MALUDRA PTY LTD and THE OWNERS OF WINDSOR TOWERS STRATA PLAN 80 - [2017] WASAT 112

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: STRATA TITLES ACT 1985 (WA)

CITATION: MALUDRA PTY LTD and THE OWNERS OF WINDSOR TOWERS STRATA PLAN 80 [2017] WASAT 112

MEMBER: MS N OWEN-CONWAY (MEMBER)

HEARD: 24 TO 29 AUGUST 2016

DELIVERED : 21 AUGUST 2017

FILE NO/S: CC 611 of 2014

BETWEEN: MALUDRA PTY LTD
Applicant
AND
THE OWNERS OF WINDSOR TOWERS STRATA PLAN 80
Respondent

FILE NO/S :CC 612 of 2014

BETWEEN :DARREN MARK STRACHAN
NICOLE JANE STRACHAN
BRENDAN JOHN McCREED
MALUDRA PTY LTD
Applicants
AND
THE OWNERS OF WINDSOR TOWERS STRATA PLAN 80
Respondent

FILE NO/S :CC 156 of 2015

BETWEEN :DARREN MARK STRACHAN
BRENDAN JOHN McCREED
NICOLE JANE STRACHAN
MALUDRA PTY LTD
Applicants
AND
THE OWNERS OF WINDSOR TOWERS STRATA PLAN 80
Respondent

Catchwords:

Common property - Duty to maintain and keep in good and serviceable repair - Duty to renew and replace where necessary - Section 35(1)(c) of Strata Titles Act 1985 - Windows in specific lots - Common property - Close to end of serviceable life - Many replaced by Strata Company - No evidence of windows in lots leaking - General meeting debating manner of replacement of remaining original windows within lots - Not unreasonable to not replace windows in lots - Evidence of common property area window leaking and causing damage - No evidence of process adopted to replace such window - Nonreplacement unreasonable - Section 83(1) of Strata Titles 1985 - No other failure to maintain and renew and replace common property - Levies raised and use of funds - Approval of expenditure and proposed expenditure in budget - no unauthorised expenditure - Turns on own facts

Legislation:

Building Code of Australia 2007
Corporations Act 2011 (Cth), s 5F, cl 11(g)
Strata Titles Act 1966 (WA), s 5(5)
Strata Titles Act 1985 (WA), s 3, s 7(2), s 17, s 32, s 35, s 36, s 42, s 44, s 47, s 51, s 81, s 83(1), s 85, s 94, cl 3, cl 5, cl 11(3), cl 11(4), cl 12, Sch 1, Sch 2, Sch 3

Result:

CC 611 of 2014
Partially successful
Order made pursuant to s 83(1) of Strata Titles Act 1985 (WA)
Otherwise application dismissed pursuant to s 81 of Strata Titles Act 1985 (WA)

CC 612 of 2014
Application dismissed

CC 156 of 2015
Application dismissed

Summary of Tribunal's decision:

The applicants are lot proprietors in a strata scheme. The strata scheme comprises 79 individual lots within a 21 level tower. The Tower was constructed and the strata scheme was registered in 1969. Each lot boundary comprised the inner surface of the vertical boundaries, the upper surface of the floor and the underside surface of the ceiling. The windows comprised part of the vertical boundaries of the lots. The windows are common property and the strata scheme is obliged to keep the same in good and serviceable repair, properly maintain them and where necessary renew and replace the same pursuant to s 35(1)(c) of the Strata Titles Act 1985 (WA) (Strata Titles Act). The windows in issue are the original windows installed during construction in 1969. As a general proposition, the original windows warranted replacement. In all lots, except Lot 39, the original windows were replaced by the Strata Company except for the windows that were proposed to be replaced with doors for access to proposed balconies to each lot. A significant majority of lot proprietors within the strata scheme favoured the construction of balconies but the improvement required a resolution without dissent or unanimous resolution and the relevant motions did not achieve the necessary level of approval from the lot proprietors at general meeting.
There was before the Tribunal no evidence that the windows proposed to be replaced by doors for the balconies in either Lot 39 or Lot 76 leaked as at the date of the hearing although there was evidence that they had leaked in or had been damaged in the past, particularly during a hail storm in 2010. The evidence established that all hail damaged windows had been replaced. Although it was common cause between the applicants and the Strata Company that all remaining 'balcony' windows in lots were due for replacement and that they would be replaced one way or another, there was no evidence that they were in need of immediate or imminent replacement. The Tribunal found on the evidence that it was not necessary to repair, renew or replace the remaining 'balcony' windows in either Lot 39 or Lot 76 on the evidence before the Tribunal.
In these circumstances, the Tribunal considered that the strata company had not failed to perform the duty imposed by s 35(1)(c) of the Strata Titles Act by delaying the replacement of the 'balcony' windows in lots until it was finally resolved amongst the lot proprietors whether balconies would be constructed pursuant to either a resolution without dissent or unanimous resolution at an annual general meeting or, alternatively, a deemed resolution without dissent or unanimous resolution pursuant to s 51 of the Strata Titles Act.
The Tribunal also concluded that the strata company was under no obligation to replace the 'balcony' windows in Lot 39 or Lot 76 pursuant to a resolution made at the 2012 Annual General Meeting of the strata company or pursuant to a contract between the strata company and its builder entered into in 2013.
In the case of one western elevation foyer window on level 21 of the Tower, the Tribunal found that it was leaking and the Tribunal concluded that that window was in need of immediate replacement.
The strata company intended to advance a proposal to the lot proprietors in general meeting in 2016, following the final hearing, to replace all foyer windows on all levels with new windows or possibly doors which would lead onto ledges to be constructed. The strata company intended to delay the replacement of all foyer windows, including the leaking western elevation foyer window on level 21 of the Tower, until the issue of the proposed construction of ledges for each level of the Tower was considered by the lot proprietors There was no evidence that the proposed motion would receive any particular support at that general meeting. Given that the relevant window had leaked for a considerable period of time, caused damage to the wall, paint and carpet on level 21 internally and that the level 21 foyer was awaiting refurbishment, once watertight, the strata company in deferring the replacement of that window had failed in its duty to renew and replace the window frames and glazing, it being in need of immediate replacement.
The Tribunal concluded that the strata company's delay in replacing that window was not justified and was not reasonable as the proposed construction of ledges was a vast project that would take considerable time to fund and complete even if approved in general meeting. Accordingly, the Tribunal made orders pursuant to s 83(1) of the Strata Titles Act in respect of the replacement of the western elevation window to the level 21 foyer of the Tower.
As to the alleged failure of the strata company to replace all other windows in Lot 39, the Tribunal concluded that the proprietors of Lot 39 had failed or refused to comply with legitimate and reasonable directions and instructions given to them by the strata company to facilitate the replacement of all other windows to Lot 39. The Tribunal found that the airconditioning unit affixed to the common property wall servicing Lot 39 was not approved in any way by the strata company and the latter was entitled to direct that the proprietors of Lot 39 remove the same.
The Tribunal found that the strata company had put in place a process and raised and intended to continue to raise sufficient funds to attend to repairs and maintenance and the renewal and replacement of common property generally into the future. To the date of the hearing the Tribunal found that the strata company had managed the replacement, repair and/or maintenance of the roof cover, water tank, foundations, fire safety and warning equipment, some substantial concrete damage to window openings, and there was no evidence that the strata company had failed to exercise its obligations as imposed by s 35(1)(c) of the Strata Titles Act, save in the case of the western elevation of the foyer window to level 21.
The Tribunal found that the strata company had not failed to repair the plant room or level 21 foyer as alleged, as the delay in repairing the plant room was caused by the refusal of certain lot proprietors including the proprietor of Lot 76, from removing airconditioning units servicing their lots which impeded access to and caused water ingress to the plant room and, from the plant room, to the level 21 foyer.
Save for the order concerning level 21 western elevation foyer window, the Tribunal dismissed all other claims pursuant to s 81 of the Strata Titles Act.

Category: B

Representation:

CC 611 of 2014

Counsel:

Applicant: Mr Mistilis
Respondent: Mr Atkinson

Solicitors:

Applicant: Hotchkin Hanly
Respondent: Atkinson Legal

CC 612 of 2014

Counsel:

Applicants: Self Represented
Respondent: Mr Atkinson

Solicitors:

Applicants: N/A
Respondent: Atkinson Legal

CC 156 of 2015

Counsel:

Applicants: Mr Mistilis
Respondent: Mr Atkinson

Solicitors:

Applicants: Hotchkin Hanly
Respondent: Atkinson Legal

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

Brosolo and Council of Owners of 25 St Leonards Strata Plan 352 [2008] WASAT 285
Clark and The Owners of Waterfront Mews Strata Plan 14082 [2011] WASAT 110
Drexel London (a firm) v Gove (Blackman) [2009] WASCA 181
Fok and Owner of Chartwell Strata Plan 2604 [2016] WASAT 94
Gawor and The Owners of Dawesville Caravan Park Old Coast Road Mandurah, Strata Plan No 14644 [2009] WASAT 170
Jordan v Van Schoubroeck [2005] WASCA 120
Laffin and Renouf [2016] WASAT 48
Maludra Pty Ltd & Ors and Owners of Windsor Towers & Ors [2012] WASAT 160
Owners of Metro Inn Apartments Strata Plan 11880 v Transmetro Corporation Ltd (No 1) [2000] WASC 293
Owners of Roslyn Strata Plan 35960 v Maguire [2013] WADC 64
Re Duomatic Ltd [1969] 2 Ch 365
Reitmajer and Council of Owners of 14/16 Molloy Street Bunbury [2009] WASAT 63
Saloman v Saloman & Co Ltd [1897] AC 22
Sisto and The Owners of Glenway Gardens Apartments [2005] WASAT 282
Stann and The Owners of Beau Vista Strata Plan 12008 [2012] WASAT 227
The Owners of Mandurah Terrace Apartments Strata Plan 17133 and Russell [2009] WASAT 1
Wong v Reid [2016] WASC 59

