Worrall v The Owners - Strata Plan No. 43357

Evidence

1. The parties produced a joint tender bundle for the hearing which was admitted into evidence without objection.
2. Mr Ilievski and Mr Lee gave oral evidence at the hearing. To the extent the experts' evidence is relevant to the issues to be determined, I will deal with it in considering those issues.
3. The issue which I need to determine in respect of each building element is whether it is the Owners Corporation or the applicant who is responsible for carrying out the work which the experts agree is necessary. I will address each of the building elements in turn.

First element - the awning

1. The first issue for determination in relation to responsibility for the awning is whether the awning is, or is not, common property.
2. Section 5(1) of the Strata Titles Act 1973, as in force at the time of registration of the strata plan, provided a definition of floor plan as follows: floor plan means a plan, consisting of one or more sheets, which: (a) defines by lines (in paragraph (c) of this definition referred to as base lines) the base of each vertical boundary of every cubic space forming the whole of a proposed lot, or the whole of any part of a proposed lot, to which the plan relates, (b) shows: (i) the floor area of any such cubic space, and (ii) where any such cubic space forms part only of a proposed lot, the aggregate of the floor areas of every cubic space that forms part of the proposed lot,
3. Sub-section 5(2) of the Strata Titles Act 1973 provided: (2) The boundaries of any cubic space referred to in paragraph (a) of the definition of floor plan in subsection (1): (a) except as provided in paragraph (b): (i) are, in the case of a vertical boundary, where the base of any wall corresponds substantially with any line referred to in paragraph (a) of that definition - the inner surface of that wall, and (ii) are, in the case of a horizontal boundary, where any floor or ceiling joins a vertical boundary of that cubic space - the upper surface of that floor and the under surface of that ceiling, or (b) are such boundaries as are described on a sheet of the floor plan relating to that cubic space (those boundaries being described in the prescribed manner by reference to a wall, floor or ceiling in a building to which that plan relates or to structural cubic space within that building).
4. The applicant noted that the relevant sheet in the strata plan contained a notation "the stratum of the terraces where not covered is restricted to 2.5 metres above the upper surface of their respective floors."
5. The applicant submitted that description by way of notation on the strata plan is "normally the way the upper horizontal boundary of a part of a lot which is not covered by any structure is defined".
6. The applicant submitted that the notation on the strata plan defined the upper horizontal boundary of the roof terrace except where it was covered by a structure. The applicant submitted that, where the terrace was covered by a structure, by virtue of sub-paragraph 5(2)(a)(ii) of the Strata Titles Act 1973, the lot was defined by the point where the ceiling of that structure joined a vertical boundary of the area.
7. The applicant also submitted that: "The part of the roof top terrace beneath the awning is clearly covered by the awning within the meaning of the notation on the strata plan. This means that the upper horizontal boundary of the roof top terrace where it is covered by the awning is the under surface of the ceiling or roof of the awning."
8. The applicant submitted that the pillars supporting the awning were relevantly structural cubic space as that term was defined in the Strata Titles Act, that is "cubic space occupied by a vertical structural member, not being a wall, of a building".
9. The applicant submitted that the awning was therefore common property and that the responsibility for repairing the awning lay upon the Owners Corporation.
10. The Owners Corporation submitted that "the awnings contained within the air space of the lot do not appear to be on the strata plan as common property and they only serve and benefit Lot 50".
11. The Owners Corporation submitted that the notation on the strata plan, to the effect that the stratum of the terraces where not covered, is restricted to 2.5 metres above the upper surface of the respective floors, does not have the effect of excluding the awning, which the Owners Corporation submitted was located within that 2.5 metre air space.
12. The Owners Corporation also relied upon the common property memorandum, which the Owners Corporation had adopted as part of the by-laws pursuant to s 107 of the SSMA. The common property memorandum provided that lot owners were responsible for maintenance, repair or replacement of: "1(a) Awnings, decks, pergola, privacy screen, louvres, retaining walls, planter walls, steps or other structures within the cubic space of the balcony or courtyard and not shown as Common Property on the strata plan."
13. The Owners Corporation submitted that the awning was "within the cubic space of the balcony or courtyard" and was not shown as common property on the strata plan.
14. In response, the applicant submitted that clause 1(h) of the section of the common property memorandum listing the Owners Corporation's responsibilities for maintenance, repair or replacement included "awnings within common property outside the cubic air space of a balcony or courtyard". The applicant submitted that "this sub-clause reinforces the duty the Owners Corporation owes under s 106 of the Strata Schemes Management Act to maintain and repair the awning's roof".

