, by reviewing the photographs contained in Mr Buckley's report, "it showcases that timber battens are suspended and they might be in direct contact with the floor which could cause water to pool between the battens which could contribute towards water pooling and absorbing between through the softwood timber battens and up into the and through the timber decking boards."
Mr Calandra (at para [4.10], p 6 of the report) elaborates on his opinion about the battens, based on the photographs in Mr Buckley's report.
At paragraphs [4.12-4.16], pp 7-8 of the report Mr Calandra refers to other issues raised by Mr Buckley. He agrees with most of Mr Buckley's opinions, including that the "exposed timber decking boards are in poor condition" and that boards in undercover areas were in "better condition" than the boards in exposed areas. Mr Calandra agrees with Mr Buckley that a "considerable proportion" of the deck of Lot 4 is undercover; and he agrees that exposed decking boards are affected by "wood rot in various locations". He does not agree that the step down depth of Lot 4 is 65mm-85mm, and would be "more comfortable" with a figure of 50mm-70mm.
Mr Calandra's conclusions are set out at paragraphs [5.1]-[5.14] of his report. In summary:

[150]

As discussed previously, there were 3 attempts by the experts to complete a joint expert report.
At this juncture, it is appropriate to set out the final Joint Expert Report dated 11 June 2024.
As discussed previously, the Tribunal posed 8 questions to the experts (set out in para [11] of the joint report) that required consideration and answers.
The experts prepared an extensive Scott Schedule setting out their opinions and summarizing their comments. That document is set out at pp 8-15 of the report (in A4) and a separate identical document (in A3) was provided.
At pp 16-27 of the report is the answers to the 8 questions posed by the Tribunal.
At pp 28-110 are various "inclusions" included by each of the experts. Materials included by Mr Wilkie included photographs of the decking (including an area proximate to the pool); photographs of the "bugle screws" Mr Wilkie believes secure the battens into the slab; and extracts from the DABP Act (which, because the rectification work involves external waterproofing, fall within the DABP Act according to Mr Wilkie). Mr Buckley's inclusions include a shaded plan of the decking areas referring to the damaged decking boards. Mr Calandra's inclusions include the registered strata plan; the 'newsletter' from the strata committee dated 4 December 2016 regarding lot owners being responsible for maintenance of the timber decks; and the affidavit of Mr Weir dated 25 September 2023.
It is unnecessary to set out in detail the experts answers to the 8 questions posed by the Tribunal. Much of the answers repeat, in a summary form, the opinions set out previously.
All experts agree that areas of the timber decking that are uncovered have deteriorated and require repair. Mr Buckley believes that covered areas of the deck were "performing well" and are "likely to continue to perform well," but there were "compromised elements of the design of the current decking installation system."
However, Mr Buckley also refers to the "compromised elements of the design of the current decking installation system." Mr Calandra believes "the covered decks do not need to be replaced...only the timber decking areas open to the elements." Mr Calandra comments the existing decking "does not meet appropriate standards." Mr Wilke believes the damage is to both covered and uncovered areas. Mr Buckley comments that replacing some timber decking boards with PVC decking boards would not be "common" or "aesthetically pleasing."
As referred to previously, a critical issue is the extent of appropriate works to repair. This issue includes whether battens need to be replaced (which would compromise the waterproofing membrane of the slab/substrate).
Mr Wilkie believes that one or more battens need to be replaced, and replacement of any battens will compromise a waterproofing membrane that is already reaching the end of its lifespan.
Mr Calandra states that "if the battens and waterproofing are in good order" replacement PVC decking boards fixed down upon existing pine battens are sufficient, but "if battens and waterproofing are required to be removed" a "design practitioner is required to create a scope of works which would require the existing membrane to be removed and a new membrane installed between the old and new membrane being the key element of the design practitioner's scope of works" (p 20 joint expert report).
At pp 24-27 of the joint expert report, the experts set out a summary of the issues they agree upon and disagree upon.

[205]

The key authority regarding the interpretation of s 5(2) of the 1973 Act is The Owners SP 35042 v Seiwa Australia Pty Ltd [2007] NSWCA 272; (2007) NSW Title Cases 80-122.
Seiwa was the owner of a Lot that comprised the whole top floor of a strata building. It included an uncovered external terrace. The terrace area included certain rectangular steel uprights which provided the framework that enclosed a balcony. The relevant floor areas was covered in tiles. There was water ingress into the lot by reason of failure of the waterproofing membrane that lay beneath the tiles and the concrete slab. The director of Seiwa and his family moved out of the lot and sued for damages due to the owners corporation's breach of its statutory duty to keep and maintain common property in a state of good repair.
At the hearing at first instance (before Brereton J), the owners corporation conceded that the tiles had been laid prior to the registration of the strata plan, the lower horizontal boundary was the upper surface of the tiled floor by reason of s 5(2)(a)(ii) of the 1973 Act. However, the owners corporation argued that the notation on the registered plan that defined the upper boundary of the cubic space of the terrace as "2.5 Above The Upper Surface of the Concrete Floor" by inference also described the lower horizontal boundary which therefore constituted a description on the sheet of the floor plan relating to the cubic space within the meaning of s 5(2)(b), thus overriding s 5(2)(a)(ii). Accordingly, the owners corporation argued the lower horizontal boundary was the upper surface of the concrete slab, not the waterproofing membrane and tiles.
The owners corporation's argument on the s 5(2)(b) of the 1973 Act was rejected by Brereton J, and the tiles and waterproofing membrane were held to be common property. Damages were awarded for the owners corporation's breach of its statutory duty to keep and maintain the common property in a state of good repair.
The owners corporation appealed to the Court of Appeal. The appeal was dismissed. Tobias JA wrote the leading judgement (Giles JA and Basten JA agreeing).
The Court of Appeal identified that there were two issues for determination in the appeal. The first was "were the membrane and tiles covering the membrane part of common property or part of the lot?" The second was whether there was an error in the assessment of damages. The second issue does not require exploration.
At paras [25]-[37], Tobias JA provides reasons why s 5(2)(b) of the 1973 Act does not apply and why the appellant's arguments regarding s 5(2)(b) were rejected.
However, in the course of those reasons, and in particular at paragraphs [38]-390 there are comments relevant to the interpretation of s 5(2)(a). Those comments are as follows:

[206]

"27...Section 5(2)(a) lays down a statutory formula pursuant to which, for instance, the lower horizontal boundary of a cubic space is identified as the "upper surface" of a floor where it joins a vertical boundary of that space. However, s 5(2)(b) operates as an alternative to s 5(2)(a)..."

28 Although the term "floor" is not relevantly defined in s 5(1), contrary to the suggestion referred to in the preceding paragraph, in my view it has the same meaning in both limbs of s 5(2). But that is not to the point. The first limb (s 5(2)(a)(ii)) defines the relevant boundary by reference to the "upper surface" of the floor...

29 Of course, there is still the question of what is the upper surface of a floor even where s 5(2)(a)(ii) applies. Is it the upper surface of the floor slab or, where tiles are affixed to that surface as in the present case, the upper surface of the tiles? As a matter of common sense and common parlance I would have thought the latter. The appellant conceded as much...

...

37 Accordingly, in my opinion the primary judge was correct in construing the notation on Sheet 8 of the Strata Plan as describing for the purposes of s 5(2)(b) only the upper horizontal boundary of the cubic space of which the terrace formed the base. As the notation did not purport to define the lower horizontal boundary of that space, that boundary is to be determined in accordance with s 5(2)(a)(ii), namely, as the upper surface of the floor of the terrace being the upper surface of the tiles. It follows, therefore, that the membrane is part of the common property to which the provisions of s 62(1) apply to impose upon the appellant the statutory duty to keep the membrane in a state of good and serviceable repair, which it failed to do.

