JAMIESON and THE OWNERS OF 163 SCARBOROUGH BEACH ROAD, SCARBOROUGH - STRATA PLAN 6660

[2006] WASAT 234

JAMIESON and THE OWNERS OF 163 SCARBOROUGH BEACH ROAD, SCARBOROUGH - STRATA PLAN 6660 [2006] WASAT 234

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 234
Act:	STRATA TITLES ACT 1985 (WA)
Case No:	CC:143/2006	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	MR C RAYMOND (SENIOR MEMBER)	Delivered:	15/08/06
No of pages:	13	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	KELLI JAMIESON THE OWNERS OF 163 SCARBOROUGH BEACH ROAD, SCARBOROUGH - STRATA PLAN 6660
Catchwords:	Strata Titles Act 1985 (WA) – Alleged failure to comply with maintenance obligations – Strata company aware of maintenance issues – Levy increased to provide funding – Whether intervention by Tribunal appropriate – Liability for painting of ceilings
Legislation:	Strata Titles Act 1985 (WA), s 3A, s 3(2), s 35, s 35(1)(c), s 79(2), s 81(7), s 85, s 103H(8)
Case References:	Nil Nil
Orders	1. The application is dismissed.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : STRATA TITLES ACT 1985 (WA) CITATION : JAMIESON and THE OWNERS OF 163 SCARBOROUGH BEACH ROAD, SCARBOROUGH - STRATA PLAN 6660 [2006] WASAT 234 MEMBER : MR C RAYMOND (SENIOR MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 15 AUGUST 2006 FILE NO/S : CC 143 of 2006 BETWEEN : KELLI JAMIESON

Applicant

AND

THE OWNERS OF 163 SCARBOROUGH BEACH ROAD, SCARBOROUGH - STRATA PLAN 6660
Respondent

Catchwords:

Strata Titles Act 1985 (WA) – Alleged failure to comply with maintenance obligations – Strata company aware of maintenance issues – Levy increased to provide funding – Whether intervention by Tribunal appropriate – Liability for painting of ceilings

(Page 2)

Legislation:

Strata Titles Act 1985 (WA), s 3A, s 3(2), s 35, s 35(1)(c), s 79(2), s 81(7), s 85, s 103H(8)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant : Mr P Munday (Acting as Agent)
Respondent : Mr M Rodriguez (Acting as Agent)

Solicitors:

Applicant : N/A
Respondent : N/A

Case(s) referred to in decision(s):

Nil

Case(s) also cited:

Nil

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REASONS FOR DECISION OF THE TRIBUNAL:

Summary of the Tribunal's decision

1 The applicant applied for orders requiring the respondent to investigate the cause of alleged water ingress to the applicant's lot and to have the necessary repairs carried out, together with an order that the ceilings of the applicant's lot be repaired, sealed and repainted. The applicant also applied for an order in respect of costs.

2 The Tribunal found that the various areas of the ceilings which were stained, with the exception of staining near a light fitting in the kitchen and water damage to the bedroom ceiling, were attributable to water ingress which occurred some time ago. It was not related to the acknowledged fretting of the tiles. The most likely cause was through vent piping acting as a conduit for water blown into the pipes through the "Chinaman's hat" covers during a rainstorm, or rainstorms, associated with very strong winds. That water ingress did not result from any failure to maintain common property on the part of the respondent. The Tribunal found that the marking or staining near the light fitting in the kitchen was probably due to heat transmission from the light.

3 In relation to a particular event which occurred on 21 June 2005 in which the applicant's bedroom ceiling sustained water damage, the Tribunal accepted the expert evidence of the respondent's maintenance firm that the cause was that a small section of the secret gutter between adjoining units had been blocked with leaf litter. As the Tribunal had the maintenance firm carry out a roof inspection one month prior to this event, the Tribunal was not satisfied that the blockage had occurred as a result of a failure to maintain the common property.

4 In relation to the complaint concerning the roof as a whole, the Tribunal noted that the respondent was aware of the problem, that it had been dealt with during an Annual General Meeting held on 18 August 2005 as a result of which the levy had been increased to provide funds to cover the cost of future work. The Tribunal considered that the appropriate forum for consideration of such matters was a general meeting of the strata company. Therefore, it was for the respondent in general meeting to determine how the problem should best be addressed. The respondent had resolved at the Annual General Meeting to review the matter at the next Annual General Meeting.

