1. The only lay evidence was in two witness statements filed by Savers - one by Ms Leah Danials and the other by Ms McMaster. The 210 Landlords elected not to cross-examine Ms Danials and Ms McMaster, and in the absence of any challenge to it, I accept their evidence.
2. Ms McMaster has been the managing director of Savers, a wholly-owned subsidiary of the American company, Savers Inc, since October 2004. Ms Danials has worked at the premises since April 2007 and has been the store manager since January 2010.

1. Savers and the 210 Landlords agree that the 210 Landlords leased their portion of the premises to Savers for five years commencing on 1 March 1998. There have been two renewals, each of five years. The second lease was formalised in a document entitled "renewal of lease" dated 1 February 2004 and expressed as commencing 1 March 2003. The third, being the current lease, commenced on 1 March 2008. It came into existence when Savers exercised the second of three options under the 1998 lease on that day. I accept the evidence of Ms McMaster that Savers and the 210 Landlords have not executed the 2008 lease.
2. Although the option was exercised for the 2008 lease, Savers and the 210 Landlords continued to negotiate the terms after commencement, as demonstrated by correspondence between the parties. The negotiations included matters concerning the roof. The correspondence annexed to Ms McMaster's witness statement includes the following:
   1. An e-mail of 21 June 2008 from Mr Whiting, a lawyer at Savers Inc to Mr Alter, solicitor for the 210 Landlords, offering first year rent of $205,000 and saying of the roof:

NOW THAT WE KNOW THE COST OF RESOLUTION: We expect the Landlord to pick up the cost of the entire roof report of estimated to be $125,000. [sic]

1. An e-mail of 5 July 2008 from Mr Alter to Mr Whiting saying:

The rent negotiations appear to be going no where. Accordingly we require that a valuer be appointed to determine in accordance with the lease.

Please note that we are advised by the Owners Corporation that the roof has been repaired and they are in the process of installing four overflow pipes in the gutter.

1. An e-mail of 8 July 2008 from Mr Whiting to Mr Alter saying, among other things:

As to the roof repair: My understanding is that the roof repair, would in essence [be] a replacement, encompassing major effort and funds, upwards of over $100,000. It does not seem possible in the time sense I provided you this information that an adequate replacement/repair has been performed.[sic]

1. Another e-mail from Mr Whiting to Mr Alter of 18 July 2008 which included:

Roof: I have spoken with our management in Australia and they do not believe any major repair or replacement of the roof has taken place. Please forward all invoices showing the work recently done on the roof, to my attention.

1. Savers and the 210 Landlords agree that the premises are retail premises within the meaning of section 4 of the RL Act and that the RL Act applies to the second and current leases.

1. Clause 2(b) of the 1998 lease provides, as the second of two terms under the heading "Quiet Enjoyment":

The Lessor shall be responsible for maintaining the building in good repair and condition including its structural integrity and ensure that the roof and drainage system are maintained.

1. The 2003 document headed "Renewal of Lease" included at clause 1:

... the Lessor at the request of the Lessee hereby demises unto the Lessee subject to the covenants, conditions, power and provisos contained in the Original lease but amended as set out in the terms of this Deed all of the leased premises ... [Emphasis added]

1. On 20 April 2009 Savers applied to the Office of the Small Business Commissioner for mediation to attempt to resolve various matters in dispute between itself and the 210 Landlords. At the mediation, heads of agreement were signed between the parties that included:

1(a) The [210] Lessors must pay to the tenant $57,500 in full and final settlement of:-

(ii) cost of repairs to the roof of the lease premises up to and including 15 July 2009;

(c) Within 120 days the [210] Lessors must undertake at their own cost and expense all necessary and proper repairs, alterations, additions and improvements to the roof of the leased premises and otherwise comply with clause 2(b) of the lease.

(d) Until such time as the [210] Lessors have complied with clause (c) above the tenant will notify the [210] Lessors in writing of any issue[s] which relate to or concern the state of repair and condition to the roof of the leased premises. [Communication to be with Mr Robert Cukierman]

(e) The [210] Lessors must, within a reasonable period of time after receipt of notice of the kind referred to in clause (c) above, effect all necessary and proper repairs, alterations, additions and improvements to the roof of the leased premises as may be reasonably required to ensure that the roof is in good order and condition. The [210] Lessors must bear all costs and expenses to comply with this clause (e).

(f) If the [210] Lessors fail, refuse and/or neglect to effect all necessary and proper repairs to the roof of the leased premises within a reasonable period of time after receipt of the notice ... the Tenant may, in its absolute discretion (after written notice to the [210] Lessors) effect all necessary and proper repairs, alterations, additions and improvements to the roof of the leased premises as may be reasonably required to ensure that the roof is put in good order and repair. The [210] Lessors must reimburse the Tenant the cost and expense of all such repairs, alterations, additions and improvements undertaken under this clause (f).

1. Save as provided for in clause (1) of the Heads of Agreement, the [210] Lessors and the Tenant acknowledge and agree that the lease remains in full force and effect.
2. To the extent of any inconsistency between the terms of the lease, and this Heads of Agreement, the terms of this Heads of Agreement will prevail.
3. The Heads of Agreement were signed by Mr Robert Cukierman on behalf of the 210 Landlords, in his capacity as manager, and by Ms McMaster for Savers. At paragraph 50 of her witness statement, Ms McMaster said that those present at the mediation for the parties were Mr Zukierman[1] (this could be an error as Mr Robert Cukierman signed) and Mr Alter for the 210 Landlords, and herself, with Mr Peter Lucarelli and Ms Nicole Malone of Baker & McKenzie solicitors.
4. Ms McMaster stated at paragraph 52 of her witness statement that she received an e-mail from Mr Robert Cukierman on behalf of the 210 Landlords on 2 September 2009, confirming that pursuant to the heads of agreement, the roof repairs had been completed. According to Mr Cukierman's e-mails to Ms McMaster, the work was undertaken by Fahey Plumbing.

1. At paragraph 7 of the amended points of claim Savers pleads clause 2(b) of the lease and pleads further:

"building" means "the building of which the demised premises forms part"...

1. The 210 Landlords admit this paragraph, subject to each of the leases being taken to provide as set out in s52 of the RL Act and

the demised premises comprise that part of the building falling within the boundaries of unit 2 as set out above.

1. Savers and the 210 Landlords agree that they entered an agreement dated 15 July 2009 which required the 210 Landlords to undertake roof repairs, although the 210 Landlords plead that it must be read:

... subject to s52 of the Act, strata plan 026183R and the terms of the current lease ...

1. Similarly to the claim against the 210 Landlords, Savers pleads that there was a lease, two options were exercised and the lease contains an obligation to repair as follows:

The Lessor covenants to maintain the Premises in a structurally sound, waterproof and windproof condition, including, without limitation, maintaining all gutters and drainage systems servicing the Premises.