Consideration

1. The evidence tended to suggest that the awning on the roof terrace of Lot 50 had been there at the date of registration of the strata plan. Neither party submitted otherwise. As such, as the applicant submits, the area occupied by the awning was "covered" within the meaning of the Strata Titles Act. In consequence the limit of Lot 50 is the underside of the ceiling of the awning and the awning above that ceiling therefore constitutes common property.
2. However, in my view, the common property memorandum allocates the responsibility for maintenance and repair of the awning to the lot owner. The applicant did not seek to establish that the awning was "outside the cubic space" of the courtyard, in the sense that it was more than 2.5 metres above the upper surface of the floor.
3. I recognise that it might be argued that the "cubic space" of Lot 50 excluded the area above the lower surface of the ceiling under the awning, as that was the boundary of the lot.
4. However, in my view, that interpretation would render irrelevant or superfluous the inclusion of Item 1(a) within the list of lot owners' responsibilities in the common property memorandum. The clear intention of the common property memorandum is to impose upon lot owners the responsibility for maintenance of awnings on balconies and terraces within the height limit fixed as the upper limit of the cubic space for areas which are not covered.
5. Accordingly, I conclude that responsibility for rectification of the roof of the awning falls upon the applicant and it is not appropriate to make an order requiring the Owners Corporation to rectify the roof of the awning.

Second Element - Cavity flashing within the wall between Lots 47 and 50

1. The Owners Corporation did not dispute that the wall between Lots 47 and 50 was common property. However, the Owners Corporation's submission was that the responsibility for rectifying the cavity flashing lay upon the owner of Lot 47 by virtue of special By-law 35. Paragraph 3.4 of special by-law 35 provides that: "The Owner [of Lot 47]: 1. (b) is responsible for the ongoing maintenance of the alterations of additions to new structures erected on the common property resulting from the Works; 2. is responsible for the proper maintenance of and keeping in a state of good and serviceable repair, the Exclusive Use Area and the Works; 3. … 4. (e) remains liable for any damage to any lot or common property arising out of the Works; [and] 5. must promptly make good any damage to any lot or common property arising out of the Works.
2. The Owners Corporation also relied upon s 144(3) of the Strata Schemes Management Act which provides: (3) To the extent to which a common property rights by-law makes a person directly responsible for the proper maintenance of, and keeping in a state of good and serviceable repair, any common property, it discharges the owners corporation from its obligations to maintain and repair the property under this Act.
3. It does not seem to be in contest that the owner of Lot 47 would be responsible for the rectification of the works, but that does not excuse the Owners Corporation from its own obligation to maintain and repair the common property. If the Owners Corporation wished to seek orders from the Tribunal requiring the owner of Lot 47 to carry out the relevant works, it should have brought its own proceedings or sought to join the owner of Lot 47 in the current proceedings. The Owners Corporation has done neither.
4. Section 144(3) discharges the Owners Corporation from any obligation to maintain and repair common property the subject of a common property rights by-law. However by-law 35 does not grant the owner of Lot 47 exclusive use of the common property wall between Lots 47 and 50. The by-law imposes an obligation on the owner of Lot 47 to make good any damage to common property arising out of the works. Section 144(3) does not exclude the Owners Corporation's obligation to repair the common property consisting of the wall between Lots 47 and 50.
5. In my view it is appropriate to make an order requiring the Owners Corporation to undertake works which the experts agree are necessary to rectify the defective cavity flashing in the wall between Lots 47 and 50.
6. In the circumstances I consider it appropriate to allow an extended period for that work to be completed to permit the Owners Corporation to seek to require the owner of Lot 47 to undertake the work if it so chooses. Nothing in this decision should be taken as a finding binding upon the owner of Lot 47 in relation to responsibility for that work.

