HAYTER and THE OWNERS OF ICON 60 NEWCASTLE STREET
[2012] WASAT 131
•27 JUNE 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: HAYTER and THE OWNERS OF ICON 60 NEWCASTLE STREET [2012] WASAT 131
MEMBER: MR T CAREY (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 27 JUNE 2012
FILE NO/S: CC 87 of 2012
BETWEEN: BRIAN CHRISTOPHER HAYTER
Applicant
AND
THE OWNERS OF ICON 60 NEWCASTLE STREET
Respondent
Catchwords:
Strata titles Repair of common property Cracking in wall Strata company's obligation to keep in good and serviceable repair
Legislation:
State Administrative Tribunal Act 2004 (WA), s 60(2)
Strata Titles Act 1985 (WA), s 35(1)(c), s 83(1)
Result:
Application successful
Category: B
Representation:
Counsel:
Applicant: Selfrepresented
Respondent: Selfrepresented
Solicitors:
Applicant: Self-represented
Respondent: Self-represented
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant sought a number of orders against the respondent in relation to its obligations as a strata company in relation to the common property of a strata complex. Ultimately, the only claim which remained for determination concerned visible cracking of a wall in a car park.
Despite the respondent's opposition to any order based on the lack of evidence of any structural deficiency, the Tribunal considered the claim had been made out.
In arriving at its decision, the Tribunal considered the nature of the strata company's statutory obligation to repair common property, assisted by a dictionary definition of 'repair'. It found that there was no basis for limiting the obligation to structurally deficient buildings. Rather, the obligation might arise wherever some decay or damage is present, whatever the cause.
Background
The applicant, Brian Hayter (Mr Hayter), is an owner of a lot in a 30 lot residential strata complex in Northbridge.
Mr Hayter filed his application to the Tribunal on 17 January 2012. The application was made under s 83(1) of the Strata Titles Act 1985 (WA) (ST Act) and sought the following relief:
1.The light to the garage, toilet and the inside hall on the ground floor to be identical in operation to the light in the stairwell. [That is,] permanently on when inadequate light.
2.The broken security lights to the rear car park repaired and to be permanently on between the hours of 6 pm and 6 am.
3.Repair the visible cracks in the eastern wall of the garage which appear behind [car park] numbers 3 and 5 and 1 and 13.
Although the application was originally brought against Mr John Squarcini, on the basis that Mr Squarcini is the owner of greater than 50% of the lots and has apparently been delegated certain responsibilities for maintaining the building, at the first directions hearing on 9 February 2012, the Owners of Icon 60 Newcastle Street (strata company) was substituted as respondent as the body legally responsible for the repair and maintenance of the common property.
At a further directions hearing on 8 March 2012, Mr Hayter was ordered to file and serve evidence relied upon in support of the order sought, in addition to evidence already filed. The respondent was directed to file and serve any evidence upon which it relied in opposition to the order sought. Finally, it was directed that, subject to any further order, the matter would be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).
Upon documents being filed by the respective parties as directed, I brought the matter on for a further directions hearing in order for the parties to provide further evidence and submissions in relation to four nominated issues. In the event, by order made on 11 June 2012, the applicant withdrew the claims regarding provision of permanent lighting and the application was to that extent withdrawn. This was done in light of admissions by Mr Hayter that, despite raising the question of the provision of permanent security lighting in various fora, he had never actually moved that a resolution to that effect be adopted by the strata company.
There was also a discussion at the directions hearing on 11 June 2012 regarding the claim concerning the broken security lights to the rear car park. Mr Squarcini, who appeared on behalf of the strata company, indicated that that was a matter that would be rectified that afternoon.
Further terms of the order made on 11 June 2012 were that the Tribunal would inspect the cracks in the wall and the rear car park light on 15 June 2012, and thereafter, the matter would be determined entirely on the documents.
At the Tribunal's inspection, Mr Hayter said that the rear car park lights were now operating correctly (leaving aside the question of whether they should be used in a security capacity).
This left as the sole question for determination by the Tribunal the complaint regarding cracks in the eastern wall of the garage. It is that complaint to which the remainder of these reasons is concerned.
Issue for the Tribunal
The question I must determine is whether, given the current condition of the eastern wall of the garage at the rear of the building, any action is required on the part of the strata company in order for it to comply with its duty under s 35(1)(c) of the ST Act to:
Keep in good and serviceable repair, properly maintain and, where necessary, renew and replace
(i)the common property …
…
and to do so whether damage or deterioration arises from fair wear and tear, inherent defect or any other cause[.]
Evidence going to the condition of the wall and the respondent's position
Attached to the application was a series of three photographs in A4 size and of high resolution. The photographs depicted what appeared to be obvious and significant cracking in a wall.
What could not be discerned from merely looking at the photographs was the dimensions shown, nor their relationship with each other. On being asked about this at a directions hearing, Mr Hayter indicated that one of the photographs disclosed a crack of some 2 3 metres in length.
