Kirk v The Owners - [2017] ACAT 102

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

KIRK v THE OWNERS – UNITS PLAN NO 2992 (Unit Titles) [2017] ACAT 102

UT 6/2017
Catchwords: UNIT TITLES – owners corporation powers and duties – maintenance and repair of common property – water pooling on balcony – defective building work – agreed scope of repair works to balcony – water ingress to property from balcony – whether owners corporation liable for internal damage – common law negligence – owners corporation duty of care – reasonable foreseeability of internal damage

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 18, 48

Strata Scheme Management Act 1996 (NSW) ss 62
Unit Titles (Management) Act 2011 ss 9, 16, 24, 31, 102 125, 129
Unit Titles Act 2001 ss 15

Cases cited:Bennett v Owners Units Plan 932 (Unit Titles) [2016] ACAT 57
Castro v Owners Unit Plan No 246 [2016] ACAT 111
Garcia v The Owners – Units Plan 10 [2017] ACAT 91
McElwaine v The Owners Strata Plan Number 75975 [2017] NSWCA 239
Ridis v Strata Plan 10308 [2005] NSWCA 2
The Owners Strata Plan 50276 v Thoo [2013] NSWCA 270

Tribunal: Presidential Member E Symons

Date of Orders:  5 December 2017
Date of Reasons for Decision:         5 December 2017
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          UT 6/2017

BETWEEN:BRIDGET YVONNE KIRK
Applicant
AND:THE OWNERS – UNITS PLAN NO. 2992
Respondent

TRIBUNAL: Presidential Member E Symons

DATE:5 December 2017

ORDER

The Tribunal orders that:

Within 42 days the Owners Corporation procure with AES Homes the remediation of the external works as contained in Annexure A to these orders.
The Owners Corporation pay AES for the external works in Annexure A.
Within 14 days of these Orders the Owners Corporation arrange a builder to inspect and quote on necessary repair work to the interior of unit 3/12 Challis Street, Dickson (the internal works).
Within a further 21 days the Owners Corporation provide the quotation referred to in Order 3 to the Executive Committee of the Owners Corporation to approve the cost of the internal works.
Within a further 42 days the Owners Corporation procure the remediation of the internal works.
The Owners Corporation pay for the costs of the internal works.
The applicant do all things necessary to provide access to the contractor engaged by the Owners Corporation to undertake the works in orders 1, 3, and 5.
The Owners Corporation pay $145.00, being the filing fee paid by the applicant, to the applicant by close of business 22 December 2017.
The respondent has liberty to apply to the Tribunal on three days’ notice in the event of a failure by the applicant to comply with order 7.
That the applicant has liberty to apply to the Tribunal on three days’ notice in the event of a failure by the respondent to comply with orders 3, 4 and 5.
………………………………..
Presidential Member E Symons

REASONS FOR DECISION

Background

The applicant is the owner and occupier of a unit (

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kirk v The Owners

Details

AGLC: Kirk v The Owners [2017] ACAT 102
Case: [2017] ACAT 102
Decision Date: 5 December 2017

CaseChat Overview and Summary

In the Australian Capital Territory Administrative Tribunal, Kirk brought proceedings against The Owners Corporation, concerning issues related to water ingress and subsequent damage in his unit within a multi-unit property. The dispute arose from alleged inadequate drainage, leaking pipes, and water accumulation in the walls of the unit, which Kirk claimed led to significant internal damage. The Tribunal was tasked with determining whether the Owners Corporation was responsible for the maintenance and repair of the unit, and if so, to what extent.

The primary legal issue before the Tribunal was whether the Owners Corporation had breached its statutory obligations under the Unit Titles Act 1972 (ACT) by failing to address the water ingress and resultant damage to Kirk's unit. The Tribunal considered whether the Owners Corporation was required to remedy the deficiencies in the unit's design and construction that led to the water ingress and damage. This involved examining the condition of the unit at the time of purchase, the Owners Corporation's responsibilities under the Act, and the adequacy of the inspection and subsequent remedial actions taken.

The Tribunal concluded that the Owners Corporation was indeed responsible for the maintenance and repair of Kirk's unit, including the rectification of the water ingress issues. The Tribunal found that the Owners Corporation had failed to properly address the drainage issues on the unit's balcony, leading to pooling of water which subsequently saturated the internal walls. The Tribunal accepted Kirk's evidence that the water ingress had caused significant damage to the internal walls, plaster, and skirting of the unit. The Tribunal ordered the Owners Corporation to undertake specified external and internal works to remediate the damage, and to pay for the costs of these works. The Tribunal also ordered the Owners Corporation to pay Kirk's filing fee and granted Kirk the right to apply for further orders if the Owners Corporation failed to comply with certain terms of the orders.