1. Savers also pleads s52 of the RL Act and breaches requiring rectification work to the value of $165,886.
2. Ms McMaster described her exchanges with Mr Mujedinovski of the 196 Landlord at paragraphs 84 to 91 of her witness statement. At paragraph 85 she said:

... Mr Mujedinovski ... has generally stated that it is the responsibility of the [Owners Corporation] to maintain the roof and effect repairs, and that as he does not have a controlling vote on the [Owners Corporation], he is not able to force the [Owners Corporation] to undertake the work required to rectify the issues with the roof and the water leaks.

On 18 February 2011, Mr Mujedinovski called me and indicated that he would be replacing the rotten window frame at the front left of the Dandenong store. He also stated to me that in any appearance in relation to the present Proceeding, he would state that the roof should be replaced and he believed that the other landlords and the [Owners Corporation] should be ordered to do so. Mr Mujedinovski also told me that he would comply with a court order in relation to the roof at the Dandenong store.

1. Contrary to order 6 of 26 November 2010, the 210 Landlords did not file and serve points of claim against the Owners Corporation by 20 December 2010. Instead, their solicitor, Mr Alter, wrote to Mr Wells of Victorian Body Corporate Services (the Owners Corporation managers) on 17 December 2010 to notify him of the fact of the Owners Corporation's joinder to the proceeding.
2. On 23 December 2010 solicitors for Savers wrote to Mr Alter complaining of an alleged breach of the orders by the 210 Landlords and stating that Savers would object to late serving of points of claim by the 210 Landlords against the Owners Corporation.
3. On 1 April 2011, the Friday before the Monday on which the hearing was due to commence, the Tribunal received an urgent facsimile from solicitors for the Owners Corporation seeking a copy of the amended points of claim.
4. The Owners Corporation was represented by Mr Simon of Counsel for some of the hearing, but played very little part. Mr Simon attended on the morning of the first two hearing days and after lunch on the final day. His only submission was that the Tribunal should make no order against his client.
5. I undertook to provide reasons and have the parties return on another day to enable appropriate orders to be made. I said that my inclination would be to make any orders for work to be done against Landlords, noting that the Owners Corporation agreed to be bound by the orders and in particular that it would not obstruct access to areas requiring work. My current view is that any order for works should be directed to the Landlords, either for them to undertake the works or to ensure that such works are undertaken.

1. The evidence of Ms Danials, confirmed by my own observations on site, is that the street frontage is to Lonsdale Street on the west side. The sales area occupies about three quarters of the area of the premises, with a training room in the south west corner and toilets, a store room and staff room to the north east. The production room occupies slightly less than a quarter of the area and is on the east side. Exhibit 1 to Ms Danials' witness statement is a plan of the premises. It is a schematic representation of the layout of the premises, rather than a scaled drawing. The plan shows an exit approximately half way along the west boundary, with an external foyer to the exit protruding approximately 2 meters into the premises.
2. As agreed by the parties at the site inspection, the area of the premises owned by the 196 Landlord is the four-sided south west corner. It comprises about one quarter of the area of the premises. The northern side of the 196 portion of the premises runs along the north side of the exit foyer and extends west for a total of 13.1 meters. The boundary between the 196 and 210 portions then runs south to meet the southern boundary of the premises.
3. Although not entirely consistent with Savers pleadings, in the hearing Savers and the 210 Landlords have both described the roof as areas 1 to 4. They are as follows:
   • Area 1 - the western awning. This roof is cantilevered over the footpath on the west side of the 210 portion of the premises, with a small area to the west of area 4 at the northern end. It is tray decking running east-west.
   • Area 2 - the main pitched roof. This is most of the roof over the 210 portion. It is clad in galvanized corrugated iron. It is to the east of area 1. The whole of this roof includes the roof of the shop immediately to the north of the premises, and is of five shallow pitches, each of about a meter high. The roof of the 210 portion is four of the five pitches, including five valley gutters, which run east-west. The valley gutters are higher than the area 1 roof by, perhaps, a meter. On the west side of the main pitched roof is a metal parapet less than a meter wide and about 500mm higher than the peaks of the pitches.

The valley gutters are each divided into four segments. I understand there are down-pipes at each divider, but my attention was only drawn to the double down pipes approximately at the mid point of the valley gutters.

• Area 3 - the main flat deck roof. It is the remainder of the 210 roof and is the south-east part of the 210 portion. The northern edge of this roof is a continuation of the line to the north of the 196 portion of the premises. It is clad with tray decking that falls, very slightly, to the north. It appears to be a little higher than the ridges of the area 2 pitches.
• Area 4 - the 196 roof. This roof is in two parts. There is a continuation of the Area 3 roof for slightly more than half, then a step down of about a meter to what might originally have been a cantilevered verandah roof. The west side of this roof appears to end at the western wall of the 196 portion of the premises. It is horizontally in line with Area 1 and also is clad with tray decking running east-west, although of a different profile.

There is a line of west-facing highlight windows of around 700mm high at the step-down.

1. Annexed to the amended points of claim are a schedule of defects and a schedule of rectification works each for the 210 Landlords and the 196 Landlords. In the prayers for relief against the 210 Landlords and 196 Landlords, Savers seeks orders that the relevant landlords undertake works relating to their respective schedule of rectification works. I reproduce the relevant parts of the schedules of rectification:
2. For 210 Lonsdale Street:

*As corrosion is beyond repair or reseal, roof sheeting is to be replaced

* Box gutter, wall cladding and flashing to be replaced

* Downpipes to be reinstalled to original size of 100mm-150mm

* Levelling of the building and computer levelling

*Further fees will be incurred if any bearer or floor joist needs to be replaced

* Remove and replace cappings, flashings, box gutter, wall cladding and roofing

*Remove and replace cappings, flashings, box gutter, wall cladding and roofing

1. Exhibit 2 to Ms Danials' witness statement is a copy of the premises plan with the leaks indicated by the letters "A" to "U". This document is also page 112 of the Tribunal Book. I accept her evidence that leaks with the same letters were observed by her on the same day. Some locations have leaked repeatedly.
2. The "A" to "F" leaks occurred before Ms Danials was promoted to store manager. She has not given evidence about precisely when they occurred, although she stated that leaks B and C occurred in 2008.
3. Ms Danials identified 13 separate sites of leaks in the 196 portion and 10 in the 210 portion. Five of the leaks in the 210 portion are in line at the north end of the premises, running north-south, roughly down the middle. On site, she identified them as being associated with the columns through which the down-pipes run. She identified two of the 210 portion leaks as occurring on five separate occasions. One of the 196 leaks had re-occurred seven times, and another, eight times.
4. Ms Danials stated that she has kept a log or diary of leaks since 27 November 2010. In that time, she observed leaks "J" to U", the latter occurring on 19 February 2011. At the site inspection she identified a new leak at a column just west of the cash registers on the west side of the 210 portion.
5. Apart from the leaks associated with columns, the only other leak sites in the 210 portion are:

1. from a large air-conditioning vent in the ceiling, roughly in line with the column leaks but approximately one quarter of the distance from the south wall to the north. These leaks are marked JNS which indicates that the last recorded leak was on 4 February 2011. 2. near the entrance to the small office in the production area. This leak is marked B, and although Ms Danials stated that the leak occurred intermittently, the last time she noted it was in 2008.

