//
[2026] NSWCATCD 102
General information, not legal advice.
NCAT Consumer and Commercial
2026-06-09
R. Alkadamani, Senior Member
Original judgment source is linked above.
Zoe will write a short plain-English summary of this judgment and email it to you for free: what it was about, what the court decided and why. It can take up to a minute.
General information, not legal advice.
Or create a free account to save it and ask Zoe follow-up questions.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: The Owners – Strata Plan 3545 v Australian Concrete Repairs Pty Ltd (No 2) [2026] NSWCATCD 102
Hearing dates: On the papers
Date of orders: 9 June 2026
Decision date: 09 June 2026
Jurisdiction: Consumer and Commercial Division
Before: R. Alkadamani, Senior Member
Decision: (1) Order pursuant to section 50(2) of the Civil and Administrative Tribunal Act 2013 dispensing with a further hearing in respect of these orders.
(2) Order pursuant to section 48O of the Home Building Act 1989 (NSW) that the respondent is to undertake the following work (work order):
(a) replace the torch on waterproofing membrane to the rooftop of the property at 178 Beach Street, Coogee;
(b) replace the capping along the perimeter hobs;
(c) remove the roofing so as to install capping on the hob between the lift housing and the hob around the atrium and reinstate the roofing;
(d) install new overflashing to the perimeter of the lift housing;
(e) move rooftop entry door and door threshold forward above the step down in the slab.
(3) The work order is to be performed in accordance with applicable building codes and standards and with due skill and care.
(4) The work order is to be completed within 3 months of the date of these orders.
(5) Reserve the question of costs.
(6) Any party that seeks an order for costs is to lodge with the Tribunal and serve on the other party within 14 days submissions of no more than 3 pages and, if necessary, any evidence on which they intend to rely.
(7) Any party that wishes to lodge any submissions in response to submissions served pursuant to the preceding order is to lodge with the Tribunal and serve on the other party within 14 days submissions of no more than 3 pages and, if necessary, any evidence on which they intend to rely.
(8) Submissions on costs should address whether the question should be determined without a further hearing.
Catchwords: PRACTICE AND PROCEDURE – Orders
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Home Building Act 1989 (NSW)
Cases Cited: Sader v Renbar Constructions Pty Ltd [2025] NSWCATCD 47
Texts Cited: None
Category: Consequential orders
Parties: The Owners – Strata Plan 3545 (Applicant)
Australian Concrete Repairs Pty Ltd (Respondent)
Representation: Mr T Davie, counsel (Applicant)
Mr M Birch, solicitor (Respondent)
Solicitors:
JS Mueller & Co (Applicant)
Michael Birch (Respondent)
File Number(s): 2025/00053433
Publication restriction: None
On 24 April 2026 the Tribunal published its decision in these proceedings (the Primary Decision). In the Primary Decision the following orders were made:
Order that the parties liaise and provide to the Tribunal within 14 days agreed short minutes of order providing for work orders to give effect to these reasons and in the absence of agreement each party is to provide its proposed orders with submissions in support not exceeding 3 pages.
Reserve the question of costs.
Direct that any party that wishes to make any submissions as to costs to file and serve written submissions of no more than 3 pages within 28 days, identifying the evidence on which they rely.
Direct that any party that wishes to oppose any submissions made pursuant to the preceding order file and serve written submissions of no more than 3 pages within 42 days, identifying the evidence on which they rely.
On 8 May 2026 the owners lodged proposed work orders. The respondent did not lodge any material.
On 21 May 2026, after an enquiry from the Tribunal, the respondent’s solicitors advised that the respondent had lodged an appeal and did not propose to submit proposed orders.
These reasons deal with the work orders that are to be made to give effect to the reasons for decision.
These reasons for decision assume knowledge of, and should be read in conjunction with, the Primary Decision. Defined terms in the Primary Decision are also used in these reasons.
The Primary Decision records the following at [101] – [102]:
[101] The reference in Ashton at [160] to “mechanisms” suggests that waterproofing, when used in the definition of building element, is apt to include the combined operation of more than one item or component which together achieve the result of waterproofing. The owners’ submissions were to similar effect.