In summary, the Tribunal found that the Owners Corporation had neglected its duty to maintain Kirk's unit, resulting in water ingress and internal damage. The Tribunal mandated the Owners Corporation to remediate the external and internal works, and to compensate Kirk for the costs associated with these works and the filing fee.

Orders

Orders of the court

The Tribunal orders that:

Within 42 days the Owners Corporation procure with AES Homes the remediation of the external works as contained in Annexure A to these orders.

The Owners Corporation pay AES for the external works in Annexure A.

Within 14 days of these Orders the Owners Corporation arrange a builder to inspect and quote on necessary repair work to the interior of unit 3/12 Challis Street, Dickson (the internal works).

Within a further 21 days the Owners Corporation provide the quotation referred to in Order 3 to the Executive Committee of the Owners Corporation to approve the cost of the internal works.

Within a further 42 days the Owners Corporation procure the remediation of the internal works.

The Owners Corporation pay for the costs of the internal works.

The applicant do all things necessary to provide access to the contractor engaged by the Owners Corporation to undertake the works in orders 1, 3, and 5.

The Owners Corporation pay $145.00, being the filing fee paid by the applicant, to the applicant by close of business 22 December 2017.

The respondent has liberty to apply to the Tribunal on three days’ notice in the event of a failure by the applicant to comply with order 7.

10.

That the applicant has liberty to apply to the Tribunal on three days’ notice in the event of a failure by the respondent to comply with orders 3, 4 and 5.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

On 20 May 2013 the applicant notified the Owners of UP 2292 (Owners Corporation) by notification to its EC and by notification to Link, of inadequate drainage of water from the unit’s balcony, leaking pipes and storage of water in the wall of the unit causing rot to the internal wall. Link authorised an inspection by Peter Leary from Peak Consulting who inspected the unit on 16 July 2013 and provided a written report dated 18 July 2013 (Peak Report)[5] to Link which stated, inter alia:[5] Ibid page 53Findings – …3.4 We observe that the balcony has no visible upturns of membranes and/or skirting tiles present.…3.6 We noted a floor waste receptacle to be present at the southern end, adjacent to the air conditioner unit.3.7 We confirmed the floor waste receptacle to be blocked with debris. No water was escaping.3.8 The subject balcony has a large overflow relief outlet which was not found to be operational at the time of inspection as the water would need to pool extensively in order for this receptacle to come into play.3.9 The removal of damaged skirting and subsequent electronic moisture encountered test revealed excessively high moisture levels within the masonry substrate behind the already damaged components.3.10 The removed linings and skirting revealed the presence of mould which is consistent with long term water ingress.…3.12 The direct area of internal damage correlates exactly to the rendered wall which was found to be saturated as a result of pooling water on the subject balcony. It is reasonable to assume that this wall, being devoid of any visible upturn of balcony membrane or skirting tile, combined with the fact that the render was found to be slightly spalling with evidence of failed paintwork, would be allowing water to ingress and rise up the otherwise unprotected masonry where it then saturates the directly affixed plasterboard linings and skirting.3.13 We immediately cleared the surface drainage receptacle of the subject balcony and shortly after this, all pooled water had evacuated from the subject balcony.3.14 A close inspection of this drainage outlet receptacle revealed it to be blocked with debris which had caused the water to pool heavily on the balcony.…Conclusion4.1 As the subject balcony was found to be excessively inundated with pooling water and the balcony has no visible upturn of balcony membrane or skirting tiles we conclude that the localized damage found to the interior of the subject unit is directly resultant of saturation of the masonry wall and directly affixed plaster linings and skirting trims.4.2 A secondary conclusion (not yet proven due to total saturation of the subject masonry) is that the window and sliding door installation may not be properly flashed and as a result of inadequate anti capillary measures moisture which accumulates on the external frames and tracks may not be correctly draining away. The aluminium sub sill and sill flashing of the aluminium sliding door may not have the correct anti capillary breaks which are causing moisture ingress to the corner extremities where it will then be able to wick across the subject masonry wall.4.3 Due to the overwhelming amount of water found on this balcony we cannot form any additional conclusions other than the water ingress at the perimeter of the balcony and masonry wall.…