REASONS FOR DECISION OF THE TRIBUNAL:

CC 611 of 2014

The application

On 6 May 2014, Maludra Pty Ltd (Maludra), as the proprietor of Lot 76, lodged an application in the Tribunal against the Owners of Windsor Towers Strata Plan 80 (Strata Company) (CC 611). The application was made pursuant to s 83(1) of the Strata Titles Act 1985 (WA). The CC 611 application originally sought the following orders set out verbatim:
The Strata Company to reissue work orders and to ensure insurance proceeds previously paid from CHU Insurance for March 2010 storm damage, are applied as required in Section 59 of the Strata Act to complete outstanding storm damage repairs to common property and windows of Unit 20/21 North and Foyer level 21 of Strata Plan 80 Windsor Towers 9 Parker Street South Perth.
Request an order for a commencement date to replace all windows in Unit 20/21 North, including windows deleted from the window replacement contract to allow for balconies, balconies have not been approved and were voted down on multiple motions put to the 2013 AGM. The only exception is the window that has been replaced by Shelly Glass on behalf of CHU insurance following the March 2010 Storm. All windows to be 'awning design' as advised originally and subsequently by professionals as the best option for Windsor Towers.
The Strata Company to be directed to properly repair/replace the windows, rotting/mouldy carpet, damaged wall structure and wall leaks to the common property foyer on level 21 and any other affected levels of the strata.
Request a Change of ByLaw under s 42(b) of the Strata Titles Act The ByLaw to grant, individual owners Exclusive Use of the Double Glaze Windows and 'Controllaview' blinds where installed in units between the doubleglazing. A ByLaw, which allows levies in respect of the window replacement to be assessed other than by Unit Entitlement of each lot to reflect the cost of window installed. All costs for Double Glazed Windows and 'Controllaview' blind materials, installation, future repairs and maintenance to be the responsibility of the individual owners and not by a Unit Entitlement. The installation of double glazed windows is considered an upgrade from the singleglazed windows of the common property and was not passed at a General Meeting of the Strata Company.
The grounds for the orders sought comprised three pages of narrative covering a wide range of matters, focusing on the need to replace damaged and leaking windows within Lot 76, the cost of the same and complaints concerning how the Strata Company had managed repairs to various windows. The reference to Unit 20/21 North is in fact a reference to Lot 76 for the reasons explained below.
At the second directions hearing on 2 July 2014 in CC 611, the Tribunal recorded, in an order that, Maludra and the Strata Company had agreed that the Strata Company would take steps to arrange for the replacement of windows under the 'window replacement program' (13 windows), under any insurance claims (one window) and wherever an examination for concrete cancer around the window was required. It was agreed that the two remaining windows within Lot 76 would not be replaced immediately in case they were to be replaced by doors that would open onto a proposed balcony. These two windows in Lot 76 shall be referred to as the 'balcony windows'. To the extent of the balcony windows in Lot 76, that issue was narrowed.
As a result of a series of directions hearings during the course of the proceedings, the orders sought and grounds were refined and recorded in the order made on 27 March 2015 in CC 611. Order 1 of the orders dated 27 March 2015 record that Maludra alleged that the Strata Company had failed to properly or adequately maintain, repair, renew and replace the common property and sought a final order that the Strata Company:
a)paint the external foyer on level 21 of the building;
b)replace all leaking windows to the foyer on level 21 with new windows;
c)paint the whole of level 21 internally including all four lots situated on level 21;
d)replace the remaining windows to Lot 76 noted as 'proposed balcony access openings' with new windows; and
e)replace all rotting and mouldy carpet caused by the leaks to the foyer on level 21 and patch walls damaged by water ingress.
These orders and the grounds (the allegation of a failure to properly or adequately maintain, repair, renew and replace the common property) replaced the orders sought and the grounds therefore in the application. A further final order was sought and identified in the order made on 27 March 2015 but was later withdrawn (see: order 2 made 22 June 2015).
Proposed order (a) was intended to refer to the inner foyer walls as explained at the final hearing. As to proposed order (c) above, the individual lots situated on level 21 are Lots 76, 77, 78 and 79. The proprietors of Lots 77, 78 and 79 are not party to these proceedings. The Tribunal cannot therefore make an order in respect of work within the individual lot of a nonparty or determine issues concerning nonparties and their individual lots.
Pursuant to an order made on 27 March 2015 in CC 611, Maludra filed a statement of relevant facts, issues and contentions on 21 April 2015 but it contained a reference to orders sought that differed from those identified in the orders dated 27 March 2015. At the directions hearing on 22 June 2015, the Tribunal's orders record that the only orders sought in CC 611 were those referred to in order 1 of the Tribunal orders made 27 March 2015 in CC 611.