38 For completeness, I should make it clear that where s 5(2)(a)(ii) applies to define the lower horizontal boundary of a cubic space as the upper surface of the floor of that space, that surface fixes the boundary as at the date of registration of the strata plan. If at that date the floor comprises only the bare concrete floor slab, then its upper surface will constitute the lower horizontal boundary.

39 However, if at the date of registration a tile or timber floor has been laid over and affixed to the concrete slab, then the boundary will be the upper surface of the tiles or timber flooring. If that upper layer of flooring is later removed and replaced by tiles or timber flooring the upper surface of which is higher than the surface as at the date of registration of the strata plan, it is the level of the original surface which remains the lower horizontal boundary, not the level of the new surface. The boundary remains fixed: it is not ambulatory. The same principle applies to the determination of the upper horizontal boundary being the ceiling to the relevant cubic space as well as to a vertical boundary of that space being a wall.

40 I am not unmindful of the practical effect of what I have written above. Careful consideration will need to be given by, for instance, a developer who is constructing a building which is proposed to be the subject of a strata scheme to what is intended to constitute the vertical and horizontal boundaries of the cubic space or spaces comprising a lot. Are they to be the surfaces of the concrete floor and ceiling slabs or brick walls or the surface of any tiles, timber or other material affixed to those slabs or walls?

41 The present case points up the importance of determining these matters prior to the registration of the strata plan. If they are not given attention, then the relevant boundaries will be determined under s 5(2)(a) by reference to the state of the floor, ceilings and walls at the date of registration, in all probability thus giving rise to unintended consequences in terms of the division of responsibility for repairs and maintenance between the owners corporation and the proprietors of the individual lots. It would seem ridiculous, for instance, if the owners corporation was required to take such responsibility for the state of the internal paintwork of a lot. Disputes over such matters can be simply avoided by utilising s 5(2)(b) to fully and clearly describe the relevant boundaries of the cubic space or spaces forming each lot of the strata plan.

42 I also appreciate that what I have said above will not necessarily assist the avoidance of disputes as exemplified by the present case with respect to many existing strata plans where advantage has not been taken of s 5(2)(b). In many cases it will be the luck of the draw dependent on the condition of the relevant floors, ceilings and walls at the date of registration of the particular strata plan. This is unfortunate and unavoidable as to the past but avoidable for the future.

[222]

The Tribunal does not accept the owners corporation's submission that Owers-Brown and Nakkan have failed to prove the timber decking was installed at the date of registration of the strata plan. Rather, it is satisfied that the timber decking was installed by the date of registration of the strata plan.
The owners corporation relies on the evidence of Mr Weir. However, his evidence as to the dates upon which the timber decking was constructed was vague. In his affidavit, there is only very brief reference to the time at which the timber decking was constructed (paragraph [19]) with a reference to "2016". His answer in cross examination (T:4/6/24:P32:L4-6) that construction occurred "around 2015, 2016, it went for 24 months" was also vague. It is not logical that installation of timber decking of a strata building would take 24 months to complete. Mr Weir may have been referring to other aspects of the construction of the entirety of the strata building.
There is contemporaneous documentary evidence to support a conclusion that the timber decking was installed as of 23 December 2015.
The tax invoices for decking materials from Woodform Architectural (the manufacturer of the timber decking system) to Sammut Developments attached to the affidavit of Mr Weir are dated 9 April 2015; and 20 May 2015. The combined amount of those two invoices (which are clearly in respect of the timber decking system of the strata building) exceed $120,000. Those invoices are more than 6 months prior to the date of the registration of the strata scheme. It is logical that the builder would install the timber decking system a relatively short period of time after purchasing the materials, and there is no evidence from Mr Weir that the materials were stored for any period of time before installation.
The Level 1 Sanitary, Plumbing and Drainage plan of the strata building attached at Annexure E of the affidavit of Mr Buckley (p 1186 of the Court Book) shows the timber decking identified. There is also an earlier Level 1 Sanitary, Plumbing and Drainage Plan dated "Nov 12" (p 1706 of the Court Book) that shows the timber decking identified.
The interim occupation certificate for the building was issued by the local Council on 20 November 2015; and the final occupation certificate for the building was issued on 3 December 2015 (20 days before registration of the strata plan). Those dates are referred to in the report of RHM Consultants dated 25 November 2021 (p 108 of the Court Book, with the report attached to the first affidavit of Ms Owers-Brown). No submission or evidence is pointed to by the owners corporation that those dates were incorrect. Considering the requirements to obtain an occupation certificate, it is inferred the timber decking had been completed by no later than the date the final occupation certificate was issued.
Lot owners who had purchased "off the plan" commenced moving into the strata building in January 2016 and the first general meeting of the owners corporation occurred on 4 January 2016. This is a very short period of time after the date of registration of the strata plan. There is nothing to indicate in the evidence of the owners corporation (other than the vague evidence of Mr Weir regarding the dates of construction) that there was construction work to the timber decking on level 1 of the building, or timber decking on any other level of the building that was ongoing after lot owners had moved into the building.
From the above evidence, an inference is drawn that the timber decking on level 1 of the strata scheme building had been installed prior to the date of registration of the strata plan. The factual evidence is sufficient to establish that inference (Re Day [2017] HCA 2; (2017) 340 ALR 368 at [15] and [18]). Evidence is assessed in the context of the ability of a particular party to adduce evidence on the relevant factual issue (G v H [1994] HCA 48; (1994) 181 CLR 387 at 391-392). In that regard, other than the vague evidence of Mr Weir, it is notable that the owners corporation has not referred in its submissions to any cogent evidence that the timber decking on level 1 the subject of these proceedings had not been installed after the date of registration of the strata plan.
The above factual findings are sufficient to deal with the issue of whether the applicant had established, on the balance of probabilities, the timber decking to the terraces on level 1 of the strata building had been installed by the date of registration of the strata plan.
For the sake of completeness, the Tribunal notes the submission of Owers-Brown that the owners corporation had not pleaded in its Points of Defence that the timber decking of the terraces on level 1 of the strata building had been installed after 23 December 2015, and that it cannot, as a matter or procedural fairness, now argue Owers-Brown (and Nakkan) has to prove that they were installed on or before 23 December 2015.
The Owers-Brown Annexure A to the application (Orders Sought and Reasons for Seeking Orders) relevantly assert as follows:

[226]

The owners corporation's Points of Defence do not assert that the timber decking was not installed as of the date of registration of the strata plan, despite that issue being clearly pleaded in the Points of Claim (in the Nakkan proceedings) and the application (in the Owers-Brown proceedings). It is not even clear from the Points of Defence that the owners corporation denies the timber decks are common property, as distinct from lot owners "being informed" and "believing" they were lot property.
The role of 'pleadings' in the Consumer and Commercial Division of the Tribunal was recently discussed in Dr N Kalokerinos Pty Ltd v Jain [2025] NSWCA 137 at [61]- [67] (which was an Appeal Panel decision where the issue of whether a concession or admission made by a respondent in Points of Defence bound the respondent). The principle that pleadings are fundamental to a procedurally fair hearing unless the parties choose to disregard the pleadings and fight the case on issues chosen at trial is well established (see, for example, Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70 at 664). Legally represented parties are also usually bound by the strategic decisions they make in the way they argue their case (see the discussion of these principles in Hawach v A & A Building Services Pty Ltd [2024] NSWCATAP 138 at [74]- [87])
At the commencement of the first day of the hearing, before Ms Owers-Brown was called to give evidence, the only issue raised by the owners corporation's Counsel to amend the Points of Defence, was in respect of raising s 106(3) of the SSM Act in regard to the Resolution passed at the general meeting of the owners corporation on 30 March 2023 (T:10/11/23: P 11-13). Nothing was raised at the commencement of the hearing that the owners corporation was asserting Owers-Brown and Nakkan had to prove that the timber decking on level 1 of the strata building had been installed on or before 23 December 2015.
If it was necessary to determine this issue, the Tribunal would find that the failure to clearly respond in the Points of Defence (or seek to amend them at the hearing) to deny, or not admit, the assertion by Owers-Brown and Nakkan that the timber decking had been installed as of the date of registration of the strata plan meant that the owners corporation could not raise this as an issue in dispute.
However, for reasons expressed previously, the evidence satisfies the Tribunal that the timber decking on the terraces of level 1 of the strata building had been constructed and installed by the date upon which the strata plan was registered.