5 The Tribunal observed that members needed to be properly informed about the anticipated life of the existing roof and the cost of replacing it,

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so that an informed decision could be made as to how to fund the necessary work. The Tribunal recommended that the parties cooperate with each other with a view to ensuring that the relevant information was available and placed before members, but observed that it remained open to the applicant, in the absence of cooperation, to put a detailed proposal to the respondent at the next Annual General Meeting, or at an Extraordinary General Meeting, which would then be a reviewable decision under s 85 of the Strata Titles Act 1985 (WA).

6 The Tribunal further found that it did not have power to award costs. The application was therefore dismissed.

The application

7 The applicant seeks orders as follows:

1. That the cause of water ingress via the roof be investigated and repaired only by qualified and insured tradespersons, and if the cause is found to be defective tiles, the tiles be repaired or replaced if found to be necessary;

2. That the damaged ceilings inside Unit 2 be repaired, sealed and completely repainted – not patch painted – by qualified and insured tradespersons;

3. That costs incurred in the making of this application be awarded to the applicant in the sum of $600.

Factual background

8 The only material dispute of fact relates to the cause of some staining to the applicant's ceiling. The relevant facts are not otherwise in dispute, and where there is any issue between the parties, it is not material to the determination of the application.

9 The applicant is an owner of a lot on strata plan 6660 registered on 9 February 1979 which comprises 14 single tier lots. As none of the criteria set out in s 3A of the Strata Titles Act 1985 (WA) (ST Act) apply, the boundaries of each lot, in accordance with s 3(2) of the ST Act are the inner surface of the walls corresponding substantially with the vertical boundaries delineated on the floor plan and the horizontal boundaries are the floor or ceiling in the building to which the strata plan relates.

(Page 5)

10 Until approximately seven years ago, all of the lots were owned by pensioners. Currently only one lot is occupied by a tenant and nine remain owned by pensioners. Because the majority of owners have not been able to afford large levies, the respondent has taken a conservative approach to the setting of levies, which it appears could be achieved, in part, because over the years, owners have helped with the carrying out of maintenance on a voluntary basis.

11 On or about 21 May 2005, the applicant reported to the respondent that her ceilings had suffered water damage. The respondent arranged for its usual maintenance contractor to attend, being Mr Les Smith, who is the proprietor of a firm Custom Handyman Services.

12 Included as part of the respondent's documents filed in opposition to the application is a report from Custom Handyman Services dated "April 2006". This reflects that the business is covered for public liability insurance, that Mr Smith has tertiary qualifications, which include a study of ceramics and ceramics technology, that he has worked in the maintenance industry for some 25 years and has owned and operated the business for more than six years. Custom Handyman Services had provided general maintenance, on the respondent's instructions, for the past four years.

13 Mr Smith attended at the applicant's lot on 22 May 2005. The relevant portion of his report reads as follows.

"A small section of the secret gutter between Unit 2's roof and the adjoining unit's parapet wall was blocked with leaf litter. This caused the excess storm water from the previous day to build up behind the blockage and flow into the ceiling area of unit 2. The water damage was largely confined to the bedroom wall immediately under the leak region.

The blockage was removed and the water affected area in the roof was dried and cleaned.

The owner was advised to contact their [sic] insurer for any further repairs. I was also shown several small stained areas in the kitchen and laundry of unit 2. These appear to be older stains due to the yellowing colour and that they were dry. Inspection from the roof into the ceiling also confirmed these areas were dry and not recent. Vent piping appeared to be the most likely conduit for the water which may have blown into the venting pipes through the 'Chinaman's hat' covers during

(Page 6)

a rainstorm associated with very strong winds. Bleach, largely cleared the stains and the flashing around the pipes and tiles was resealed with roofing silicon sealant."

14 The report also referred to an attendance by Mr Smith on 22 May 2005. The invoice of that date shows that the attendance was to enable Mr Smith to supply and install mouse and rat poison baits in the roof space of Unit 2. The invoice also reflects that an inspection of the roof gutters for leaks and general condition was carried out. The invoice then concluded with the following note.

"Recommendation – Some gutters will require replacement immediately. Roof tiles are fretting underneath and will require replacement soon. Will advise possibilities."

15 The report from Custom Handyman Services states in relation to the attendance on 22 May 2005 as follows:

"During roof tile inspection, the underside of the tiles was observed to be fretting and showing advanced signs of deterioration from water condensing on the underside of tiles. I contacted the technical adversary [sic] section of Bristile Clay Rooftile Manufacturers to confirm my observations. … They confirmed the probable cause of the fretting was water condensing on the underside of the tile, and could not suggest any short term fix for the problem other than replacing all roof tiles in the complex.

