THE OWNERS OF RIVIERA APARTMENT - STRATA PLAN 35851

Real property - Strata titles - Common property - Floor tiles - Repair

State Administrative Tribunal Act 2004 (WA), s167(15)

Strata Titles Act 1985 (WA), s 83(1)

2 The Applicants are Gennaro Triunfo and Maria Fedele Triunfo as the proprietors of lot 1 on Strata Plan 35851 ("the Strata Plan").

3 The Strata Plan was registered on 8 March 1999 pursuant to the Strata Titles Act 1985(WA) ("the 1985 Act") which continues to be the relevant Act.

4 In these Reasons, unless otherwise specified, all references to sections and Schedules are, respectively, references to sections of and Schedules to the 1985 Act.

5 The parcel is a 32-lot residential development known as "Riviera". It has frontages to Melville Esplanade, Stirling Street and Mill Point Road, South Perth.

6 According to the Strata Plan, the address of the parcel is 1 Stirling Street, South Perth.

7 There are three groups of buildings, including a multi-storey building at the western end of the parcel.

8 The Applicant's lot 1 comprises a ground-floor residence in the western-most building, plus two adjacent courtyard areas and a garage and storage room near the centre of the parcel.

9 When the Strata Plan was registered, the Strata Company's by-laws, were, pursuant to s 42(2), the "standard" by-laws contained in Sch 1 and Sch 2.

10 The Strata Plan records that changes to the by-laws have been made pursuant to:

"(a) Notification H442156, noted on the Strata Plan on 11 May 2000; and

(b) Notification H452110, noted on the Strata Plan on 23 May 2000."

11 The Applicants have sought an order under s 83(1), in the following terms:

"We require the referee to make an order to the owners of Riviera Apartments Strata Plan 35851 to restore our terrace as it was before the works carried out by Strata Management, without our knowledge and permission."

"Whilst we were in Italy Mr Frank Evangelista rang us. He said that the strata manager of Riviera contacted him because a pipe leakage was happening in our apartment. I authorized Mr Evangelista to take the unit keys at ANZ Bank. Nothing was found in the unit, and Mr Evangelista made me aware of the fact. When I was back in Perth, I found a drilled hole in the corners of four tiles, a crack in a tile, an exposed water pipe on the terrace floor that wasn't before and a [sic] damage on the wooden plank hiding the pipes in the recess into the walls. I.e. Mr Jim Weller, the caretaker and a plumber entered, unauthorized by us, in our garden to effect repairs to water pipes recesse [sic] into the walls for the benefit of the unit directly above."

13 In correspondence between the Applicants and the Strata Company in early April 2004, the Applicants were advised that the broken tiles would be replaced:

14 When it was reported that matching tiles could not be found, the Applicants were advised that the Strata Company would not pay for the replacement of all tiles on the terrace area in question as it considered that the substantial cost (more than $3000) was not justified:

"when the only damage caused by the plumbers to the tiles is one hole in the grouting. Therefore the tiler will fill the hole with grouting which matches the existing colour..."

15 On 12 April 2004 the Applicants responded. Their response included:

"... Nobody was informing us of the works performed on the terrace, hoping we were not noticing the changes. I.e. a drilled hole on the corners of four tiles damaging them drastically; a tile cracked; a copper pipe laid exposed making an unacceptable servitude, the painted plank to cover the recess hiding the pipes, loose; the lava stones on the wall badly cut

...

What we are requiring now is to restore our terrace as it was before. Taking in account that The Riviera building is rated luxury residential property, we cannot accept any intervention that will not bring our property to its full restoration..."

16 No proprietor of any other lot in the scheme has supported the application. The proprietors of ten lots have opposed it.

17 The works carried out by the Strata Company's plumber have been summarised by the plumber as:

"... 18 August 2003 Checked and found low flow and leak from hot water to taps in unit 5. Suspect hot water pipes burst in ceiling of unit 1.

28 August 2003 - Returned after arranging for keys and entry to unit 1. Found no leaks in unit 1, however, found pipes to and from unit 5 hot water system goes into ground of unit 1. No signs of burst.

21 August 2003 Returned with Leak Detection and confirmed that pipes run under concrete floor of unit 1. Advised Jim and Body Corporation.

3 September 2003 Returned and re-ran hot water pipe in the ground of unit 1 into Common area and reconnected to unit 5 at side of building.

NOTE: The only option was to re-run hot water in ground and around outside of unit 1 rather than cut floor of unit 1 to locate and repair leak ..."

18 Following the receipt of a letter received from the Applicants' solicitors on 2 January 2004, the Strata Company's Manager, Diane Brueschke, on 8 February 2004, responded, stating, in part:

"... The strata company had an obligation to ensure that there was no damage being caused by water leakage into Mr Triunfo's apartment and to repair hot water pipes to the apartment above.

Past experience has been that we were unable to obtain a response from the mobile number or email address left by Mr Triunfo when he returned to Italy. For this reason, the caretaker rang Mr Frank Evangelista in the hope he would be able to contact Mr Triunfo. Mr Evangelista range Mr Triunfo and notified him that there was a problem. He obtained permission to get a key to the apartment from the bank. At no time was Mr Weller or the plumber in the apartment without Mr Evangelista being present.