[245]

The Tribunal should find the battens in the uncovered area are "in disrepair" and must be removed as part of any scope of works to repair the terrace decking.
Bugle screws, not booker rods, were used to install the battens into the slab.
The waterproofing membrane would, or would reasonably be likely, to be damaged if battens are removed.
Mr Calandra, in his report, had opined that all damaged decking boards and timber battens would need to be removed to replace the decking in the uncovered deck area.
Mr Calandra had made concessions in the first two joint expert reports that battens needed to be removed and replaced. It was only in the final Joint Expert Report (and at the hearing) where Mr Calandra clearly stated that battens did not need to be replaced in the course of replacing decking boards.
Mr Wilkie's evidence on replacement of battens should be accepted. He observed battens whilst performing his inspection and believed that they were sufficiently deteriorated, or likely to be deteriorated, that one or more of them required replacement.
Although Mr Buckley stated in cross examination that the battens may be structurally sufficient to support replacement decking boards, that needs to be taken in the context of his other evidence that: (a) if a batten is soft to touch it is not structurally sound; (b) if battens are not structurally sound they need to be replaced; and (c) Mr Wilkie's evidence the battens he inspected felt soft to touch was a "concern" and "was the most conclusive evidence that there may be decay".
Mr Wilkie was not challenged in cross examination about what he observed when he touched the battens.
Mr Wilkie's evidence should be given more weight because he viewed the battens and touched them, unlike Mr Buckley and Mr Calandra.
Mr Calandra did not give any evidence disputing Mr Wilkie's opinion that if a batten was soft to touch, it was not structurally sound.
The evidence of Mr Wilkie that the battens are connected to the slab/substrate using bugle screws and that to remove a bugle screw interferes with the waterproofing membrane should be accepted. Mr Calandra assumed in his report that was the system used. The Tribunal should not accept the evidence of Mr Weir that a booker rod system was used, nor Mr Calandra adopting a position at the hearing agreeing with Mr Weir that a booker rod could remain in place and not compromise the waterproofing membrane to replace the decking boards. Mr Wilkie explained at the hearing what he observed and why he believed bugle screws rather than booker rods were used. He was not challenged about that aspect of his evidence. The evidence of Mr Weir is to be given little weight due to the length of time between the installation of the deck and his evidence; and that it is clearly inconsistent with the evidence of Mr Wilkie who performed an invasive investigation where he actually looked at the battens and the system used to locate them into the slab/substrate.
Further, Mr Wilkie's opinion about bugle screws being used is consistent with the evidence of Mr Schneller that when he replaced the timber decking on his terrace with tiles, he observed battens located by screws (approximately 150 mm in length).
Even if the Tribunal found that booker rods were used, Mr Wilkie stated in cross examination that they "would be a major place for wood decay" and that he remained of the view that battens would need to be replaced and the replacement would compromise the waterproofing membrane.
If the Tribunal finds that some or all battens need to be replaced and to do so will damage the waterproofing membrane (causing it to need to be replaced) the appropriate scope of works for the "uncovered area" is set out in Annexure A to the submissions. However, any building work must be performed in compliance with the DABP Act because the works involve external waterproofing works, and a design will need to be performed.
To repair the "uncovered areas" there are also ancillary areas that will need to be repaired (proximate to the pool and outdoor kitchen area), as set out in Mr Wilkie's report. The Tribunal should not accept Mr Calandra's evidence assuming these areas are lot property not common property.
The "covered area" of the decking also needs to be replaced, after a design is obtained from an appropriately qualified designer under the DABP Act, for the following reasons:

[252]

Owers-Brown and Nakkan have not established that he timber decking needs to be replaced. Their case is primarily based on preventing future deterioration occurring. There is no current "adverse impact on the use of the deck." The covered areas of the deck are in good condition and do not need to be replaced. The battens and underlying structure are in a state of good repair. There is no evidence of any damage to underlying waterproofing and any need for such work would only arise if the waterproofing was damaged during any repair works.
If the Tribunal finds the decking repair, the necessary repairs are limited to replacement of a small amount of decking boards that are in the uncovered area. The submission that the decking system needs to be replaced is based on "speculation."
Owers-Brown's claim for damages under s 106(5) of the SSM Act must be dismissed because (a) legal costs are not damages; and (b) there is no evidence of any costs incurred, and accordingly no evidence of loss or damage.
The decking system is a fixture as it is secured to the concrete slab. The owners corporation relies upon the definition in the Macquarie Dictionary regarding what is a "fixture." Renewal or replacement of fixtures under s 106(2) of the SSM Act can only be ordered if the fixture has fallen into such a state of disrepair that it has to been replaced because it can no longer be kept in a state of good repair (The Owners Strata Plan 50276 v Thoo [2013] NSWCA 270 at [130]- [131]).
Both Owers-Brown and Nakkan brought their proceedings seeking an order that the terrace decks be repaired under s 106(1) of the SSM Act, not that they be replaced with a new decking system under s 106(2) of the SSM Act. By reason of failing to "address the correct statutory provision" they have "failed to address the appropriate test for the relief they now seek" and the authorities referred to by Owers-Brown and Nakkan (such as Ridis v Strata Plan 10308 [2005] NSWCA 246; (2005) 63 NSWLR 449; Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425; and Seiwa) do not address the duty under s 106(2) of the SSM Act. Owers-Brown and Nakkan "are not permitted to stretch the scope of "repair" under s 106(1) of the SSM Act to cover the complete replacement, renewal and upgrade they now seek".
The evidence as to moisture and deterioration under the surface of timber decking boards "relates to future issues that have yet to adversely impact the safety and use of the decks." The orders sought by Owers-Brown and Nakkan involve "a level of perfection" that is not required by the concept of "good and serviceable repair."
The evidence of Mr Buckley and Mr Wilkie "is effectively in contest with itself."
The evidence of Mr Buckley is that the undercover areas of the decks (approximately 40% of the Owers-Brown decking and 50% of the Nakkan decking) have "performed well" and in his initial report it is stated "remedial measures would be considered necessary in exposed areas only".
Contrary to the submission of Owers-Brown, Mr Calandra in his initial report stated that repair works were only required to the decking boards.
Mr Wilkie is the only expert witness who asserts the decking system needs to be replaced in its entirety.
Mr Wilkie's evidence should not be accepted because he expresses his views as "findings" rather than setting out observations and opinions. His opinion that 80-90% of decking boards are damaged is not supported by any photographic materials or by Mr Buckley.
Mr Wilkie's opinion that battens need to be replaced is "speculative" and does not take into account Mr Weir's evidence that the battens are located into the substrate/slab by booker rods. The evidence of Mr Weir should be accepted.
Mr Wilkie's assertion that the DABP Act applies to remedial works is speculative and beyond his area of expertise.
Mr Wilkie has raised a new matter in the final Joint Expert Report, being works in the decking area proximate to the pool; the pool handrail; glass panels and gate. Further, Mr Wilkie has not explained the why the work is necessary (paragraph [92] of the submissions). If the Tribunal to was to accept such evidence it would be "effectively accepting that Mr Wilkie as the sole Tribunal of fact in the case."
Mr Wilkie's evidence in the final Joint Expert Report is, in effect, reply evidence masquerading as evidence in chief and has "damaged the ability of the respondents and the Tribunal to scrutinise the evidence under the normal procedures for applicants to establish their case" (paragraph [93] of the submissions).
Mr Wilkie's evidence that the decking system needs to be entirely replaced is the "outlier" of the experts, and there is "significant danger" in accepting an "outlying expert."
It was Mr Wilkie's fault no coherent joint expert report was obtained prior to the final Joint Expert Report, and only the final Joint Expert Report of 11 June 2024 assists the Tribunal.
In the final Joint Expert Report, only Mr Buckley and Mr Calandra agree with each other in any "substantive" way. Mr Calandra makes the concession from his original report that damaged decking boards in the uncovered area require replacement with synthetic boards, not timber boards. Mr Wilkie makes no concessions.
Mr Buckley and Mr Calandra agree that the condition of the decking boards in the uncovered areas need to be considered separately from the decking boards in the covered areas.
Mr Wilkie's evidence that the DABP Act applies is outside his field of expertise, and should be rejected. Mr Wilkie is an advocate in the Owers-Brown case, and his evidence should be rejected on that basis, although "the Tribunal need not go that far...it is sufficient for the Tribunal not to be persuaded by the reasoning demonstrated in Mr Wilkie's analysis" (paragraph [116] of the submissions).
Mr Buckley and Mr Calandra agree that there is no likelihood of damage to the membrane when decking boards are replaced. In this regard, Mr Buckley stated in the final Joint Expert Report:

[254]

In joint expert evidence at the hearing, Mr Buckley agreed with Mr Calandra in substance that the damaged decking boards could be replaced without damaging the membrane, although "there were risks" (paragraph [119] of the submissions).
Mr Wilkie's opinion that battens needed to be replaced, or if decking boards were replaced there may be damage to the membrane was "speculative" in respect of the potential conduct of contractors replacing decking boards. The evidence that any battens needed to be replaced was "scant at best." Mr Wilkie was "grasping at straws to reach a predetermined outcome for his clients."
At paragraph [125] of the submissions, there is a lengthy dissertation on what is asserted occurred in cross examination of the experts at the hearing. The owners corporation submitted that "the only evidence of battens" in Mr Wilkie's report is the photograph at page 45. No other photographs were taken. Assessment of one batten is not sufficient to opine that it, or other battens, need to be replaced. Mr Calandra stated that drilling a booker rod through a silicone bead was an effective measure or maintaining a waterproofed seal. There was no evidence the battens in the deck of the Nakkan property were not structurally sound, and the waterproofing membrane to both decks was different. There was no basis established to replace the decking on both the Owers-Brown terrace and the Nakkan terrace. All experts agreed that aesthetic issues regarding a mixture of existing timber boards and PVC/synthetic boards replacing the damaged boards in the uncovered areas did not affect the structural integrity of the decking board system.
At paragraphs [126]-[129] of the submissions the owners corporation sets out its proposed scope of works (if the Owers-Brown and Nakkan proceedings are not dismissed), which is based on the "high degree of agreement" between Mr Buckey and Mr Calandra. That scope of works (at [129]), like the scope of works propounded by Owers-Brown in Annexure A of the Owers-Brown submissions, is not precisely replicated in one of the expert's scope of works, but has been drafted by the lawyers. The proposed scope is, in essence, that damaged timber decking boards are to be removed and replaced by PVC substitute decking boards, with "all works to be undertaken carefully to preserve the concrete render and waterproofing membrane."

[261]

Owers-Brown reply submissions are dated 30 September 2024. The comprise of 14 pages.
It is unnecessary to set out the submissions that repeat, in a slightly different form, the submissions in chief.
Paragraphs [2]-[12] of the reply submissions deal with the issue of whether the terrace timber decking is common property or lot property. The Tribunal has previously made findings on that issue, and so there is no utility to set out the reply submissions.
Paragraphs [13]-[31] deal with the distinction between ss 106(1) and (2) of the SSM Act. Owers-Brown submits that there has been no election only to rely on s 106(1) of the SSM Act, and it has been clear from the way the case has been run that Owers-Brown seeks replacement of the decking system. The submission refer to an overlap between ss 106(1) and (2) of the SSM Act. In that regard, authorities such as Proprietors of Strata Plan No 6522 v Furney [1976] 1 NSWLR 416.
The submissions do not definitively argue whether or not the timber decking system is a fixture. In essence, Owers-Brown submits it makes no difference, because the condition of the decking is sufficiently defective that the whole decking system needs to be replaced.
Paragraphs [32]-[52] deal with the owners corporation's evidence about the expert evidence. It is submitted that Mr Wilkie's evidence should be accepted over Mr Calandra's. Most of the submissions repeat what has been referred to previously in these reasons. It is submitted that Mr Wilkie is not the "outlier" in respect of damage to the waterproofing membrane of the slab when replacement of decking timbers are performed, with Mr Buckley agreeing with important aspects of Mr Wilkie's evidence. It is submitted that there is an inconsistency between the opinion of Mr Calandra expressed in the "first joint expert report" and the final Joint Expert Report.
Paragraphs [53]-[55] refer to the issue of Ms Owers-Brown's legal costs being damages recoverable under s 106 (5) of the SSM Act. Owers-Brown submits the only damages being sought are her costs up to the commencement of proceedings, and thereafter costs would be dealt with under s 60 of the NCAT Act. It is submitted that the legal costs for removing a caveat are recoverable under s 74P of the Real Property Act 1900 (NSW) (RP Act), relying upon Hillpalm Pty Ltd v Wilson [2009] NSWSC 362 at [23], and s 106(5) of the SSM Act is "analogous" to s 74P of the RP Act.
No submission is made in reply to the owners corporation's submission that there is no evidence quantifying any loss or damage; nor do the reply submissions of Owers-Brown make any submission dealing with the Appeal Panel decision in The Owners-Strata Plan No 21563 v Rutherford [2023] NSWCATAP 326.
Paragraphs [56]-[62] deal with the claim under s 150 of the SSM Act in respect of the Resolution to pass a By-law making Lot owners responsible for repair and maintenance of timber decking on 30 March 2023. Owers-Brown "does not understand" the owners corporation's submissions on that issue. By reason of s 141(3) of the SSM Act, the By-law cannot be registered. Owers-Brown sought relief in the Tribunal proceedings during the period it could be registered. It was raised on the first day of the hearing orders under ss 24 and/or 150 of the SSM Act were "not pressed".
Finally, it is submitted that Ms Owers-Brown's credit is "not relevant to any issue in dispute" and criticisms of her in the owners corporation's submissions are unfounded.