I am not aware of any of the 16 units [sic] in the complex experiencing any roof leaks as a result of the fretting of the underside of the roof tiles. The few water leaks experienced from other units over the years have been the result of badly cracked or broken roof tiles. These have been sealed or replaced when required. New tiles for this type of damage would result in the same outcome. The fretting is weakening the tiles, and people walking on the roof are still the most likely cause of any roof tile damage. The fretting is probably not an immediate threat to the units and they have been advised to begin to take action to save the funds necessary for the complete replacement of the roof tiles of all the units in the complex."

16 The respondent also provided a report dated 18 April 2006 from Mr Gillian Michel, of Pretl and Williams, wall covering and painting contractors. Mr Michel attended at the applicant's unit to repair and paint
(Page 7)

the bedroom ceiling of the applicant's unit. As a result of complaints made to him during the carrying out of the job by the applicant's mother, Mrs Jamieson, he inspected other stains to the ceilings which she alleged were due to water damage. Mr Michel observed that the stains appeared to be very old. Mr Michel's instructions were to paint only the bedroom ceiling but he advised Mrs Jamieson that, while he would paint the entire ceiling in that room, he would attempt to touch up the marks about which she complained, but that this would not include the painting of all the ceilings.

17 Mr Michel did not complete the work and made arrangements to return the following week to complete it, due to other commitments. He states that he was not able to contact Mrs Jamieson, although no reason was given. Understandably, Mrs Jamieson was annoyed, and when Mr Michel returned two weeks later, she refused him access to complete the work. Mrs Jamieson accused Mr Michel of being "a shifty person" and queried whether he had a ticket as a painter. Mr Michel informed her that he worked for a registered painting company and that he had been doing this type of work for many years. Notwithstanding his having apologised for not having come back the previous week, Mrs Jamieson declined to permit him to continue the work.

18 The applicant has provided a short report from G.E.M. Maintenance dated 28 February 2006. In that report, which is signed by Mr G Mackintosh, it is stated that he inspected the property and that he:

"found water damage to sealing [sic] in the following rooms. Bedroom 1 and 2, lounge area, kitchen, laundry & toilet. Damage needs to be repaired because of health risk to people who reside at the residence.

The roof condition appears to be in poor condition and requires repair to stop repeat of water damage.

The roof is leaking at least [sic] six points resulting in water damage to cieling [sic][.]

[T]his has been leaking for a while as it take [sic] a fair amount of water to damage a cieling [sic]."

19 Mrs Tanya Skinner, a member of the Council of the respondent, filed a response on behalf of the respondent. In that response, she stated that she was allowed to inspect the applicant's ceiling. She stated:
(Page 8)

"Mrs Jamieson proceeded to show me a number of slight discolourings to other ceilings in her house. Mrs Jamieson claimed that these were due to water leakage although in Jan '03 and June '05 $255 had been spent on rodent services as she had previously insisted they were caused by rats in the roof.

… What I thought was strange was that the markings she showed me I had on my own ceilings and had seen in at least two other units. I thought the ceilings were discoloured due to age in my unit and had repainted them myself as had the other two owners whose places I had seen the marks (Nos 10 and 12). Another point I wish to make is that the other three units I had seen had the same mark in exactly the same place as Mrs Jamieson – next to the light in the kitchen ceiling. If the mark was due to water leakage as Mrs Jamieson insisted, how could we all have the same mark in the same place? I thought it more likely that it was discolouring due to the light."

20 The respondent provided a letter from the former owners of the applicant's unit in which they advise that at the time of sale, there was a small discolouration in the ceiling where the light fitting had been patched up.

21 Invoices provided by the respondent show that $195 was paid to Stewart's Pest Control in January 2003 and the invoice from Custom Handyman Service, already referred to, dated 22 May 2005, reflected a charge of $60 for the supply and installation of mouse and rat poison.

22 The Annual General Meeting (AGM) of the respondent was held on 18 August 2005. The Minutes of the AGM are not dated, but the applicant and one of the owners who attended, Mr Dunn, fix that date as the date of the meeting.

23 The condition of the roof was discussed at the AGM. It was agreed that the levy should be increased with effect from September 2005 by an amount of $10 to a total of $60 per month "in case of future work that may be needed" and it was agreed that the issue would be readdressed at the next AGM. The various reports referred to above were not then available.

24 The applicant filed a submission by way of reply after having had the opportunity to inspect the submissions filed by any of the persons referred to in s 79(2) of the ST Act. Submissions were received from five lot

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owners. The applicant was also entitled to respond to the information provided by the respondent.