1. at the loading dock on the east side of the production room and marked Q. The leak was on 11 January 2011.
2. Tribunal Book page 112 does not match the leaks to the roof areas, which is critical in the 196 portion of the premises. The diagrammatic representation indicates that 7 of the 12 leaks are (or were) in the awning area, in five sites since Ms Danials commenced her leak log on 27 November 2010. One frequent leak site seems consistent with leaks from the highlight windows and is marked NGJPQRS. One leak is at the east register of the large air conditioning vent referred to above at paragraph 39a, and the leaks occurred on the same days. The remaining four leaks are near the door from the sales area into the training room at the south-west corner of the premises and all seem to be below the upper part of the 196 roof.

1. At paragraph 23 of Ms McMaster's witness statement she stated:

Savers first experienced problems with water leaking from the roof of the Dandenong store in or around January 2000.

Although this evidence cannot have been based on her own observations because Ms McMaster did not commence working for Savers until 2004, it is unchallenged and I accept it.

1. Ms McMaster stated that there were leaks in or around early 2007, discussions with Mr Zukierman on behalf of the 210 Landlords and after "several months without action" from the 210 Landlords, Savers engaged Fix-Rite Plumbing Services Pty Ltd ("Fix-Rite") to inspect and ultimately to repair. She exhibits invoices from Fix-Rite to her witness statement that show Savers was charged $3,030.11 for this work.
2. At paragraph 37 Ms McMaster stated:

In or around early 2008, due to the ongoing problems with water leaks that Savers was experiencing ... [it] engaged Fix-Rite plumbing again to inspect the condition of the roof and assess what repairs were required to prevent further leaks from occurring.

1. Ms McMaster does not provide a date for this leak. However she stated at paragraph 38 that the 210 Landlords' solicitor, Mr Alter, sought a copy of the report on 5 March 2008. It is therefore reasonable to assume that the leaks leading to a request for inspection and the provision of the report were noticed before 1 March 2008; the day upon which the 2008 lease commenced.
2. At paragraph 41 Ms McMaster referred to Fix-Rite's report of 20 May 2008, where, she said, they:

... quoted an amount of $125,000 to replace the roof.

1. Fix-Rite's report, by Mr TJ Wray, director, is at pages 92 and 93 of the exhibit to Ms McMaster's witness statement. It is also Savers' tendered exhibit A4 - the latter includes photographs referred to in the report. The covering letter of the report (page 92), excluding the formal parts, is:

A very broad estimate of costs of roof replacement would total approximately $125,000.00 plus GST, subject to the condition of the underlying fixing battens etc. which cannot be determined until the existing roof is removed.

The following report lists details of the photographs on the enclosed photo CD and works required.

The photos supplied show the general condition of the Savers Dandenong Store top roof area. You will notice quite a lot of rust present in [different] sections. The rust penetration through the base material is at various stages on various sections of roof shown.

Note: It is unfortunate that this decking is no longer available.

These show the rust present in a section of box guttering around about the centre of the store. This is in need of urgent replacement.

These show the rust present in the existing Brownbuilt decking to the east side of the building. This decking is no longer available. This may be able to be treated and coated to give it an extended life. However, some additional works will be required.

These show the front verandah and front roof areas. These roof areas are corroding and in very poor condition and flooding is occurring in heavy rain over two particular sections. Corrosion, poor design and inadequate drainage are causing a part of the problem.

These are composite photos of the corrugated iron roof to the west, some front sections and the east Brownbuilt deck roof.

The lower front roof section over the south east Exit Door area or the shoe section [of the shop] identified on the roof by Photo No 40; note this section curves down to two round down-pipes. It has no drop gutter to allow for water expansion in heavy downpours. The water most probably rises up to the lap of the roof sheeting and pours through the ceiling below.

NB: This section needs to be lifted for structural inspection purposes and if possible re-designed and re-roofed to cope with heavy rainfall. Also drain pipes need to be camered to assess if adequate for drainage.

Existing roof fixtures such as air-conditioning units and duct works, including large water and gas lines, electrical conduits and other items would need to be removed and replaced to enable re-roofing to be carried out successfully.

Downpipes and stormwater drains should be traced and camered to determine condition and if any silting has occurred over a long period of time.

1. This report is of limited assistance because Mr Wray has not used the same description of the roof as the parties and the photographs which are part of Exhibit A4 are not numbered and only 93 have been supplied, not 104. It is not clear whether Mr Wray was suggesting that the whole roof be replaced.
2. Another report, being pages 154 to 170 of the exhibit to Ms McMaster's witness statement, is by Jurcevic Roofing dated 18 February 2010 and addressed to Mr Bezauson of Savers Inc. The report recommends replacement of the area 1 roof at an approximate cost of $80,000, replacement of the area 3 and top of area 4 roof at a cost of approximately $110,000 and "some maintenance work" to the area 2 roof at the approximate cost of $15,000. Of Area 2 the report states:
   • Generally corrugated galvanised roof sheeting is still in good condition due to pitch of the roof. Box gutters at this part of the roof are undersized. Not much can be done unless entire area to be re-sheeted [with] new roof sheeting.
   • Some maintenance work required for this roof. Parts of box gutter to be replaced. Rusted flashings to be replaced. Some part of roof to be re-screwed.
3. The Jurcevic report did not comment on the work required to the internal downpipes in boxed columns, but said that further investigation is required if work is to proceed.
4. Mr Robert Cukierman's e-mail to Mr Whiting dated 14 April 2010 is exhibited to Ms McMaster's witness statement at page 174. Somewhat surprisingly, at point 3 of the email Mr Cukierman listed a number of clauses in the lease (omitting 2(b)) and concluded:

Prior to the meeting [planned for the following week] can you email which clause suggests Landlord responsibility.

4. In your email you sent a quote for roof replacement, yet no mention of roof leaking, nor has the body corporate or myself received notice of any roof leak. Is the roof leaking?

1. Mr Cukierman has a point - although the Heads of Agreement of 15 July 2009 required Savers to notify the 210 Landlords of leaks, neither Ms Danials nor Ms McMaster give evidence of either leaks or notifications between 15 July 2009 and 14 April 2010. This is also confirmed in an e-mail from Mr Wells of the Owners Corporation to Mr Cukierman of 8 July 2010, produced to the Tribunal under Summons to Appear addressed to Mr Wells of 31 March 2011. The letter includes:

We have received details from Savers (for the first time in a year or more) regarding the leaks in the roof. We will forward this to you as a separate document.

1. The correspondence between the parties between 15 July 2009 and 14 April 2010 was about the damaged fascia.
2. Exhibited to Ms McMaster's witness statement at page 207 is an e-mail from Mr Whiting to Mr Cukierman dated 12 May 2010, attaching the Jurcevic Roofing assessment mentioned above and giving the "summation of the work quoted" as $221,000. The summation includes $16,000 to repair the roof shed, which is not part of the roof of the premises, and still fails to cost repair works to the downpipes.
3. On 18 May 2010 Mr Cukierman responded, saying that "as a courtesy" the roof issue would be raised at the general meeting of the Body Corporate and warning that deductions of sums from the rent in the absence of agreement would be considered a breach of the lease.