[262]

Nakkan's reply submissions were filed on 25 October 2024 and comprise of 7 pages.
Paragraphs [3]-[11] refer to the issue of whether the timber decking is common property or Lot property. In light of the previous findings of the Tribunal on this issue, it is unnecessary to detail the submissions.
Paragraphs [12]-[19] refer to the Appeal Panel decision in Gittins. It is submitted that the principles in Gittins apply to this dispute.
Paragraphs [21]-[34] deal with the type of repairs. It is submitted that the evidence of Mr Buckley demonstrates the decking system was "defective from day 1" and allows the build-up of moisture damaging decking boards due to inadequate ventilation and drainage.
Nakkan submits, without reference to any authorities, that the decking is "simply one component of the floor." It is not clear as to whether or not it is submitted the decking system is a fixture. It is submitted that the decking "does not exist independently of the concrete slab and waterproofing," and there is a restaurant (commercial Lot) situated below.
Nakkan submits the repairs proposed by Mr Calandra are a "minimalist method of repair" which will lead to further disputes in the future because the inadequate design and performance of the decking system will lead to further deterioration of the decking boards, which can only be properly dealt with by replacement of the decking system.
Nakkan submits that Mr Wilkie's evidence that a "partial repair" cannot be done in accordance with the DABP Act or warranted by a builder should be accepted, and any breach of the integrity of the waterproofing membrane will "likely cause extensive damage to the restaurant below." It is submitted "the whole of the respondent's submission regarding repair versus replacement becomes redundant."
At paragraphs [35]-[38] it is submitted that Nakkan's claim for damages "is maintained". No discussion is proffered regarding the legal authorities referred to in the owners corporation's submissions.
At paragraphs [39]-[40] the submissions refer to the "registration of By-law". It is submitted that the owners corporation's criticism of the conduct of Ms Owers-Brown is not levelled at Mr Nakkan, and "there is no basis on which the Nakkan interest should be diminished or any of their rights to an order in relation to the breach by the respondent of section 106 as a result of the respondent's undertaking in relation to the proposed By-law". No submission is made about the operation of s 141(3) of the SSM Act.

[276]

"The difference in the approaches of the Judges who sat in Ridis lies in the degree to which sub-section (2) should be read as being controlled by the obligation in sub-section (1). On the view expressed by Hodgson JA, the obligation in sub-section (2) to renew or replace an item of common property arises only when it is "necessary" or "appropriate" to do so as part of complying with the obligation to maintain the common property in good serviceable repair under sub-section (1). I do not read his Honour as deciding between whether the repair or replacement is "necessary" or only merely "appropriate."

Tobias JA expressly said that something less than necessity was required and instanced the removal of a reasonably foreseeable safety risk as falling within sub-section (2). But although McColl JA did not address the question in quite the same way, her view at [169] was that the relevant fixture or fitting needed to have deteriorated, to have been damaged or to be operating inadequately. Given that the majority in the case rejected the idea that the safety glass should have been upgraded as part of a risk assessment, I consider the view of McColl JA best reflects the ratio of the Court's decision. I think that Tobias JA accepted that in the later case of Thoo, which is discussed below.

...

There is force in the contention that practicality requires allowing a degree of judgment and latitude to an owners' corporation in determining how far to go with repair and replacement work in a maintenance context. Often, the replacement of an old and obsolete item may be cheaper and more effective in the long run than continuing to try to patch it up. There is also a textual basis for allowing a degree of latitude to an owners' corporation in deciding what and when should be replaced. Maintenance is not necessarily confined to responding to a breakdown; the term usually also includes preventative maintenance, that is, replacing something which has reached the end of its service life before it fails: Hamilton v National Coal Board [1960] AC 633 at 647; Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33 at 40 per Young J.

On the other hand, the purpose of s 65A was clearly to protect minority owners in a building from having the costs of enhancement imposed on them by the majority. The minority may prefer to continue to eke out the existing facilities even if in the longer run, that may prove more expensive or inefficient. They may have less money to spend, or their priorities may be different. The legislative purpose behind s 65A could arguably be subverted if unnecessary costs could be imposed on the minority at the discretion of the majority just because some, much less extensive, repair or maintenance is required.

The lift in the building the subject of these proceedings illustrates this tension very well. It is clear from the Pitfield report that it would be possible to continue to patch the lift up; but that may well not be the most economical or practical course. On the other hand, the replacement of the lift, which the majority owners now characterise as a form of repairs and maintenance under s 62, was originally conceived as part of an overall plan for the refurbishment of the building which was undoubtedly, taken as a whole, an enhancement.

In my view, it is implicit in what Tobias AJA said in Thoo that the obligation in s 62(2) to renew or replace items of common property is limited by a concept of reasonable necessity. His Honour stated at [129] that the provision is only engaged where the item can no longer be kept in a state of good and serviceable repair. He went on to say that the provision is only directed to circumstances where the item "is no longer operating effectively or at all, or has fallen in to disrepair."

The passages I have quoted from the judgment of Senior Member Ross (at [53] above) are expressed in terms of the Tribunal not being satisfied that the works in question were necessary to comply with the Strata Corporation's repair obligations under s 62. In expressing herself in this way, Senior Member Ross may have reversed the onus of proof. No doubt if the work the subject of the resolution fell within s 62 then the Strata Corporation had a legal obligation to undertake it. But the majority owners had no obligation, in responding to Ms Hegyesi's application, to demonstrate affirmatively that s 62 applied. It was for Ms Hegyesi as applicant in the Tribunal to show that the resolution fell foul of s 65A.

In my view, Senior Member Ross should, strictly speaking, have asked herself whether the works the subject of the resolution fall within s 65A. But counsel for the majority owners did not identify reversal of the onus as a ground of appeal against Senior Member Ross' decision. The case was argued before me by reference to the evidence and without any submissions from either party as to onus. This is understandable because in my view the question comes down to one of statutory construction based on facts which are not in dispute.

I think that, despite the "finding" by the Tribunal based on the position taken by the parties in the proceedings that the replacement of the lift was "required," the facts make it clear that the disputed works associated with the lift were not reasonably necessary in the sense implicit in Thoo. The Pitfield report shows that it would be possible to continue to maintain the existing lift and that it can be expected to operate for many years into the future. There is nothing in the evidence which establishes that a new lift car is required, much less a new lift shaft.

On the facts, the lift is operating in accordance with its design requirements and can be kept operating into the future. It has not reached the point where it "can no longer be kept in a state of good and serviceable repair" to use the language of Tobias AJA in Thoo. In the language of Barrett JA, the existing functionality of the lift can be maintained without renewing or replacing it. Installing a new glass lift would be an improvement, not the maintenance or reinstatement of the functionality of the existing lift."

[279]

A relevant issue in dispute in Glenquarry was whether an internal mechanical lift in the strata building (constructed in 1936 and not complying with current building standards) needed to be replaced with a glass lift. If the lift was replaced, an adjacent wooden staircase would need to be replaced with concrete stairs and other major structural changes to the building. The only expert evidence regarding the lift (referred to at paras [51]-[51]) was that the lift was operating effectively and if continued to be serviced regularly would continue to operate until, eventually, spare parts could not be obtained.
Parker J found (on appeal from a Tribunal decision) that the Tribunal had erred in the finding that the lift (and staircase) needed to be replaced for the owners corporation to comply with its duty to keep and maintain common property in a state of good repair under the predecessor of s 106, and did not need a special resolution to approve the works under the predecessor of s108 of the SSM Act There was consideration of whether the performance of "preventative maintenance" would be open to the owners corporation as in incidental power under s 50(1)(e) of the Strata Schemes Management Act 1996 (NSW), but that issue did not require resolution as replacement of the lift was not reasonably necessary (paragraphs [80]-[88]).
There was also a separate issue in Glenquarry involving the scope of repair orders made by the Tribunal, not only in respect of the lift but other aspects of repairing common property. Parker J held that the orders (which involved directing the owners corporation to undertake expert investigations, and then perform works with no scope of works being identified in the orders) were too broad, uncertain and indeterminate to form the basis of an appropriate remedial order.
In respect of the expert evidence in this matter, critical issues for determination are how the battens are located into the concrete slab; and whether in respect of replacement of decking boards, battens need to be removed which will compromise the waterproofing membrane of the concrete slab; or that membrane will be otherwise damaged during repair works or otherwise needs to be replaced. All of the experts agree some decking boards need to be replaced, because they have fallen into a sufficient state of disrepair. There is disagreement on the issue of how many decking boards need to be replaced (particularly the distinction between the covered and uncovered areas). However, a critical disagreement is whether battens upon which the decking boards sit need to be removed and replaced.