Item 3 - Ponding on the roof deck

1. It is not in dispute that the concrete slab and tiling floor of the roof area constituting part of Lot 50 is common property. The issue which I must determine is whether, pursuant to the terms of by-law 33, the responsibility for the maintenance and repair of that part of the common property falls upon the applicant.
2. The applicant's submissions referred to the fact that the Owners Corporation had carried out repair work on the roof terrace in the past. The applicant's submissions did not make it clear why that was said to be of significance in determining the meaning of by-law 33. The interpretation of the by-law is a matter of law, and previous conduct of the Owners Corporation in undertaking repair of the roof terrace could not give rise to any estoppel preventing the Owners Corporation from relying upon the terms of the by-law.
3. The Owners Corporation relied upon two further propositions in support of its submission that the applicant was responsible for the rectification of the drainage issues on the roof terrace.
4. First, the Owners Corporation submitted that by-law 33 imposed the obligation to maintain the entirety of the floor, including the slab beneath it, on the applicant.
5. In the alternative, the Owners Corporation submitted that the works carried out in relation to the installation of the spiral staircase had affected the drainage on the roof terrace and that by-law 33 required the applicant to rectify any damage caused by the construction of the spiral staircase.
6. In relation to the latter submission, the Owners Corporation relied upon the evidence of Mr Lee. Although Mr Lee acknowledged that "the slab does not slope towards the drains appropriately" and that "the slopes are not only inadequate but also do not facilitate drainage to the outlets and create ponding", he stated that "the perimeter drainage channel has been cut off by the spiral staircase construction and has insufficient slope". Mr Lee accepted that he did not have the information necessary to comment whether the falls on the roof deck were affected by the construction of the spiral staircase by a previous owner of Lot 50, he nevertheless stated that he "can say that at the time of the installation of the spiral stairs, some adjustment to the levels have occurred locally to prevent water running down the stairs".
7. As noted above, the experts agreed that the appropriate scope of repair of the terrace drainage was to relevel the deck, to install an additional drain to the deck, to redirect downpipes to drain near the outlets and to construct a landing to the spiral staircase.
8. Mr Lee produced a plan of the deck including the contour levels of the slab and screed on the roof terrace which showed three areas where ponding was occurring: one in the north east corner of the roof terrace adjacent to the wall between Lot 50 and Lot 47; one along the south wall of the roof terrace underneath the awning; and the third in a central location along the western edge of the roof terrace, a small distance to the north east of the spiral staircase.
9. By reason of the conclusion which I have reached, as set out below, in relation to the applicant's obligations with respect to the maintenance of the slab, it is not strictly necessary to determine whether the installation of the spiral staircase is responsible for any of the ponding on the roof terrace. Nevertheless, it is clear from Mr Lee's survey that only one area of ponding, that is the area on the western side of the roof terrace, slightly northeast of the spiral staircase, could possibly have been affected by the works involved in the installation of the spiral staircase.
10. The applicant's submissions focussed on the words within by-law 33.2 "for the specific purpose of building a metal spiral staircase partially enclosed by a polycarbonate screen penetrating the concrete slab". The applicant submitted that the obligation of maintenance and repair which the by-law imposed upon the applicant was limited to the spiral staircase.
11. The applicant submitted that it could not be the case that an exclusive use right to penetrate the concrete slab for the purpose of installing a spiral staircase could be intended to impose upon the owner of Lot 50 the obligation to maintain the entirety of the slab so penetrated.
12. The applicant relied upon the statement of Allsop P (with whom Basten and Young JA agreed) in Stolfa v Hempton [2010] NSWCA 218 at [30] in relation to the required degree of specificity required in a resolution authorising alterations to common property: 30 Section 65A calls for a special resolution that "specifically authorises the taking of the action proposed." It will be a question of fact or mixed fact and law in each case whether any given special resolution or special resolutions is or are adequate in its or their specificity of authorisation and in its or their particularity as to the action proposed. There is obviously a clear policy in requiring direct and specific attention to the proposed action; at the same time, an overly pedantic attention to detail might frustrate otherwise clear authorisation. Common sense and reasonableness have their part to play in the operation of a provision intended to regulate how people go about dealing with the common property in their units in everyday life.