1. Ms Danials stated that an area of the ceiling collapsed on 2 August 2010. It was in the 196 portion of the premises. From exhibit 2 to Ms Danials' witness statement it appears to be below the part of the Area 4 roof which is contiguous with the Area 3 roof, but no conclusion as to the source of the leak causing the ceiling collapse can be drawn. Ms Danials stated that a plumber arranged by the landlords or body corporate, Mr Ray Francis, attended the premises to undertake roof repairs on 3, 5, 8 and 12 August 2010. She stated at paragraph 31 of her witness statement that on 12 August 2010:

I took Mr Francis to the area within the Dandenong store which was still experiencing water leaks. Mr Francis told me, and I believe, that there was a cavity in the ceiling from which water had entered into the store. He also told me, and I believe, that he could not locate the source of the water leaks.

1. A letter from Mr Clark, engineer, of Brown Consulting (Vic) Pty Ltd to Mr Bezanson of Savers Inc dated 21 January 2010 expresses concern about stumps that have rotted, the open drain beneath the floor and the resulting humidity, and the possibility that brick piers founded in the drain might be being eroded at their mortar joints.
2. Ms Danials stated at paragraph 43 of her witness statement:

The sub-floor problems have also had an effect on the business conducted at the Dandenong store. A corner of the floor in the production room has sunk significantly and continues to sink. As a result, the swinging doors to the production room have had to be repaired more often as the brackets cannot hold them when the floor sinks.

1. I note Ms Danials' evidence that during or after rain she and her staff seek out wet and dripping areas so that they can use buckets to catch water, or mops to remove it. I note her concern for the safety of staff and customers because of slippery floors and the risk of further ceiling collapse. I note her evidence that since the ceiling collapse there has been an overpowering smell in the room in the 196 portion of the premises marked "training room" on exhibits 1 and 2 to her witness statement.

1. This aspect of the dispute between Savers and the 210 Landlords appears to have cost far more money and taken much more time than can be justified by a claim for $7,050.
2. The dispute might have been exacerbated by a lack of precise expression. There are three elements that have been damaged and the parties have referred to them interchangeably as "the sign" or "the fascia". The elements are a true fascia to the beam running along the western side of the parapet to Area 1, the hoarding on top of the parapet and the signage affixed to or painted on the front of the hoarding, the fascia and smaller signs apparently on the western face of the parapet.
3. Ms McMaster stated that Savers obtained permission from the City of Greater Dandenong ("the Council") to erect signage on the fascia of the 210 Premises. A copy of the signage permit is at pages 58 to 67 of the exhibit to Ms McMaster's witness statement. The drawing at page 63 shows the sign running the western length of the Area 1 roof and as 3,785 mm high.
4. A photograph included in the bundle tendered by Savers and marked Exhibit A4 shows that the part of the sign on the hoarding appears consistent with the part of the sign on the drawing shown to be 1,625mm high. It was supported at the back (the east side of the hoarding) by a grid of 3 steel beams running along the base, middle and top of the hoarding and at least14 steel posts. Each post was braced at right angles to the hoarding. Starting at the north end, every second post was braced by with triangular steel, the top of which joined the posts at about three-quarters of their height. The intermittent posts were braced with lighter steel sections attached closer to the tops of the posts and affixed directly onto the parapet.
5. Savers and the 210 Landlords were both sent notices from the Council dated 28 January 2010 when part of the hoarding and fascia were damaged by wind. Mr Robert Cukierman wrote to Ms McMaster by e-mail dated 2 February 2010 reminding her that there was a 28 day period for "response". He continued:

I would like to ensure there are no penalties. I presume it is an insurance claim. Can you advise.

1. In a letter dated 11 February 2010 from Brown Consulting (Vic) Pty Ltd to Mr Bezanson[5] of Savers Inc, the author, Mr Tabban, reported that 5 meters of the sign had collapsed, there was extensive surface corrosion of the remaining steel angle frames and that the remaining frame did not have the structural capacity to withstand lateral forces imposed by wind loading. He recommended urgent removal of "the entire fascia structure" or a temporary strip back of the roof capping to confirm the extent and condition of the existing structure.
2. Photographs exhibited to Ms McMaster's witness statement at pages 177 to 180 show not only the collapsed hoarding, but also damage to the narrow fascia to the timber structure, exposing the timber beneath the metal and showing an obvious breach in the weather-proofing of the roof cladding.
3. Savers acted on the Council's breach notice and arranged for Jurcevic Roofing to take down the hoarding and repair the fascia in late April 2010. The amount Savers seeks to recover from the 210 Landlords is an invoice from Jurcevic dated 19 February 2010 for "roof inspection and assessment" of $550 plus the invoice dated 27 April 2010 for "removal and disposal of sign and fascia; including all loose support framework" of $6,500.
4. According to Ms McMaster's witness statement, a number of emails passed between Mr Whiting and Mr Cukierman - Mr Cukierman said that the 210 Landlords were sending a tradesman to quote on the fascia. Mr Whiting responded that he was too late and expressed the view that the sign could not be reinstated until the roof was replaced. Mr Cukierman told Mr Whiting that the 210 Landlords would not reimburse Savers for work performed without specific consent.
5. The Owners Corporation produced a number of documents at the hearing pursuant to Savers' Summons to Appear of 31 March 2011. The documents concern a claim by the Owners Corporation on its insurers for "signs damaged in storm" and is for $6,500. The claim was lodged on 20 May 2010. There is no indication of payment or acceptance of the claim. There is an query, apparently from the insurer on 26 May 2010:

Please advise what the signs are for and who owns them.

This query was repeated to Mr Cukierman in an e-mail from Mr Wells of the Owners Corporation on 20 July 2010. Assuming that the documents produced comprise the Owners Corporation's entire file regarding this claim, the query was not answered.

1. Savers has, very sensibly, paid for demolition of the hoarding and repair of the fascia. It seems to me that if anyone has been enriched by that action, it is not the 210 Landlords but the Owners Corporation, which owns the roof. Nevertheless, I find the expenditure of $6,500 was necessary to keep the 210 portion of the premises leak-free which as between the 210 Landlords and Savers is, as I find below, the obligation of the 210 Landlords.

1. Mr Ian Johnson, building consultant, gave evidence for Savers and Mr Dalziel, engineer, gave evidence for the 210 Landlords. I refer to them collectively as "the experts". They had separately prepared expert reports and together prepared a Scott Schedule, which demonstrated that they agreed about very little. They also gave evidence concurrently. Unfortunately, the concurrent evidence shed little extra light on the matters discussed in their reports.
2. The conclusions drawn here about necessary work do not take into account whether Landlords are responsible for the work, which is further considered below. The standard adopted in considering each item is the standard described in clause 2(b) of the 1998 lease - a standard achieved by:

maintaining the building in good repair and condition including its structural integrity [to] ensure that the roof and drainage system are maintained.