There was an emergency in as much as the plumber could not identify where the leakage was and required access to the apartment to make sure there was no flooding inside. Also, the tenant in the apartment above had moved out by this time, as he had no hot water. The owners of the apartment wanted a solution as they were losing income.

The nature of the repairs was explained to Mr Triunfo when he returned from Italy. It was also explained that the only way to repair the pipes was to dig up the tiled verandah [sic] ...

The strata company is happy for Mr Triunfo to obtain three quotes for repair of the tiles around the pipes. Subject to approval of a suitable quote by the committee, the strata company will pay the account ..."

19 In response to this application, Mrs Brenschke has submitted that:

"1. It is not seen to be a reasonable request to re-tile the whole terrace, at a cost of over $3,000.00 because of one hole.

2. The committee has always been agreeable to covering the exposed water pipe and tightening up the panel covering the existing pipes.

3. The cracked tiles mentioned by Mr Triunfo are not related to the plumbing work and were pre-existing.

4. The caretaker has tried to get matching tiles to replace the four tiles which had the corners drilled. He went to a "tile library", but could not get an exact match.

7. Mr Triunfo would not accept that work could not be carried out over the New Year period when tradesman are not available and went to a lawyer. This added more time before anything could be done.

8. Mr Triunfo did not obtain, or did not give us any quotes to get the work done. More time was lost while we waited for him to do so."

"... We oppose the application, believing that this is an excessive response to a trivial aesthetic alteration to the terrace in question."

"The 'offending' hole is of a very small diameter and can be easily rendered unobstrusive by the judicious application of a toning grouting, there being no matching tiles."

"In no way does this detract, either from the value of the unit, or the ambience of the terrace ..."

"... I have seen the hole in question and it is about the size of a 20c piece. The whole episode is a storm in a tea cup and with a little co-operation on Mr Triunfo's part this would have been easily resolved..."

21 These are typical of the submissions opposing the application.

22 The Strata Company has provided me with the following report dated 31 August 2004 from its tiling contractor C.M.G. Tiling:

"...On the 25 February 2004 I inspected the above apartments rear verandah with Jim Weller. I was requested to provide a quote to retile the entire verandah including skirting, steps and piers. The total price to retile this area including 35 m2 of tiles and material was $3,500.00.

While inspecting the area I found the existing tiling to be in very good condition and I queried why the verandah was being retiled as I could see no apparent damage. It was explained that there was a 9 mm hole in one of the tiles and some exposed 9 mm copper piping right up against the unit. The hole was not affecting any of the structure of the existing tiling and was not a safety issue. I recommended this hole be filled with a matching epoxy grout colour or numerous other building materials and a 70O ml tiled pelmet to cover the exposed copper pipe (in a neutral coloured tile). The other reason for my suggestion was that I was unable to find an original match to the existing tile (from the Tile library at Osborne Park).

Additionally the tiles will need to be jack hammered off the existing substrate which may cause cracking or movement to the building. During this time there will be a lot of dust and noise."

23 On 9 September 2004 I arranged for a copy of that report to be forwarded to the Applicants, with a request that they respond by 30 September 2004.

24 They did not respond until 6 December 2004 when they wrote:

"... I am sorry for the delay, but I just came back from Europe as I announced in my application before departing from Perth during the middle of April 2004.

What is said in the letter from Mr Gillard to Mr Weller doesn't give the concept of my query. When I purchased my Unit it was supposed to be a luxury apartments. Every thing was built up to satisfy this feature. An exposed pipe, which was concealed before into the slab; a hole drilled without a right reason, affecting four tiles; two cracked tiles consequence of bed work intervention; a wooden plank hiding copper pipes in the vertical wall badly fixed constitute a depreciation of my unit. What I want is to restore what was altered, nothing more.

It is not true that to remove the tiles has to be used a jackhammer. It is enough a tile hammer. Using a jackhammer, it will destroy the inferior supporting slab. Little dust rising up can be avoided watering the surface. Moreover I was not informed about those works. I didn't give any authorization to perform them ..."

25 In response to that letter, the Strata Company's Manager, Mr Jim Weller, reported to me on 18 December 2004, that:

"... In the letter you received from Mr Gillard, (the tiler) he expressed that it would only of been necessary to use a jackhammer to replace the tiled area of the courtyard. This would not have been possible as the tiles are no longer available. However we will plug the hole and cover the exposed pipes against the wall.

In regards to the damaged tiles, the plumber could not have been responsible for this as he was working 4 ft away.

Previously I was informed by Mr Triunfo that a nut had come off the balcony above and had dropped down hitting the tiles and causing the damage.

As for the vertical wall with the wooden planks that hide the copper pipes, this has always been there and has come loose. It needs to be replaced with a large screw to secure it.

Mr Triunfo was not informed as he was out of the country and could not be contacted. We did consider it an emergency as the unit above had no hot water for 5 days ..."

26 In the circumstances, I believe that the repair works proposed by C.M.G. Tiling are reasonable and that it is not necessary nor reasonable for the Applicants to require the re-tiling of their entire balcony.

27 As the Strata Company is ready and willing to have those works carried out, there is no point in making the Order sought. It is up to the Applicants to advise when they wish to have the works carried out. If approval is given to the Strata Company to proceed but the Strata Company does not do so within a reasonable time, it may be necessary for the Applicants to consider making a further application.

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State Administrative Tribunal Act 2004)