[282]

Immediately after this evidence (at T:26/6/24: P 78: L 1-17) Mr Calandra described how the booker rods were located into slabs to be sufficiently waterproofed, but that even if bugle head screws were used there was "no evidence those bugle heads...failed in any way".
I do not accept the evidence of Mr Weir (adopted by Mr Calandra) that booker rods were used to locate the battens into the concrete slab.
The evidence of Mr Weir relates to events that occurred more than 10 years ago. His evidence in chief on this issue in his affidavit was brief, as well as his oral evidence when cross examined by Nakkan. There is no contemporaneous documentation that Mr Weir points to, such as photographs or invoices from the manufacturer or suppliers, that refer to booker rods being used.
Although Owers-Brown and Nakkan did not directly challenge Mr Weir on his evidence on this issue, Owers-Brown certainly challenged Mr Calandra in cross examination during the joint expert evidence at the hearing 26 June 2024 about how the battens were located into the slab, as well as Mr Wilkie giving his oral evidence to explain what he saw when he removed decking boards and looked at a batten, and why he believed the battens were located into the slab by way of bugle screws attaching into anchor points.
I accept Mr Wilkie's detailed evidence explaining his opinion as to why bugle screws have been used. In this regard, the manual of the manufacturer (Woodform) referred to in the report of Mr Wilkie and the affidavit of Mr Buckley (dated 24 August 2024; paragraphs [21]-[22]; p 1144 of the Court Book) show screws, with Mr Buckley stating, "the full diagram shows the boards are affixed to a timber structure underneath by screws".
Further, Mr Schneller, when cross examined at the hearing regarding his replacement of timber decking with tiles refers in detail to having viewed battens being located into the concrete slab by "screws" (T:4/6/24: P22-23). There was no mention of bolts, nor was there any re-examination of Mr Schneller to suggest that he needed to clarify what was meant by using the word "screws."

[284]

This is a critical factual issue in dispute.
Irrespective of whether the battens are located into the slab by booker rods or bugle screws, the Tribunal must determine whether there is sufficient evidence that some battens need to be replaced in the course of replacing decking boards.
If they do not need to be replaced, then much of Mr Wilkie's evidence about the waterproofing membrane being compromised and needing to be replaced falls away.
The Tribunal does not accept Mr Wilkie's evidence that there is a significant risk that tradespersons replacing decking boards (whilst the battens remain in place) will damage the membrane. There is a risk, but as Mr Calandra identified in cross examination, that risk is speculative. Mr Buckley his opinion as being "somewhere in-between" Mr Wilkie and Mr Calandra, accepting that it was "completely possible...to remove decking carefully with minimal risk, not no risk...completely possible, but absolutely inherent risk" (T:26/6/24:P 97: L 1-21).
Mr Wilkie's opinion regarding the risk of damaging the membrane is made in the context of his belief that battens are sufficiently unsound that they cannot support decking boards being attached to them, and need to be replaced.
In essence, Mr Wilkie opines that battens need to be removed because they cannot support new decking boards being affixed to them. In his view, when you remove the battens the membrane protecting the concrete slab will be punctured ('pop like a balloon') and the whole membrane must be replaced.
However, Mr Wilkie's opinion on the condition of the battens is not detailed by any extensive invasive investigations.
In his report of 8 November 2023, Mr Wilkie had removed some decking boards and viewed and photographed 1 batten (pp 15- 16 of the report; Court Book p 1223, with larger photographs at pp 57-58 of the report (Court Book pp 1264-1265).
Mr Wilkie's comment about the one batten he inspected (which was located in the uncovered area of the balcony deck proximate to the Owers-Brown lot) are brief. Although he refers to the substrate area being "damp to all areas that could be viewed," his specific comment regarding the batten viewed is as follows (p 16 report; Court Book p 1223):

[288]

Mr Buckley stated (at T: 26/6/24; P 37; L 48-50 and the following page) that Mr Wilkie's comment that battens were "soft to touch" was a "concern", but that was not show up in the photographs.
The debate about whether battens were "soft to touch" and whether one or more of them were not sufficiently structurally unsound that they could not support replacement decking boards and needed to be removed was revisited towards the end of joint expert evidence at the hearing on 26 June 2025. The relevant passage is T: 26/6/24: PP 74-75.
Mr Calandra again stated that, in his opinion, the battens were sufficiently structurally sound for replacement decking boards to be attached. Mr Wilkie remained of the opinion they were not.
Mr Buckley, in an entirely fair and balanced way, said the issue was not straightforward. He stated that he had not seen any evidence that battens require replacement, but that Mr Wilkie's "recollection" that battens were "soft to touch" was a "concern." He accepted that if a batten is "soft to touch" it is not structurally sound.
Mr Calandra and Mr Buckey agreed that it would be prudent for a builder undertaking decking board replacement to inspect the battens and form their own view about the structural integrity of the battens after the decking boards were removed.
The conundrum is that, in my view, Mr Wilkie's evidence about battens being "soft to touch" was vague. His expert report did not clearly state that he had inspected a number of battens and they were "soft to touch" is not set out in his report referred to previously in this decision. There is only photographic evidence of a section of one batten, and Mr Wilkie stated that "although only a small area could be observed, the batten appeared to have no deterioration."
The applicable principles regarding factual findings are well established, and emanate from the High Court decision in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-362. As Gordon J stated in Re Day [2017] HCA 2; (2017) 340 ALR 368 at [15] and [18] (citations omitted):

[290]

Ultimately, I am not persuaded that there is sufficient evidence to find that any battens are currently sufficiently structurally unsound that they cannot support replacement decking boards and need to be removed. Mr Wilkie's evidence on this issue is not sufficiently detailed, when considered in the context of Mr Calandra's evidence and Mr Buckley's evidence. I accept that it is possible one or more of them are structurally unsound, but that rises no higher than conjecture.
There is not sufficient evidence to draw an inference that battens need to be replaced in the course of replacing decking boards.
I accept that there is evidence from all experts that the timber decking system installed by the builder has deficiencies in respect of ventilation, drainage and access. However, the evidence of the experts on the deficiencies generally does not obviate from the critical factual finding as to whether Owers-Brown and Nakkan have provided sufficient evidence that battens are currently sufficiently structurally unsound that they need to be replaced.
I also accept the evidence of Mr Calandra and Mr Buckley that the timber decking in the covered areas is not in a state of significant deterioration.
Further, the Tribunal has to make factual findings in the context of the applicable legal test under s 106(1) and (2) of the SSM Act. As the authorities of Thoo and Glenquarry state, if it is a fixture and replacement of the fixture is sought, the Tribunal has to be satisfied that the fixture has gone past the point of being able to be repaired; and otherwise, the keeping of common property in a state of good repair (including preventative maintenance) is constrained by the concept of reasonable necessity. It is not the "optimal" repair, but the repair that is the minimal necessary to comply with the duty under s 106(1) that is the focus of the enquiry.
In submissions and at the hearing, Counsel for Owers-Brown referred to an apparent concession by Mr Calandra that battens needed to be replaced in joint expert reports that predated the final Joint Expert Report.
The Tribunal has referred to the difficulties in getting the experts to prepare a concluded and concise joint expert report previously in this decision. Contrary to the submissions of Owers-Brown and the owners corporation, the Tribunal does not propose to explore, or make findings about, why there were difficulties.
The submissions of Owers-Brown and the comments of Owers-Brown's Counsel at the hearing on 26 June 2024 about Mr Calandra having previously made a "concession" that battens must be replaced in earlier joint expert reports did not clearly take the Tribunal, nor Mr Calandra, to that purported concession, or explored any proposition with Mr Calandra that the opinions he had expressed in the final Joint Expert Report or during oral evidence at the hearing.
In the Court Book, three purported joint expert reports are included. One is from 3 June 2024; one is from 4 June 2024, and the final Joint Expert Report (the comprehensive document where experts have addressed the questions posed by the Tribunal and prepared a Joint Scott Schedule) is dated 11 June 2024.
The report of 3 June 2024 was not signed by Mr Wilkie, and does not incorporate his opinions. It is signed by Mr Calandra and states Mr Buckley "agreed by phone call and email."
That document contains a Scott Schedule, and there are two options for repair. The extent of the repairs is not replacement of the whole decking system as opined by Mr Wilkie. Rather, it is based on the opinions of Mr Calandra and Mr Buckley regarding the extent of decking boards that need to be replaced, which is primarily in the uncovered areas (unlike Mr Wilkie who asserts there is extensive damage in the covered areas as well).
In the report of 3 June 2024, options 1 and 2 are similarly quantified (approximately $18,500 for Lot 3 and approximately $15,500 for Lot 4). Option 1 involved "timber battens to remain as is" with "minimal replacement of any rotten battens" Replacement timber decking would be used that would have to be milled and stained so the replacement boards would be as close as possible to the remaining boards.
The report states (in respect of Lot 3, with similar comments about Lot 4):