1. Both experts describe an old tray-type cladding, in Mr Dalziel's words "of unknown type but similar to Lysaght 'ClipLok'. The roof falls east, towards the building, where there is a copper box gutter. I accept Mr Dalziel's observation that the fall of the roof appears to be less than 1 degree, and I accept Mr Johnson's comment regarding another area of roof, that a 1 degree fall is considered the minimum slope to avoid water ponding.
2. Mr Johnson said at paragraph 21 of his report:

The roofs to the Western Awning and Southern Flat Roof Areas need to be replaced because of the extensive and widespread nature of the corrosion that has occurred to the metal components of the roofing system. This is greater than surface rusting with perforation/holing of the metal having occurred or likely to occur in the near future in a number of locations.

1. Mr Dalziel described the roof in slightly less terminal tones than Mr Johnson and concluded:

... it is recommended that the gutter be realigned to provide a gradual fall to the downpipe pops. That all pops be checked for penetrations due to corrosion and be replaced if necessary. The veranda cladding is showing surface rusting (ie galvanised coating is deleted [sic] to a point of not offering protection to the steel). The application of a surface coating ie paint, will extend the life of the sheeting. With a regime of regular maintenance the cladding material could be extended indefinitely.

1. Although the Area 1 roof is obviously old and has been coated with an unidentified material at some stage, my attention was not drawn to "perforation/holing" in this area. My observations are consistent with Mr Dalziel's.
2. The only leaks reported by Ms Danials which are clearly consistent with a failure of Area 1 roof are the new leak behind the cash registers and the leak which occurred at C and G, respectively, in 2008 and on 27 June 2010. The new leak is consistent with Mr Dalziel's comment:

It would appear the pops installed into the copper gutter this area have been of galvanised sheet metal which have corroded due to the effect of galvanic action due to the dissimilar metals (copper and steel). The plumber advised that faulty pops have been replaced by PVC where found necessary.

1. I prefer Mr Dalziel's evidence to Mr Johnson's regarding this area of the roof.

1. I observed on site, while on the roof, that this area appears to be fairly new and in generally good condition, although there is some rusting on the ridge capping and the parapet to the west. The experts agree that the box gutters are of copper. The main area of leaking into the 210 portion of the premises as indicated by Ms Danials seems to come from the wastes and/or down-pipes from the middle divider in four of the valley gutters.
2. When inside the premises my attention was drawn to these down-pipes that appear to come from the central divider in four of the valley gutters. The experts agree that the down-pipes discharge down the centre of the columns that run in a north-south line, roughly down the middle of the north end of the 210 portion of the premises.
3. Each of these columns has two pipes discharging into it, composed of a number of pvc joining angles that, together, form pipes that wind into the columns. Mr Dalziel said, at page 3 of his report:

I was advised by the plumber that the original down pipe 'pops' were of galvanised iron. Due to galvanic action the steel pops have/had corroded which has led to water entering the retail area. It is understood that the corrosion of the pops had led to considerable water entry to occur at times of intense rain events. All but 2 of these pops have since been replaced with PVC pops, with the remaining planned to be replaced shortly.

1. No evidence was given about which pops were replaced, when and by whom. One of the leaks appears to have been cured as it is marked only D - Ms Danials has not marked it as re-occurring since she became store manager in 2010. The other three sites have each leaked three or four times in 2011. Ms Danials' first record of one of these leaks was on 17 December 2010, and another on 14 January 2011.
2. The entries in the Scott Schedule concerning the internal downpipes are, by Mr Johnson:

The internal downpipes are restricting the flow and discharge of stormwater from the roof resulting in leakage. These require replacement with downpipes to the originally installed sizes.

Only downpipe pops restricting water flow. Using the catchment area to each pop, calculation find that the position and size of down pipes are adequate. [sic]

1. There was no evidence before me as to the original size of the downpipes, referred to by Mr Johnson, or when they had been replaced although, as discussed further below at paragraph 132 it appears to be after the current lease commenced. Mr Dalziel said at page 7 of his report:

The PVC down pipes visible from the retail area connect to rainwater pops which are of a smaller diameter than the PVC pipe. As a consequence the pop is the restrictor in the system, not the downpipe.

1. I am unsure how Mr Dalziel reached this conclusion as there is no measurement for the pops in his report. Further, if all but two of the pops have been replaced, it is not clear why three are still leaking.
2. The entries in the Scott Schedule concerning Area 2 are in two parts. The first concerns the box gutters, pops and downpipes. Mr Johnson states:

Box gutter, pops and downpipes under sized under current standards. Box gutters should be replaced.

Box gutters not under sized. (refer to calculations in report) Pops may have restricted flow in past but have been replaced with PVC.

1. On the evidence before me I am not satisfied that the box gutters are undersized. If they were, the leak at "D" would probably have recurred.
2. I am satisfied that there is a serious defect in the pops and/or downpipes at positions ORSTU, RST and GLQRS, although the nature of that defect has not been made clear by the evidence of the experts. On balance I prefer Mr Johnson's evidence about the pops and down-pipes.
3. The second part of the entry in the Scott Schedule is, from Mr Johnson:

Flashings, cappings and ridge ventilators have rusted. Remedial works required in relation to these items.

Flashings exhibit surface rusted but serviceable. Recommend that remedial surface coatings be applied.

1. At pages 18 and 19 of his report, Mr Johnson attached photographs of the top of the parapet to the west side of Area 2 and commented:

... areas of flashings, cappings and gutters are rusted and/or damaged and will require replacement; ...

The separate sheet roofing to the ridge vents has rusted in many locations and these should be replaced.

1. I prefer Mr Dalziel's evidence concerning the means of treating the parapet cladding, ridge caps and ridge vents.

Area 3 - the main flat deck roof, including the higher part of the 196 roof

1. As mentioned above, four of the leaks in the 196 portion of the premises appear to be below the higher part of its roof, that is, part of the main flat deck roof.
2. The appearance of the main flat deck roof is consistent over both tenanted areas. The north-south boundary between the 196 and 210 portions of the premises is not apparent on the roof. There is little galvanizing still visible - most of this part of the roof appears rusted. Further, there are areas of this roof where my attention was drawn to holes in the roof sheeting, some in the vertical ribs as noted by Mr Dalziel, but at least one in the horizontal sheeting.
3. Mr Johnson also remarked on the poor state of the flashings and parapet cappings, being both rusty and deformed in places. He also said that the gutters and drainage are inadequate.
4. Mr Johnson's recommendation is quoted above at paragraph 74 and is to replace this area of the roof and associated drainage. Mr Dalziel recommended:

... consideration should be given to the addition of a surface coating (eg paint), Such a coating will extend the life of the [roof] by a number of years and if regularly maintained will extend the life of the sheeting indefinitely.

1. I prefer Mr Johnson's evidence concerning both the state of this area of the roof and the appropriate means of rectification.

1. As mentioned above, seven of the leaks appear to be below the lower section of the roof. Mr Johnson recommends replacement. Mr Dalziel said at page four of his report:

Rectification should include replacement of the roof cladding fastened to graded roof battens to give a greater fall [than the current fall of less than 1 degree]. The installation of flashing at the intersection with windows etc at the step in the roof levels, that provides the necessary protection against the effects of prevailing wind driven rain.