[102] I find that the owners have established that the waterproofing on the roof is defective in that it permits water ingress. Consistently with GMI Constructions, I do not accept that the correct approach is to determine whether each specific defect identified in the waterproofing system in these proceedings is a “major defect” that itself gives rise to the statutory outcome in s 18E(4)(i), (ii) or (iii). I find that the meaning of waterproofing in the definition of major element encompassed the combination of components or building measures that, operating together, were the works undertaken by the builder to waterproof the roof area and the roof slab.
The first component of the work order that the owners contended should be made was the replacement of the torch-on membrane to the rooftop of the strata scheme. The owners also contended that the order should encompass that the substrate is prepared to permit falls to the drainage area.
The torch on membrane was a central component of the waterproofing work undertaken by the builder. In the Primary Decision I found that the torch on membrane had delaminated and that this was a defect. I also found that patching would not be an appropriate method of rectification. Consequently, I accept that the torch on membrane should be replaced.
I turn to consider whether an order specifically requiring that the substrate preparation permit surface falls to the drainage area is necessary and/or appropriate.
I note that the owners’ expert report recorded:
[51] 1:100 falls are required towards existing drainage outlets to ensure no water ponds upon the waterproofing system as per AS4654.2. In addition, ponding water will degrade the seams/welds over time causing premature failure.
The owners’ expert’s evidence set out in the preceding paragraph suggests that the surface fall has a connection with protecting the waterproofing system by preventing water ponding on it.
The substrate preparation needs to accord with applicable standards and be undertaken with due skill and care. Further, the work performed pursuant to the work order must comply with applicable standards and be undertaken with due skill and care. That includes complying with standards that require surface falls to drainage.
Consequently, it is not necessary to determine whether appropriate surface falls are a component of the water proofing system or to make a separate order in that respect.
The next component of the proposed work order is to address steel rods that penetrate the membrane. This issue is necessarily addressed as a component of the application of a new torch on membrane because if it were not addressed then the torch on membrane applied pursuant to the work order would not comprise work that was undertaken with due skill and care and complied with appropriate standards.
The next component of the proposed work order is that termination detail of the waterproofing membrane around PVC pipe penetrations were not clamped using stainless steel O-rings. This is a necessary termination details under AS 4654.2 as well as the ARDEX manufacturer’s requirements (see Ex 1, p. 550). Again, it seems to me that the issue is whether applying the torch on membrane pursuant to the Tribunal’s work order in accordance applicable standards and undertaken with due skill and care addresses this issue. Since AS 4654.2 deals with termination details around PVC pipe penetrations, a specific order is unnecessary.
The next component of the proposed work order relates to the termination detail of the waterproofing membrane around the masonry. The relevant issue was the absence of appropriate upturns as required by AS 4654.2 and the ARDEX manufacturer’s requirements. This is another defect which will be addressed by performance of the work order in accordance with applicable standards and undertaking the work with due skill and care.
The next component of the proposed work order is to address the corrugations on the surface of the waterproofing system. This will also be addressed by undertaking the work pursuant to the work order in accordance with applicable standards and with due skill and care.
The next component of the proposed work order is addressing inadequate surface falls. This issue was addressed above in respect of the preparation of the substrate.
The next component of the proposed work order is capping along perimeter hobs. In the Primary Decision, I made the following findings:
70 In his initial report, the owners’ expert opined that the cappings installed to perimeter hobs was fixed through the top side of the capping whereas they should have been fixed through the side (Ex 1, p. 364, [54]).
71 In the builder’s expert, he opined that, “[as] the roof has been worked on by a third party I cannot attribute any defects to the [builder]” (Ex 1, p. 557). This observation, and other observations made by the builder’s expert in his initial report, were relied on by the builder in its final written submissions.