On 15 June 2012, I attended at the parcel and was shown the relevant areas of the eastern wall of the car park by Mr Hayter in the company of another owner.
My inspection assisted in identifying the areas depicted in the three original photographs. All of those areas were at the northern end of the eastern wall, in respect of essentially the same crack. Indeed, two of the photographs were found to represent a progression of one another. The length of that crack was also confirmed as being every part of 3 metres. The crack basically traverses at an angle most of the height of the wall.
What the inspection also clarified was that the three photographs were of the wall behind car parks 3 and 5, and did not display that part of the wall behind car parks 1 and 13, which is also the subject of complaint. Although consisting of less defined cracking, those areas were nevertheless apparent on the most casual observation and in a number of specific locations.
The areas to which I have just referred not being the subject of any photographic evidence, I indicated to Mr Hayter that he should produce photographic evidence depicting them, and file and serve that as soon as possible. This occurred (at least to the extent of being filed) by the filing of six new photographs of the wall behind car parks 1 and 13. Those photographs contained a clear depiction of the areas described above.
The attitude of Mr Squarcini, reflected in both written submissions and statements made by him in the course of the third directions hearing, was that the condition of the wall was not such that any remedial action of the strata company was required. This was put on the basis that the wall is structurally sound. Further, in response to a suggestion that there may be water ingress issues with the wall, Mr Squarcini relied upon a report from the builder which indicated that moisture tests had been conducted on the wall indicating readings of either 0% or below 1%. According to the builder, moisture is a problem when readings of 12% are apparent.
Consideration
As I have already indicated, the cracking of the eastern wall of the rear car park is both apparent and of significant dimension. There are two separate areas. The cracking behind car parks 3 and 5 is well defined and surrounded by both darker colouring when compared with the base paint of the wall and what appears to be a salt or other residue over much of the affected area. In the case of the cracks behind car parks 1 and 13, the cracks are not as well defined, although visible at close range. These cracks are most notable for their accompanying dark shading when compared with the original paintwork, including one area of approximately 1 metre square. To the immediate left of this area is an elongated series of stains from the top of the wall to the bottom, which exhibits the appearance of residue found in the cracks behind car parks 3 and 5.
The duty of the strata company, as expressed in s 35(1)(c) of the ST Act, is introduced by the words 'keep in good and serviceable repair'. The apposite definition of 'repair' in the Macquarie Concise Dictionary (Revised Third edition, 2004) is 'the good condition resulting from repairing: to keep in repair'. The meaning of 'repairing' is to be derived from the definition of the verb 'repair' in the same dictionary of 'to restore to a good or sound condition after decay or damage; mend: to repair a clock'.
I set out earlier the submissions of the respondent, or at least of Mr Squarcini. Those submissions are predicated upon the necessity of a structural defect (and, in the context of a suggestion of water ingress, an impermissible moisture reading), with the wall being identified in order for any failure by the strata company in terms of its s 35(1)(c) of the ST Act obligation to arise.
There is nothing in the words used in s 35(1)(c) of the ST Act, having regard to the definition of 'repair' set out above, to limit the obligation of the strata company in the manner suggested. The obligation is to keep the common property in good and serviceable repair, nothing more. Where a building which is part of the common property experiences some decay or damage, the strata company may be required to take restorative action. Section 35(1)(c) of the ST Act itself stipulates that the strata company must, where necessary, renew and replace common property, in order to achieve the required outcome that the common property be 'in good and serviceable repair'. This is so, regardless of whether the defect is of a structural nature.
It may well be that the only impact of some deficiency in the condition of common property is aesthetic. That fact does not, of itself, mean that the strata company is not obliged to take action. Quite apart from the offence that owners might take to the appearance of the common property in which they have an interest, to allow it to remain may well have commercial ramifications. An obvious example would be if a proprietor is intending to sell his or her lot. It is widely understood that the attitude of prospective purchasers will be affected by matters of pure aesthetics, which might be manifested in a decision to purchase or not, the price which someone is prepared to pay, or both.
There may, of course, be cases where the extent of any damage or decay is minor, in relation to which it may be considered that no duty arises on the part of the strata company to undertake restorative action. The extent of the cracking and other elements of the appearance of the wall in question in the two separate areas is such that this is not a relevant consideration in this case. The damage or decay in the two broad areas identified by Mr Hayter is so obvious and extensive that the only sensible conclusion is that there is a want of good and serviceable repair, such that the strata company should be required to remedy it.
The Tribunal's order, although substantially in terms of the order sought, reflects more accurately the nature of the strata company's statutory obligation to repair in the context of the identified defects.
Order
An order will be issued in the following terms:
The respondent shall repair and renew the areas of the eastern wall of the garage behind car parks 3 and 5 and car parks 1 and 13 respectively, by repairing the visible cracks and restoring the appearance of the wall to its original condition. All works shall be to a good tradesmanlike standard and shall be completed within 28 days of the date of this order.
I certify that this and the preceding [28] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR T CAREY, MEMBER
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