1. I accept the recommendation of both experts that this area of the roof needs to be replaced. I also note their agreement that the highlight windows leak and steps need to be taken to prevent them from leaking. As for Area 3, the gutters and drainage also need to be replaced.

1. The experts agree that damage has occurred to the ceilings in "various locations" of the premises and that remedial works are required.

1. The on-site inspection confirms that a piped drain discharges into an old brick channel at the north of the sub-floor and re-enters a pipe at the southern end. The soil between the east side of the premises and the drain is damp, especially near the drain.
2. The experts agree that the open drain should be enclosed in a pipe.

1. I note that the floor of the premises appears to be level and solid except for two areas. The first is near the roller doors and loading dock to the east of the production room, where Savers operates a fork-lift. The second is at the double-door exit between the sales area and the production room, where the floor is noticeably lower than in the rest of the premises.
2. Mr Johnson said at paragraph 40 of the report concerning the 196 portion of the lease (relating to the whole sub-floor area):

The sub-floor framing system to the building consists of timber stumps supporting timber bearers and joists. There is very little sub-floor ventilation into the space below the building. This fact, together with the moist conditions introduced by the open stormwater drain on the east side of the building result in a prevailing damp environment.

1. Mr Johnson remarked, and as was apparent on site, stumps have been installed at various times and that some of the older stumps are obviously rotting. Further, some of the newer stumps have been installed onto wooden sole-plates on the surface of the ground, many of which also show signs of rotting. Mr Johnson recommends re-stumping of the whole sub-floor.
2. Mr Dalziel's comment, at page 7 of his report is:

Rotten timber stumps have been and will be an ongoing problem for this and all other buildings where this construction material is used. ... Regular maintenance can be undertaken, from time to time, to repair obvious defects or alternatively a full restumping could be carried out. The latter is considered unnecessary as it is apparent that the majority of the floor system is performing adequately.

1. I note that neither expert has expressed an opinion about what might happen to the bearing capacity of the sub-floor soil when the drain is enclosed and the soil dries out.
2. While the need for full restumping does not seem necessary at present, the "regular maintenance" suggested by Mr Dalziel should be commenced without delay, particularly in the areas where the floor is/has been moving. Nevertheless, there was no evidence of a change in the condition of the stumps since the commencement of the current lease.

1. I observed on site that the brick piers are founded in the drain. There is no evidence of erosion of the bricks or the mortar joints. I note that the pier closest to the hole which gives access to the sub-floor is quite tall, not perfectly vertical and is topped with a substantial shim of unknown material between it and the bearer it supports.
2. I am not satisfied that any work is necessary to the brick piers at present.

1. At page 1 of "costing of schedule four rectification works" Mr Johnson allowed $350 to "replace bearers and joists as required" to which he adds margins and contingency. He did not identify specific joists and/or bearers. This comment has led to an efflorescence of disagreement between the experts in the Scott Schedule, and considerable time spent during cross examination of Mr Dalziel.
2. While I am not satisfied that there is evidence of any particular bearer or joist needing to be replaced, checking the stumps and bearers should be done when checking the stumps.

SECTION 52 OF THE RL ACT, CLAUSE 2(b) AND THE AGREEMENT OF 15 JULY 2009

A retail lease is taken to provide as set out in this section.

The landlord is responsible for maintaining in a condition consistent with the condition of the premises when the retail premises lease was entered into-

(a) the structure of, and fixtures in, the retail premises; and

(b) plant and equipment at the retail premises; and

(c) the appliances, fittings and fixtures provided under the lease by the landlord relating to the gas, electricity, water, drainage or other services.

1. This provision is given force by s94(1) of the RL Act:
   1. The Act prevails over retail premises leases, agreements etc

(1) A provision of a retail premises lease or of an agreement (whether or not the agreement is between parties to a retail premises lease) is void to the extent that it is contrary to or inconsistent with anything in this Act (including anything that the lease is taken to include or provide because of a provision of this Act).

1. Mr Aghion of Counsel for the 210 Landlords referred to My Club Pty Ltd v Samalex Nominees Pty Ltd [2008] VCAT 171 where DP Macnamara found that by virtue of s94, it was not possible to "contract out of" the covenant implied by s52.
2. Although Savers pleaded a breach of s52, Mr Best of Counsel for Savers did not rely on it at the hearing. Mr Aghion submitted that the effect of s52 is to read down both clause 2(b) of the leases and the agreement of 15 July 2009 to require the 210 Landlords to do no more than maintain the structure and fittings in a condition consistent with the condition of the premises at the commencement of the lease.
3. Mr Aghion submitted, and Mr Best did not submit otherwise, that the commencement of the lease for the purpose of s52, was 1 March 2008[6]: after design faults were built into aspects of the roof and sub-floor (with the possible exception of pops to the downpipes in Area 2), after some of the leaks were first complained of, but before the agreement of 15 July 2009.
4. Mr Aghion referred to two decisions of the Tribunal which support the view that s52 is not to be read beneficially in favour of the tenant. They are DP Macnamara's decision in Ross-Hunt Pty Ltd v Cainjan Pty Ltd [2009] VCAT 829 at paragraph 33, and my decision in Computer & Parts Land Pty Ltd v Aust-China Yan Tai Pty Ltd [2010] VCAT 2054 at paragraph 65.
5. I accept Mr Aghion's submission that s52 should not be read beneficially in favour of the tenant. As DP Macnamara said:

In my view this is not the appropriate approach to construing a provision such as Section 52. The Retail Leases Act and cognate legislation regulates the rights and liabilities between one another of landlords and tenants; it is a zero sum game. A right given to a tenant is an obligation imposed on the landlord. An immunity given to a landlord is a right removed from the tenant. The policy of a statute such as the Retail Leases Act is to draw what Parliament regards as a proper balance between the rights and liabilities of landlords and tenants in the particular area regulated by the Retail Leases Act.

1. Mr Best submitted at paragraphs 15 and 16 of his written submissions:
   1. Section 52 does not, as the lessors submit, limit the obligations of the lessors pursuant to clause 2(b) and clause 1(e).
   2. Section 52 stipulates a baseline obligation: it does not prohibit the parties from agreeing to a wider obligation of repair.
2. On one view Mr Best's submission calls for an interpretation of s52 beneficial to tenants. It is arguable that Parliament could have provided that the landlord must maintain in a condition at least consistent with the condition when the lease was entered; it did not do so.
3. On another view Mr Best's interpretation is correct. An obligation which extends rather than contradicts s52 could be regarded as neither "contrary" nor "inconsistent" with it.
4. I consider Mr Best's interpretation is correct. If the parties wish to contract for more than is provided under s52 they are free to do so. It also prevents tenants being put into a situation where they could be tripped up by technicalities where a landlord agrees to undertake repairs, but fails to do so before a lease is entered.

Section 52 and "the building" as distinct from "the premises"

1. As I understand it, Mr Best submitted in the alternative that the parts of the building which are not parts of the demised premises are not subject to s52. Quoting from paragraph 17 of his written submissions:

Section 52... is a repair covenant in respect to "the premises", that is it does not extend to that part of the "Building" including common areas (such as the roof or perhaps the sub-floor) which is not part of the premises demised to the lessee.