[297]

All experts agreed (and it is self-evident) that the concrete slab needs to remain adequately waterproofed. If not, there will likely be damage to the common property that will expose the owners corporation to further liabilities, including potential liability for damages under s 106(5) of the SSM Act.
Mr Calandra's view was that removal and replacement of battens can be done in a manner that provides adequate waterproofing to the slab without undue compromise of the waterproofing membrane. That is on the basis that there is no or minimal removal of battens. As is made clear by Mr Calandra in the final Joint Expert Report, if there is removal of a significant number of battens then additional significant waterproofing measures need to be taken.
Mr Calandra asserts in the final Joint Expert Report that this involves new waterproofing membrane being "joined" to the existing membrane. However, he also acknowledges that if that needs to occur, a design practitioner under the DABP Act would be required to first create a scope of works (p 20 final Joint Expert Report; Court Book p 1791).
During cross examination, there was some limited attempt by Mr Calandra to distinguish between the substrate and the membrane. However, that needs to be considered in the context of what Mr Calandra asserted in the final Joint Expert Report.
In this regard, I accept that the substance of Mr Wilkie's and Mr Calandra's evidence is that if substantial damage to the waterproofing membrane occurs in the course of replacing battens, it will be necessary for there to be a design performed by an accredited designer under the DABP Act before works are done to ensure the slab is adequately waterproofed.
However, as discussed previously, the Tribunal is not satisfied that there is sufficient evidence to conclude that any battens need to be replaced. The speculation that they may have to be replaced and the waterproofing membrane may be damaged is not sufficient for the Tribunal to conclude that it is reasonably necessary to replace battens and that the replacement of battens means that the waterproofing membrane will be compromised to the extent that the membrane needs to be replaced (in whole or part).
In those circumstances, it would be prudent for the owners corporation to conduct further expert investigations when the damaged decking boards are removed, and before they are replaced, to ascertain whether the waterproofing membrane of the slab so that the owners corporation ensures compliance with its duty under s 106(1) of the SSM Act.
The Tribunal has referred previously to the potentially expensive ramifications to the owners corporation if the concrete slab allows water ingress.
However, Owers-Brown and Nakkan have failed to establish that, in replacing decking boards, it is reasonably necessary that the waterproofing membrane of the slab be entirely replaced, or the consequential works that would flow from that (which, according to Mr Wilkie, means the whole decking system needs to be removed and replaced).
Ultimately, depending upon further assessment of the condition of the battens and whether replacement of the waterproofing membrane is necessary to ensure the slab remains adequately waterproofed, it may be necessary for the owners corporation to perform further works to achieve compliance with the duty of the owners corporation under s 106(1) of the SSM Act. It would be prudent for the owners corporation to undertake such an assessment using an appropriately qualified expert (or experts).
However, the Tribunal is not satisfied that the evidence is sufficient for the Tribunal to make an order that such an assessment be performed, or that it could formulate an order that achieves the degree of specificity required to satisfy the principle set out in Glenquarry.

[307]

Before referring to the appropriate remedial orders (scope of works) for the owners corporation to repair the timber decking that has fallen into a state of disrepair, it is appropriate to refer to an immediate difficult with the orders sought by Owers Brown and Nakkan, even if the Tribunal had accepted the evidence of Mr Wilkie that the whole decking system needs to be removed and replaced.
Mr Wilkie's own evidence is that, because such works would involve external waterproofing works, prior to any work being performed a design would have to be engaged. In Glenquarry Parker J made clear that any remedial orders under ss 232 by reason of breach of s 106(1) or (2) of the SSM Act must be clear, unambiguous, and certain. Ordering an owners corporation to get an expert report or investigation and then do unspecified work that is based on that report, is not appropriate.
If the Tribunal were satisfied that the entire decking system needed to be removed and replaced, based on the principles in Glenquarry and the opinion expressed by Mr Wilkie, the extent of its order would have been the owners corporation engage a suitably qualified designer under the DABP Act to provide a report and design to the owners corporation for the removal and replacement of the decking system. It would not have ordered, as Owers-Brown and Nakkan seek, to replace the decking system based upon the design, irrespective of Mr Wilkie proving a scope of works. As discussed previously, the missing piece of Mr Wilkie's report is a design from a qualified designer under the DABP Act.
Ultimately, this issue does not arise because the scope of works the Tribunal regards as reasonably necessary is based primarily upon the 'Option 1' scope of works set out in the Joint Report dated 3 June 2024 signed by Mr Calandra and agreed to by email by Mr Buckley, although taking into account the additional areas identified in the document of Mr Buckley "Markup of the plans showing the location of boards previously identified as requiring patching with reclaimed boards" (p 39 final Joint Expert Report; p 1810 of Court Book). The work order of the Tribunal incorporates (a) that PVC decking boards are appropriately used; and (b) as best it can, the issues that will arise if rotten battens are discovered.
The proposed scope of works set out in the closing submissions of Counsel for the owners corporation is also not helpful, lacking detail. The Tribunal must craft the appropriate orders as best it can from the expert evidence.
The Tribunal regards 3 months as an appropriate period to perform the works.
It should be noted that if the parties agree to vary the orders to perform repairs by consent, that can be done under Regulation 9(1)(a) of the Civil and Administrative Regulation 2022 (NSW). Otherwise, the Tribunal must do its best to formulate final orders; and if there are further disputes they may be dealt with by way of fresh Tribunal proceedings (if appropriate). The Tribunal has previously referred to the provision of s 80 of the NCAT Act regarding an internal appeal.