25 All of the submissions filed supported the position of the respondent. It is apparent from the responses that there is a perception that Mrs Jamieson, the mother of the applicant, is endeavouring to exercise control over, or influence, the respondent, because of differences which have arisen between her and the secretary and treasurer. Mrs Cousens has occupied those offices for some 30 years, and is held in the highest esteem by all of the owners who filed submissions, in which they referred in glowing terms of her dedication and service to the respondent.

26 The applicant, in the submission by way of reply, has focused on the true issues for determination by the Tribunal and submits that "emotiveness appears to have clouded the understanding of need for the maintenance of the leaking roof at Unit 2, caused by water ingress permitted by fretting roof tiles".

27 The applicant acknowledges that Mrs Jamieson advised at the AGM, on 18 August 2005 that the roof was not then leaking but stresses that "the fact remains that the ceiling at Unit 2 clearly displayed evidence of previous leakage, the ceilings are stained and the strata company did not repair the fretting tiles, which were the cause of the leaks". The applicant did dispute that work had been carried out above Unit 2, as reflected in an invoice dated 22 June 2005 from Custom Handyman Services. This reflects, in relation to Unit 2, "supply and install weatherproof flashing and clean secret flashing/guttering" for which $70 was charged. The applicant says no work was carried out above Unit 2 but that "A form of flashing was installed along the roof edge of the adjacent unit".

The parties' contentions

28 The applicant contends that the respondent is in breach of its maintenance obligations under s 35(1)(c) of the ST Act to maintain the common property and consequently, that the orders sought in the application, should be made. The applicant also contends that she incurred legal costs as a result of queries raised by the Tribunal during a directions hearing and that it is "fair and reasonable" that the respondent should reimburse such costs.

29 The respondent, in effect, contends that it has adequately discharged its obligations and disavows any responsibility for legal advice sought by the applicant.

(Page 10)

Considerations

30 The reports of Mr Smith and Mr Mackintosh are capable of being reconciled. They agree that the damage to the ceiling in one of the bedrooms was caused by water ingress. Mr Mackintosh's report is not detailed. It refers to other areas of water damage. Mr Smith says that he found several small stained areas in the kitchen and laundry. He, and he is corroborated by Mr Michel, considered that the staining had occurred some time previously. It was dry when it was inspected the very day after a heavy fall of rain. Mr Smith thought that it appeared to be associated with the position of venting pipes and that this may have been caused by rain being blown in through the "Chinaman's hat" during rainstorms associated with very strong winds. I conclude that the steps he took to apply silicon ceiling was a precautionary measure, because he did not consider that that was a likely cause of water ingress.

31 Mrs Skinner suggests that the staining may be due to rodent baiting. That is not supported by the expert evidence provided, and it is noted that Mr Smith was responsible for part of the baiting and one would expect that he would have raised that as a possible cause, if it was at all likely.

32 Mr Smith has had maintenance responsibilities in respect of the development for some four years. His report is far more detailed than that of Mr Mackintosh, but as stated, they are not necessarily inconsistent. I accept Mr Smith's report in all respects save in relation to the staining near the light fitting in the kitchen, further dealt with below. The issue, therefore, is whether the staining, which has been caused by some water ingress, is the responsibility of the respondent.

33 The respondent's obligation under s 35(1)(c) of the ST Act is to maintain the common property. The inner surface of the ceiling is not common property, and the applicant's case must obviously be based on establishing that the cause of the damage was a failure to maintain common property in some respect. In my view, that is not established, in respect of the various locations where it has been described there has been some discolouring of the ceiling, which could be attributed to water ingress in the vicinity of venting pipes.

34 In relation to the slight discolouration near the light fitting in the kitchen ceiling, based on the evidence of Mrs Skinner and that of the previous owners of Unit 2, I find that to be caused by the effect of heat from the light.

(Page 11)

35 In respect of all of the above areas, there is no basis on which it is open to find that the respondent has failed to adequately maintain the common property, and accordingly, it can bear no responsibility for the repainting of the areas concerned.

36 In my view, the same conclusion applies in relation to the water damage to the bedroom which resulted in Mr Smith's attendance on 22 June 2005. It is noted that Mr Smith had inspected the gutters for leaks and general condition on 22 May 2005. Within one month, it was found that a small section of the secret gutter between Unit 2's roof and the adjoining unit's parapet wall was blocked with leaf litter. Based on this evidence, I am not prepared to find that the respondent failed to adequately maintain the roof. In any event, the respondent accepted responsibility for the repairs to the bedroom ceiling, and those repairs have not been completed.