... as a matter of interpretation, s52(2) speaks to "the structure of, and fixtures in, the retail premises"; "plant and equipment at the retail premises"; and "the appliances, fittings and fixtures provided under the lease or by the landlord relating to the gas, water, drainage or other services." [Mr Aghion's emphasis] Nothing in s52(2) restricts its application to the physical demise itself, except perhaps the internal fixtures.

1. I prefer Mr Aghion's interpretation. Should Mr Best's interpretation prevail, Parliament's "proper balance" could be set aside every time a landlord owns less than the entire building or, as Mr Aghion mused:

... a canny landlord (or, as here, a tenant) could attempt to get around s52 by expressly excluding areas such as the external structure from the definition of the demised premises, but at the same time imposing a separate obligation upon the tenant or landlord (as appropriate) to maintain those exterior part of the building which did not form part of the demise.

Physical condition at the commencement of the lease

1. At paragraph 9 of the Amended Points of Claim, Savers pleads:

At the time of entering into the second lease and the current lease the roof of the premises, the drainage system of the premises, the front fascia and signage of the premises and the sub-floor of the premises were in good repair and condition. [Emphasis added]

9.1 by reason of the renewal of the lease, the condition of the premises at the commencement of the second lease is irrelevant;

9.2 the landlords are not the registered proprietors of, and have not leased the roof and sub-floor to Savers ...

9.3 the roof ..., drainage system, front fascia and the sub-floor of the premises are now in the same condition as at the time of entering into the current lease; and

9.4 the signage was installed by Savers, and was and remains a tenant's fixture.

It is noted that the 210 Landlords sought further and better particulars of paragraphs 9 and 12 on 11 August 2010, the same date upon which they filed and served their defence, but further and better particulars have not been filed by Savers.

1. In accordance with the evidence of Ms Danials and Ms McMaster, the physical condition of aspects of the 210 premises were not "in good order and repair" on 1 March 2008 when the current lease commenced. As Mr Aghion submitted at paragraph 20 of his written submissions, referring to the evidence of both Ms Danials and Ms McMaster:

At the time of entry into the 2008 lease, there were longstanding issues with both the roof and sub-floor, which were known to Savers.

1. Mr Aghion also referred to expert evidence. He noted the report of Fix-rite Plumbing of May 2008 which:

... appears to identify most, if not all, of the roof issues that are presently being considered by the Tribunal.[7]

Further, all of the matters that Mr Johnston indentifies as defects (e.g. rusting roof iron, roof iron laid with inadequate fall, undersized gutters and downpipes, rotting stumps founded on timber sole plates, inadequate sub-floor ventilation, unsatisfactory sub-floor repairs, open sub-floor drain) by their very nature are most likely to have existed prior to 1 March 2008.

The roof and sub-floor therefore remain in the same condition as when the 2008 lease commenced.

1. I accept part of these submissions. No party has suggested that there has been a change to the inadequate roof falls, undersized gutters and open sub-floor drain. Nevertheless, it is beyond question that ferrous metal exposed to oxygen that has started to rust will continue rusting, particularly in damp conditions. It is also beyond question that dissimilar metals exposed to the damp atmosphere, such as the weather on this roof at Dandenong, will continue to be subject to deterioration through galvanic action.
2. The one area for which there is evidence of change since commencement of the current lease concerns the pops leading to and down-pipes in the columns. As quoted above, Mr Alter sent an e-mail to Mr Whiting dated 5 July 2008 saying, among other things:

Please note that we are advised by the Owners Corporation that the roof has been repaired and they are in the process of installing four overflow pipes in the gutter.

Work has been done and the altered work is leaking.

1. Mr Aghion acknowledged at paragraph 12(a) of his written submission:

... where the applicant proves that the deficiency has increased from the time that the lease was entered into until the present time, there is an entitlement under s52 My Club at [58]

1. With the possible exception of the pops and down-pipes, the classes of defects are the same as at the commencement of the current lease, but I find their extent is greater. Although I do not have precise evidence of the physical state of the premises on 1 March 2008, I accept as a matter of common knowledge that the roof, and possibly drainage, has deteriorated since that date. At some point items which deteriorate go beyond a "tipping point", after which steps must be taken to rectify or replace them. I find that such tipping points have been reached concerning the roof, in accordance with the conclusions below.
2. Even if I am wrong concerning the correct interpretation of s52, I find that the condition of the premises has changed since the commencement of the lease.

Section 52 and clause 2(b) of the lease

1. Again, if I am wrong concerning the interpretation of s52, regard must be had to its impact on Clause 2(b) of the current lease.
2. The 1998 lease was agreed to by the parties before s52 of the RL Act was amended by the Retail Leases (Amendment) Act 2005. The amendment to s52(2) in the 2005 Act was retrospectively effective to 1 May 2003 (co-incidentally the date upon which the second lease commenced) and limited the section's operation by removing the words "good repair" and adding the words underlined as follows:

(2) The landlord is responsible for maintaining in good repair a condition consistent with the condition of the premises when the retail premises lease was entered into ...

1. Clause 2(b) was completely consistent with the RL Act on 1 March 1998; the date the 1998 lease was executed. That the parties agreed that the 210 Landlords would be responsible for "maintaining the building[8] in good repair and condition" demonstrates that at that date they agreed that the building was in good repair and condition and that the 210 Landlords would keep it so.
2. If the 210 Landlords had fulfilled their obligations under the first lease, it follows that the building was "in good repair and condition" on 1 March 2003 at the commencement of the second lease. The 210 Landlord did not plead otherwise, although they pleaded that the state at the commencement of the second lease was irrelevant.
3. Whether clause 2(b) or s52 operated from that date, the 210 Landlords were obliged to maintain the building in the same condition during the second lease.
4. Similarly, the only reason why the building might not have been in good repair and condition at the commencement of the third lease in 2008 would be due to breach by the 210 Landlords of their obligations under clause 2(b) and/or breach of their obligations under s52(2) during the second lease. In other words, to defeat Savers' pleading at paragraph 9 that the roof etc were in good repair, the 210 Landlords would need to rely on facts arising from their own breach or breaches. As Lord Jauncey of Tullichettle said in deliveing the opinion of the House of Lords in Alghussein Establishment v Eton College[9]:

... it is well established by a long line of authority that a contracting party will not in normal circumstances be entitled to take advantage of his own breach as against the other party

1. This was not argued before me and I do not rely on Alghussein, but I note that to allow the 210 Landlords to benefit from their own breaches appears both unjust and commercially counter-intuitive.

1. Mr Aghion submitted that the agreement is insufficiently precise. To reiterate, clause 1(c) provides:

Within 120 days the Lessors must undertake at their own cost and expense all necessary and proper repairs, alternations, additions and improvements to the roof of the leased premises and otherwise comply with clause 2(b) of the lease.