13. The applicant submitted that "the works to install the spiral staircase have nothing whatsoever to do with the original defective gradient of the terrace and insufficient drainage causing the ponding".
14. The Owners Corporation pointed to the wording of sub-paragraph (e) which described the obligation of maintenance and repair as being in respect of "the structure and any common property the subject of the exclusive use referred to herein". [Emphasis added]
15. The Owners Corporation submitted that, in circumstances where the penetration of a slab had potential waterproofing and structural consequences, it was not an absurd conclusion that an exclusive use right to penetrate the concrete slab for the purpose of installing a spiral staircase should impose upon the lot owner receiving the exclusive use, the obligation to maintain the entirety of the slab so penetrated.
16. The Owners Corporation referred to The Owners Strata Plan No 2245 v Veney [2020] NSWSC 134 where Darke J held, at [31]-[32:] 31. In The Owners of Strata Plan No 3397 v Tate (2007) 70 NSWLR 344; [2007] NSWCA 207, McColl JA (at [34]-[71]) considered the question of characterisation of strata scheme by-laws, and how the nature of such by-laws affected the proper approach to be taken in their interpretation. Her Honour noted that strata scheme by-laws can be seen to possess the characteristics of delegated legislation as well as of statutory contracts (see at [35] and [47]) and, further, that not all principles of contractual interpretation apply unreservedly to statutory contracts (see at [56] and the discussion of the authorities at [57]-[70]). McColl JA stated at [71]: The following propositions emerge from the foregoing discussion: 1. By-laws are the "series of enactments" by which the proprietors in a body corporate administer their affairs; they do not deal with commercial rights, but the governance of the strata scheme: Bailey; 2. By-laws have a public purpose which goes beyond their function of facilitating the internal administration of a body corporate; cf National Roads and Motorists' Assoc Ltd v Parkin, Lion Nathan Australia; 3. Exclusive use by-laws may be inspected by third persons interested in acquiring an interest in a strata scheme, whether, for example, by acquiring units, or by lending money to a lot proprietor; such persons would ordinarily have no access to the circumstances surrounding their making; their meaning should be understood from their statutory context and language: National Roads and Motorists' Assoc Ltd v Parkin, Lion Nathan Australia. 4. By-laws may be characterised as either delegated legislation or statutory contracts: Dainford; Re Taylor; Bailey; North Wind; Sons of Gwalia; 5. Whichever be the appropriate characterisation, exclusive use by-laws should be interpreted objectively by what they would convey to a reasonable person: Lion Nathan Australia; 6. In interpreting exclusive use by-laws the Court should take into account their constitutional function in the strata scheme in regulating the rights and liabilities of lot proprietors inter se: National Roads and Motorists' Assoc Ltd v Parkin, Lion Nathan Australia. 7. Unlike the articles of a company, there does not appear to be a strong argument for saying exclusive use by-laws should be interpreted as a business document, with the intention that they be given business efficacy: cf National Roads and Motorists' Assoc Ltd v Parkin (at 236 [75]). That does not mean that an exclusive use by-law may not have a commercial purpose, and be interpreted in accordance with the principles expounded in cases such as Antaios Compania Naviera SA, but due regard must be paid to the statutory context in so doing; 8. An exclusive use by-law should be construed so that it is consistent with its statutory context; a court may depart from such a construction if departure from the statutory scheme is authorised by the governing statute and if the intention to do so appears plainly from the terms of the by-law: Re Taylor; 9. Caution should be exercised in going beyond the language of the by-law and its statutory context to ascertain its meaning; a tight rein should be kept on having recourse to surrounding circumstances: Lion Nathan Australia. Mason P expressed his agreement with McColl JA in this regard (see at [1]). 32. Based on the foregoing, it appears that in ascertaining the meaning of Special By-Law 4, it is necessary to consider the language of the by-law, viewed in the statutory context in which it was made; and whilst recourse to surrounding circumstances may be permissible as an aid to construction it is necessary, particularly bearing in mind the public purpose of strata scheme by-laws, to exercise caution in going beyond the language of the by-law itself and its statutory context.