37 The case before the Tribunal is whether there has been a breach of s 35 of the ST Act. In my view, for the reasons given above, no breach has been established.

38 Insofar as the issue may be relevant to the question of a potential breach of s 35, I should add that I find no substance in the applicant's assertion, in its replying submission, that no repairs were carried out "above Unit 2". As the applicant recognises, flashing was installed along the roof edge of the adjacent unit. That was obviously the appropriate repair. There is nothing to suggest that, by following that course, the respondent acted inappropriately.

39 It is then necessary to consider the position in relation to the fretting roof tiles. It is clear that the respondent is aware of the problem, and it does not deny its existence. The respondent has addressed the matter in the most appropriate forum, which is an AGM. None of the evidence and information provided gives any indication as to whether any widespread failure of the roof might result. Mr Smith's initial view was that it would require replacement "soon". Notwithstanding that, he has indicated that there is no evidence of fretting causing any existing leakage.

40 Nevertheless, the increase in the levy agreed at the AGM is unlikely to provide sufficient funding for the roof replacement. The schedule of unit entitlements shows that each lot has a unit entitlement of one. Each unit entitlement will be subject to an increase in the levy of $10, to a total of $60 per month, thereby adding only $1680 per annum to the respondent's coffers. At that rate, it is likely to take a number of years

(Page 12)

before the roof can be replaced. It is not established what information was put before the members as the Minutes refer only to "much discussion" having occurred. But for the agreement to review the issue at the next AGM, it might have been open to conclude that the respondent was failing to meet its obligations under s 35 of the ST Act.

41 This is a matter on which the members of the strata company need to be properly informed so that the respondent can make a decision, in general meeting, as to the appropriate course to be followed. In order to be properly informed, there will need to be expert input as to the timeframe within which it would be advisable to replace the roof. Two or more quotations should be obtained for replacement of the roof and should be presented to members so that there is an accurate indication of the likely cost, bearing in mind the timeframe within which funds will have to be accumulated for that purpose, and taking into account that the cost will increase as the date for carrying out the work is extended. These are matters for the strata company, not this Tribunal, at least in the present circumstances, because it is generally not desirable that this Tribunal should endeavour to substitute its own views for that of a majority of members of the strata company. It would not be appropriate to endeavour to define the circumstances in which it is open to the Tribunal to intervene, but the ST Act gives express powers to do so in a number of situations.

42 The Council members of strata companies and their officers are volunteers who often have to dedicate considerable hours to the management of a strata company. It appears that the respondent has been exceptionally well served by a very dedicated secretary and treasurer in Mrs Cousens. It is obvious that, in relation to this particular development, there is a delicate balancing of interests which must take place because the majority of owners are not in a position to afford substantial increases in levies on the one hand, and on the other, those who could afford more significant increases, and even future owners, should not be left with a millstone around their necks because inadequate provision is made for an essential contingent expenditure. It may be that those who cannot bear the cost of a sufficient and proper increase in the levy will have to give consideration as to whether they can afford to continue living within the complex, or may have to look to obtaining funding in some way to assist them. The Tribunal encourages the parties to put aside past difficulties in an endeavour to work to developing a proposal to be put to the members of the strata company at the next AGM, or if it has already occurred, at an Extraordinary General Meeting, so that the issue is considered on a fully informed basis taking into account all interests.

(Page 13)

43 In the event that such a course can not be agreed, it would be open to the applicant to provide the necessary material herself and put a proposal to the respondent, a refusal of which would be expressly reviewable under s 85 of the ST Act.

44 Finally, I turn to the question of legal costs. Section 81(7) of the ST Act provides that the Tribunal cannot make any order for the payment of costs in connection with an application for an order except when allowing an applicant to amend the application, to compensate persons for time unnecessarily spent in connection with the application; or under s 103H(8), which is a section relating to variation of unit entitlements and has no relevance in the present circumstances.

45 To the extent that an order can be made, in circumstances when an amendment has been made to the application, the section contemplates compensating persons who have spent time unnecessarily on the application prior to the amendment. It is not a vehicle by which an applicant, who amends an application, would be entitled to compensation unless, possibly, the other is responsible for the application being made in its original form. In this instance, the applicant did amend the form of orders sought, but the costs incurred had nothing to do with that amendment. The applicant is not entitled to the order sought.

Orders

46 For the above reasons, the Tribunal orders that:

1. The application is dismissed.

I certify that this and the preceding [46] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR C RAYMOND, SENIOR MEMBER