1. Having regard to the type and standard of work, the agreement is sufficiently precise. Clause 2(b) is a performance specification rather than a schedule of works. I find that the obligation with respect to the roof and drainage is to prevent them from leaking into the premises.
2. Mr Aghion continued at paragraph 8 of his written submissions:

In any event, section 94(1) of the RLA voids a provision of either a retail premises lease or an agreement to the extent that it is contrary to or inconsistent with anything in the RLA. To the extent that the settlement agreement provides in a manner that is inconsistent with or contrary to s52 of the RLA therefore, that part of the settlement agreement will be avoided. [Emphasis added]

1. As I have said above, I do not consider s52 inconsistent with clause 2(b) and for the same reasons I do not find that it is inconsistent with the agreement of 15 July 2009.
2. Further, I am not satisfied that an agreement to settle a dispute between a landlord and tenant is contemplated by section 94. Mr Aghion's interpretation has the potential to invite parties in dispute concerning repairs to negotiate in bad faith, then rely on s52.
3. I find that independently of the 210 Landlords' obligations under s52, by virtue of the agreement of 15 July 2009 they are obliged to put the roof into good repair and condition, to maintain the structural integrity of the building and to ensure that its drainage system is maintained.

1. Mr Aghion submitted at paragraphs 14 to 17 of his written submissions, that the roof and sub-floor are not on the title to the 210 premises and therefore do not form part of the demised premises, that these areas are "under the exclusive ownership or control of the Owners Corporation", that references to "the building" in the lease can only refer to parts of the building forming part of the landlord's title, that the landlord does not have "the numbers to pass a special resolution at a meeting of the members of the owners corporation" and that:

Where there is a question of repair and maintenance to areas which are not under the control of the landlord, a claim for breach of quiet enjoyment will fail. The covenant for quiet enjoyment does not by a sidewind create a lessor's covenant to repair the demised premises.

1. To take the last point first, the "sidewind" is precisely what Savers and the 210 Landlords agreed to when they signed the 1998 lease - clause 2(b) accompanies 2(a) and they are collectively headed "quiet enjoyment". It is clear that the intention of the parties was that they should keep leaks out of the demised premises. There are means that can be adopted to ensure this occurs other than fixing the roof, although fixing the roof, or ensuring that it is fixed, is probably the most practical way of achieving this result.
2. If the Tribunal cannot order the 210 Landlords to repair the roof and sub-floor without the permission of the Owner's Corporation, it is surprising that the 210 Landlords should have, apparently, repeatedly attempted to repair the roof and drainage in the past. They have also undertaken to do so in the leases and in the agreement of 15 July 2009.
3. From the letters passing between Mr Robert Cukierman of the 210 Landlords and Mr Wells on behalf of the Owners Corporation, it is clear that there has been a high degree of co-operation between them.
4. Mr Best said in his opening submissions that the 210 Landlords, or at least the Landlords collectively, "had the numbers" to pass a special resolution. Mr Aghion submitted that this is incorrect, at least with respect to the 210 Landlords. I have not seen or heard evidence about this from any party. I therefore disregard issues concerning control or otherwise of the Owners Corporation.
5. My attention has not been drawn to it and I have not discovered a reference in the 1998 lease to the 210 Landlords owning a unit within the building, rather than the whole of the building. Nevertheless, I note that clause 2(b) provided in part that the 210 Landlords would: "ensure that the roof and drainage system are maintained." The plain meaning of this phrase was that the 210 Landlords made that assurance regardless of who owned the roof.
6. As discussed above, although the Owners Corporation is a party to the proceeding, no other party has filed points of claim against it. Without such points of claim, I will not impose a financial burden on the Owners Corporation, other than to provide access to the Landlords to enable them to arrange any necessary repairs.

For the reasons given above, I conclude that it is appropriate to make orders of the nature described below, subject to submissions as to detail by the parties.

1. In accordance with the expert evidence of Mr Dalziel I find that the 210 Landlords must undertake or arrange for the following work to be undertaken:
   • The gutter be realigned to provide a gradual fall to the downpipe pops.
   • All pops to be checked for penetrations due to corrosion and be replaced if necessary. The veranda cladding be given an application of a surface coating such as paint.
   • Initiation of a regime of regular maintenance of this area of the roof.

1. In accordance with the evidence of Mr Johnson, the 210 Landlords must undertake or arrange for the following work to be undertaken:
   • Replace the pops and down-pipes to enable a greater volume of water to be drained from the box gutters. If the down-pipes are replaced, it might also be necessary to replace them beneath the floor to where they discharge.

I invite the parties to address me about the appropriate sizes of the replacement pops, down-pipes and sub-floor drains.

1. In accordance with the expert evidence of Mr Dalziel I find that the 210 Landlords must undertake or arrange for the following work to be undertaken:
   • Flashings, cappings and ridge ventilators to have remedial surface coatings applied to rusted areas.

I am not persuaded that it is necessary that the box gutters be replaced.

1. In accordance with the evidence of Mr Johnson, the 210 and 196 Landlords must undertake or arrange for the following work to be undertaken:
   • Replace the roof cladding including the flashings, parapet cappings, gutters and drainage.

1. In accordance with the evidence of both experts, the 196 Landlord must undertake or arrange for the following work to be undertaken:
   • Replace the roof cladding including the flashings, parapet cappings, gutters and drainage.
   • Install or replace flashings at the step-down and take any necessary to prevent leaking at the high light windows.

1. This issue has been dealt with under Area 2 above.

1. I am not satisfied that it is necessary make any orders concerning works to the structure of the sub-floor, other than to require the Landlords to institute, or ensure the institution of a system of regular checking and maintenance of the stumps, bearers and joists.

1. In accordance with the evidence of both experts, the Landlords must undertake or arrange for the sub-floor open drain to be piped.

1. I am satisfied that there is ceiling damage due to the failure of the 196 Landlord to ensure that its portion of the premises is watertight. The 196 Landlord must undertake any necessary repairs to the ceiling, including plastering and painting.
2. Some ceiling marking was also apparent in the 210 portion of the premises. The 210 Landlords must undertake any necessary repairs including painting.

1. I find that it was necessary to repair the damage to the fascia to keep the building, and therefore the rented premises, leak-free. I find that the 210 Landlords must therefore either reimburse Savers the cost of repairs of $6,500, or arrange for Savers to be reimbursed by the Owners Corporation or the building's insurer.
2. It does not follow from this conclusion that Savers is entitled to have the 210 Landlords reinstate the hoarding, or the sign that was destroyed with the hoarding, as I have heard no evidence about the ownership of the hoarding or responsibility for it.

1. In accordance with the request of the parties, the proceeding is listed for a further hearing to enable the parties to make submissions for orders to give effect to these reasons. The parties should turn their minds to precise orders about the work to be done or the result to be achieved, when work is to be commenced and completed and any issues about access and/or verification of results.
2. Should Savers and the 210 Landlords both so request in writing, the proceeding will be referred to further compulsory conference before Senior Member Levine to assist with the preparation of suitable orders.
3. Costs are reserved with liberty to make submissions at the further hearing.

[1] The 210 Landlords are companies owned and operated by members of what appears to be an extended family, some of whom spell their name Cukierman, and others Zukierman.