Consideration

1. In my view, the answer to this issue lies in the specific terms of the grant of the exclusive use right, that is "the right to exclusive use of that area of common property being the concrete slab which forms the roof of the balcony of the lot and the floor of the roof terrace above".
2. It is apparent from the plans included in the experts' joint report and from the strata plan itself that the "concrete slab which forms the roof of the balcony of the lot" does not include the entirety of the floor of the roof terrace. The balcony is limited to the area outside the internal area of Lot 50 on level 12. It is only that part of the slab which is directly above the balcony which could be said to form "the roof of the balcony".
3. The fact that the reason for the grant of an exclusive use right was for the installation of a spiral staircase does not limit the area in respect of which the applicant was granted exclusive use. It may be noted that, although it may not have been practical to install the spiral staircase in any other location, the by-law did not specify where within the exclusive use area the staircase was to be installed.
4. The question whether the installation of the spiral staircase was responsible for the inadequate drainage of the deck is not to the point. By seeking and obtaining an exclusive use right in respect of the slab which formed the roof of the balcony and floor of the terrace, a condition of which was that the owner for the time being of Lot 50 maintain the area subject to the exclusive use right, the owner of Lot 50 accepted an obligation to maintain that area. Upon acquiring Lot 50 Ms Worrall became subject to that obligation.
5. Since the exclusive use right extends to the entirety of the area which constitutes the roof of the balcony, the applicant is obliged to maintain and repair the entirety of that area.
6. A plan included by the experts in their joint report (Tender Bundle page 585) discloses that the portion of the slab which constitutes the roof of the balcony on level 12 is a relatively narrow area extending from the south west corner of the roof terrace along the western side and about halfway along the northern side. As so delineated, it excludes all three areas where the ponding is occurring, with the possible exception of a small part of the area on the western side of the deck closest to the spiral staircase.
7. Nevertheless, regardless of where the ponding has occurred, rectification is necessary to the entire deck.
8. I find that the Owners Corporation is responsible for rectification of the bulk of the roof terrace, but that it is not responsible for the maintenance and repair of the entirety of the roof terrace. Certain parts of the rectification work, such as the installation of an additional drain, can be seen to be the repair of the part of the deck which is the responsibility of the Owners Corporation. Other parts, such as the construction of a landing to the spiral staircase, constitute repair of the part of the deck for which Ms Worrall is responsible.
9. In respect of other parts of the rectification work, if it is not possible to assess the cost of rectification of the area the responsibility of the applicant separately from the cost of rectification of the balance of the roof terrace, it would be appropriate that the cost of rectification work be shared by the parties in proportion to the respective areas involved.
10. Although the plan on page 585 of the Tender Bundle does contain grids which might permit some estimation of the relative proportions of the respective areas, I do not consider it appropriate that I seek to undertake that task. If the parties cannot agree on the allocation of the costs of rectification of the roof deck, the parties may make application for further directions.
11. The Owners Corporation made an alternative submission that the Owners Corporation has not breached s 106 of the Strata Schemes Management Act in that the Owners Corporation had undertaken investigations which had not supported the applicant's claim that the drainage system was inadequate.
12. In circumstances where the applicant has abandoned her claim to compensation in respect of the Owners Corporation's alleged failure to fulfil its duties pursuant to s 106 of the Strata Schemes Management Act, it is not necessary to determine that issue. I find that the Owners Corporation's obligation pursuant to s 106 does require it to rectify the inadequate falls on the roof deck, apart from the area which is the responsibility of the owner, and I will so order.
13. Both parties sought an opportunity to make submissions concerning the costs of the proceedings. I note that, by the application as originally filed, Ms Worrall sought compensation but did not specify an amount.
14. Although the applicant's written submissions referred to the Owners Corporation's submission concerning responsibility for the roof deck as "embarrassing", "misconceived, without merit and lacking in substance" and "ridiculous, frivolous and vexatious", I have found that the Owners Corporation's submission is correct to some extent.
15. My preliminary view is that, as both parties have had some success in the proceedings and the issues were not clear cut, it is not appropriate to make any order concerning the costs of the proceedings. Nevertheless, I will make provision for submissions to be filed in the event either party seeks a different order. The parties were agreed that any question of costs can be dealt with on the basis of written submissions and without a further hearing.
16. My orders are: 1. Order pursuant to s 232 of the Strata Schemes Management Act 2015 (NSW) (SSMA) that the Owners Corporation - Strata Plan No 43357, carry out the remedial work set out in the joint report of Michael Ilievsky, John Riad and Daniel Lee dated 21 June 2021 (Joint Report) in respect of Item 2, the cavity flashing defect, within six months of the date of these orders. 2. Order pursuant to s 232 of the SSMA that the Owners Corporation - Strata Plan No 43357 undertake, in co-operation with the applicant, the remedial work set out in the Joint Report in respect of Item 3, the inadequate drainage and fall of the roof terrace within Lot 50, within six months of the date of these orders. 3. Note that the Owners Corporation is responsible for the rectification of that part of the roof terrace which does not form the roof of the balcony to Lot 50. 4. Grant the parties liberty to apply for directions in the event the parties cannot agree on the appropriate allocation of the costs of rectification in respect of Item 3 in the Joint Report. 5. The application is otherwise dismissed. 6. Unless either party files written submissions within 14 days of the date of this decision seeking an alternative order in relation to the costs of the proceedings there will be no order in relation to the costs of the proceedings. 7. If either party files submissions in accordance with order (6), the other party may file submissions in response within a further 14 days. (8) If no submissions are filed in accordance with orders (6) and (7), there will be no order as to the costs of the application.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 November 2021