72 However, having regard to the joint expert report (exhibit 3), the builder’s expert appears to have altered his opinions after the conclave. After their conclave, the experts record that in relation to this item, they agree “to replace all cappings and capping fixings” (Ex 3, point 7). The agreement of the experts, as recorded in their joint report, can only be sensible (sic) understood as superseding the builder’s expert’s initial position. Consequently, I find that the capping and capping fixings comprised work that was defective, or more precisely, not undertaken with due care and skill.
73 A related item to the capping fixings is dents along the top of the capping. Separate submissions were not made about this item by the parties, presumably because, if the cappings and capping fixings are ordered to be replaced, then the existing dents will inevitably no longer be an issue.
74 A further related issue is that there is evidence of corrosion on the capping fixings (Ex 1, p. 364, [57]). This issue is dealt with as item 10 in the experts’ list of defects. However, it seems to me that the corrosion is a consequence of the defective fixing, specifically, the failure to use sufficiently high grade stainless steel fixings. Again, if the cappings and capping fixings are ordered to be replaced, then this issue will be addressed in that work.
The cappings are affixed along the perimeter hobs by penetrations through the top instead of through the sides. The penetrations through the top, rather than through the sides, creates potential points of water ingress (Ex 1, p. 364).
In Sader v Renbar Constructions Pty Ltd [2025] NSWCATCD 47 (Sader) Senior Member Burton SC observed:
[11] In that respect, waterproofing is an express “major element” in para (c) of the definition in HBA s 18E(4) and extends to all elements of the system for prevention of water entry: membrane, drainage falls, capping and flashing, flanges, overflow provision for the roof; drainage and stormwater that carries away water which could otherwise enter the dwelling; waterproofing in a shower. The alleged defects if found are attributable (among other matters) to defective or faulty workmanship and a failure to comply with NCC structural performance requirements that (in accord with Australian Standards) require a building to be waterproofed. By allegedly allowing water flow and damage as described below the alleged defects if found cause or are likely to cause (among other matters) the inability to use or inhabit part of the building for its intended purpose. They accordingly meet the requirements in at least para (a) of the definition of “major defect” in HBA s 18E(4).
Having regard to Sader at [11], I find that the capping on the perimeter hobs are a component of the waterproofing system. Having regard to the experts’ agreed position that the capping along the perimeter hobs should be replaced, it is appropriate that a work order to that effect be made. This work order will also address the dents in some of that capping and corroded capping fixings.
The next component of the proposed work order is the non-installation of capping on the hob spanning the masonry lift housing and the hob around the atrium. Installation of this capping was required by the initial engagement of the builder. Consequently, there will be a work order for builder to remove the roofing and install capping on the hob between the lift housing and the hob around the atrium and reinstate the roofing.
The next item on the owners’ proposed work order schedule relates to “falls to membranes”. This issue is subsumed by the issue of surface falls as discussed above.
The next component of the proposed work order is sought to address inadequate cavity flashings around the masonry lift housing. Cavity flashings are a component of the waterproofing system. The experts agreed that the appropriate method of rectification was the installation of new overflashing to the perimeter of the lift housing.
The final component of the proposed work order is to address the absence of upturn termination height at the door opening to the rooftop. This means that rainwater is potentially not stopped outside the rooftop door or, conversely, may enter. The experts agree that a solution would involve moving the door forward to be above the step down so that the step down would serve as a suitable upwards termination.
The Tribunal makes the following orders:
Order pursuant to section 50(2) of the Civil and Administrative Tribunal Act 2013 dispensing with a further hearing in respect of these orders.
Order pursuant to section 48O of the Home Building Act 1989 (NSW) that the respondent is to undertake the following work (work order):
(a) replace the torch on waterproofing membrane to the rooftop of the property at 178 Beach Street, Coogee; (b) replace the capping along the perimeter hobs; (c) remove the roofing so as to install capping on the hob between the lift housing and the hob around the atrium and reinstate the roofing; (d) install new overflashing to the perimeter of the lift housing; (e) move rooftop entry door and door threshold forward above the step down in the slab.
**********
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar
The Owners – Strata Plan 3545
Australian Concrete Repairs Pty Ltd (No 2)