[315]

There are a number of flaws in the claim by Owers-Brown and Nakkan that the owners corporation should pay legal costs and disbursements incurred by them as damages under s 106(5) of the SSM Act which are "reasonably foreseeable" loss caused by the owners corporation's breach of ss 106(1) and/or (2) of the SSM Act.
First, neither Owers-Brown or Nakkan have provided any evidence of the costs and disbursements incurred which they claim as damages. On this issue, Owers-Brown submits that she should be awarded the costs and disbursements incurred by her up to the date she commenced proceedings. However, the Tribunal cannot simply make a declaration that the owners corporation pay some unspecified amount to Owers-Brown and Nakkan. It is incumbent upon any party seeking damages to provide sufficient evidence to establish loss (McCrohan v Harith [2010] NSWCA 67 at [118]- [126] and the authorities discussed therein). No evidence has been provided to quantify what are the alleged damages, which is a sufficient reason to dismiss the claim for damages.
Further, there is a fundamental issue that the Owers-Brown and Nakkan submissions fail to address. There is a distinction between "costs of, and incidental" to legal proceedings (which are bound by the provisions of s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act)) as modified (if applicable) by r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) and damages recoverable under s 106(5) of the SSM Act. The distinction between costs and damages is well established (see, for example, G.E. Dal Pont 'Law of Costs' 5th edition pp 185-188 at paras [7.21]-[7.23]).
The distinction was discussed in the Appeal Panel decision of The Owners - Strata Plan No 21563 v Rutherford [2023] NSWCATAP 326 (Rutherford). Rutherford involve whether costs of a pre-litigation mediation could be recovered under s 106(5) of the SSM Act. Although the decision partly involved consideration of Reg 60 of the Strata Schemes Management Regulations 2016 (NSW), the reference to the principles regarding the distinction between "damages" and "costs" remains apposite.
The Appeal Panel (with discussion of applicable legal authorities at [53]-[94]) stated (at [52] and [95]-[97]):

[327]

The owners corporation could have registered the By-law. Had it done so, the Tribunal would have had to consider the claims by Owers-Brown and Nakkan that the meeting was not validly held (s 24 of the SSM Act) and/or the By-law was harsh, unconscionable or oppressive (s 150 of the SSM Act).
However, in circumstances where the By-law was not registered in accordance with s 141(3) of the SSM Act, there is no By-law to invalidate under s 150 of the SSM Act, and no utility in considering whether it was passed in circumstances where there was allegedly non-compliance with the provisions of the SSM Act and its Regulations such that it should be invalidated (see the discussion of the relevant principles in Harris v The Owners-Strata Plan No 34056 [2022] NSWCATAP 111).
The application for orders under ss 24 and 150 of the SSM Act was withdrawn at the hearing. It was the Tribunal who raised the issue of s 141(3) of the SSM Act with Counsel for Owers-Brown (T: 10/11/23: P3 :L44-48). Ultimately, Counsel for Owers-Brown stated that Owers-Brown withdrew the s 150 application, but "reserved her rights" if a resolution was passed in the future (T:10/11/23: P 14: L 18-25). There was no reference to the s 24 application being withdrawn at the hearing, but the submissions of Owers-Brown clearly indicate the applications are not pressed. It is unnecessary to explore the position of Nakkan, because throughout the proceedings there was no material departure by Nakkan from the position of Owers-Brown.
In respect of the submission by the owners corporation that it should be "relieved" of its "undertaking" that the By-law would not be registered, there are a number of flaws.
Firstly, the owners corporation never brought its own proceedings in the Tribunal. It has only raised this issue in response to the proceedings by Owers-Brown and Nakkan.
Secondly, there is no evidence pointed to that this was a formal undertaking to the Tribunal. There are circumstances where the Tribunal has the power to make orders regarding undertakings (see, for example, CCS 251 Elizabeth Street Sydney Pty Ltd v Hellenic Club Ltd [2016] NSWCATCD 88 in respect of the 'usual undertaking as to damages' in retail lease interim orders). However, all the owners corporation refers to is an "undertaking" not to register the By-law until the proceeding have concluded to another party. It is noted that at the hearing, Counsel for Owers-Brown referred to the "undertaking" being given to Nakkan, not Owers-Brown. There is no documentary evidence referred to by the owners corporation that shows the "undertaking" or its terms.
As discussed previously, the Tribunal has no general power under the SSM Act to make a declaration. It's only powers regarding declarations are those the subject of specific provisions of the SSM Act. Even if the Tribunal had the power to make an order under ss 232 and or 241 of the SSM Act to "relieve" the owners corporation from its "undertaking" to another party (which is a vexed issue, and the written submissions of the owners corporation to not refer to any legal authorities that clearly support the proposition that the Tribunal has the power to make such an order), there is no utility in making such an order.
In simple terms, the owners corporation chose not to register the By-law. It now cannot be registered. The owners corporation would have to call a fresh general meeting and pass a fresh By-law. It is entirely a matter of speculation as to whether it will do so, and if it did, whether that By-law would (if registered) be the subject of challenge under the SSM Act.

[329]

The Tribunal is satisfied that it makes a costs order in this decision, and if any party seeks to vary that order, it can do so. This has been an approach taken by the Tribunal and Appeal Panel in a number of matters (e.g. Wells Group Pty Ltd v Betts [2025] NSWCATAP 70).
The Tribunal is not satisfied that this is a type of proceedings where r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) applies (The Owners-Strata Plan No 63341 v Malachite Holdings Pty Ltd [2018] NSWCATAP 256). Although Owers-Brown and Nakkan sought damages under s 106(5) of the SSM Act in respect of legal costs and disbursements, the amount was unquantified in any pleading or submission, and there was no evidence provided to quantify loss. The Tribunal is not satisfied the amount "claimed or in dispute" in the proceedings exceeded $30,000, irrespective of the evidence of Mr Wilkie that the cost of repairs may exceed $100,000 (although this was speculative in the sense that Mr Wilkie also stated that a design by an appropriately qualified person under the DABP Act was required before rectification works could occur).
Even if the Tribunal was wrong in that conclusion, and r 38 of the NCAT Rules applied, the parties have had substantial successes and failures on different issues. If the provisions of s 60(1)-(3) of the NCAT Act did not apply, and the Tribunal was considering the issue of costs under 'common law' costs principles, the Tribunal would be satisfied that the appropriate order would be each party bear its own costs: Hogan v Trustee of the Roman Catholic Church (No 2) [2006] NSWSC 74 at [40].
For any party to be awarded costs, the Tribunal must be satisfied that there are "special circumstances" under s 60(2) of the NCAT Act, taking into account the matters in s 60 (3) of the NCAT Act.
The principles applicable to ss 60(1)-(3) are well established (see, for example, The Owners-Strata Plan No 63731 v B & G Trading Pty Ltd (No 2) [2020] NSWCATAP 273). The Tribunal needs to be satisfied (a) there are special circumstances; and (b) those special circumstances are sufficient for the Tribunal to exercise its discretion to depart from the usual principle under s 60(1) of the NCAT Act that each party pay its own costs.
In this matter, the parties had arguable positions on most of the claims and defences. Some of the claims and defences of the parties were not obviously strong (or not pursued), such as the issues involving the claim for s 106(5) damages; the operation of s 106(3); and the owners corporation being relieved of its 'undertaking'. Further, just as the owners corporation failed in its argument regarding the timber decking being lot property, Owers-Brown and Nakkan failed to obtain the order they were seeking regarding replacement of the timber decking; and also failed to adequately grapple with the issue that their own expert asserted his scope of works could not be actioned until a design was performed under the DABP Act.
The proceedings were lengthy and complex. However, the parties contributed to this and bear equal responsibility. The parties each sought to canvass a significant amount of lay evidence and cross examine lay witnesses, when the critical issues for determination involved (a) whether the timber decking was common property; (b) whether the duties under s 106 (1) or (2) of the SSM Act were breached; and (c) if so, what were appropriate remedial orders in respect of the condition of the common property.
As well, the time taken to conclude the proceedings was extended by the failure of the experts to adequately confer and prepare a Joint Expert Report until the final Joint Expert Report. Responsibility for that delay does not fall solely at the feet of one expert or one party.
If any party seeks to vary the Tribunal's cost orders it may do so, in accordance with the procedural orders made.

Owers-Brown v The Owners-Strata Plan No 92562; Nakkan v The Owners-Strata Plan No 92562 [2025] NSWCATCD 67;

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Judgment (345 paragraphs)

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