Documents filed

On 6 May 2014, Maludra filed the following documents:
•emails between the Council of the Strata Company (Council) and Maludra (from 9 April 2014 to 15 April 2014);
•emails between the Council and Maludra (from 2 March 2014 to 8 April 2014);
•photograph of mouldy window in unit 21 North dated 4 September 2013;
•correspondence between R Cosentino and Strata Company (from 17 December 2012 to 14 March 2013);
•correspondence from Bradbury Seewell, Loss Adjustors CHU and Strata Company (from 5 November 2010 to 25 January 2012);
•correspondence Maludra to Strata Company (from 25 February 2011 to 4 September 2012);
•leaking common property foyer level 21, photographs and correspondence (from 12 June 2008 to 17 September 2013); and
•window presentation 'Annual General Meeting' (AGM) 2012; summary of presentation forwarded to 'owners' with minutes of 2012 AGM and Maludra dispute minutes tabled at 'AGM' 2013.
(Exhibit CC 611, 6 May 2014 Applicant's Bundle (AB))
On 21 April 2015, Maludra filed a further bundle of documents described as follows:
•minutes of 4 December 2014;
•photos of water damage 20 north foyer dated 23 January 2015;
•replace remaining windows 20/21N dated 14 August 2015;
•quotes to make good paint and blinds to unit 21N dated 15 January 2015;
•photos of poor carpet repairs to foyer level 21 and wall damage dated 21 February 2015;
•painting all foyer level 21 dated 10 October 2010;
•photos of water ingress foyer level 21 dated 12 June 2008;
•general meetings for 2009, 2011 and 2013;
•Council of Owners meeting 7 September 2011; and
•Council of Owners Meeting 5 January 2012.
(Exhibit CC 611, 21 April 2015 AB)
On 11 December 2015, Maludra filed 'supplementary' documents being six photographs of the foyer windows on level 21 taken between 18 June 2014 and 7 December 2015 and a notice of cancellation of an Extraordinary General Meeting (EGM) dated 15 October 2014 (Exhibit CC 611, 11 December 2015 AB).
On 30 June 2016, Maludra filed a further 22 coloured photographs said to be taken in April and May 2016 (Exhibit CC 611, 30 June 2016 AB).
Pursuant to a Tribunal order, the Strata Company filed a responsive statement of issues, facts and contentions on 9 December 2015 and two volumes of documents. Those documents comprised:
•title documents;
•AGM and EGM documents 2002 2015;
•various documents 1970 2010;
•various documents 2011;
•various documents 2012 ;
•various documents 2013 ;
•various documents 2014 ; and
•various documents 2015
totalling 865 pages. With Exhibit 2 (see below), the Strata Company's documents total 876 pages. These documents will be referred to throughout as Exhibit RB.
At the final hearing, Maludra produced a further bundle of paginated documents in CC 611 as follows:
•minutes of the AGM dated 15 October 2012;
•PowerPoint Presentation dated 15 October 2012 by Roanoke Holdings Pty Ltd trading as Trademark Constructions (Trademark);
•Master Builders Window Replacement Contract dated 25 February 2013;
•Trademark quote for Maludra dated 28 January 2015;
•Luxaflex quote for Maludra dated 19 January 2015; and
•minutes of AGM dated 4 December 2013.
(Exhibit CC 611, 24 August 2016 AB)

The issues

1)Whether:
a)the Strata Company is obliged to replace the balcony windows and/or the foyer windows on level 21 with new windows; and
b)the Strata Company is obliged to paint Lot 76 and/or the level 21 foyer and replace damaged carpet to the level 21 foyer;
pursuant to:
i)the resolutions made at the 2012 and 2013 AGMs;
ii)a contract to repair the concrete to window openings and replace windows to lots; or

iii)s 35(1)(c) of the Strata Titles Act 1985 (WA) (ST Act).

2)Whether in all of the circumstances the Tribunal should direct the Strata Company to undertake the work pursuant to s 83(1) of the ST Act.

CC 612 of 2014

On 6 May 2014 Mr D Strachan, Mr Brendan McCreed and Maludra as proprietors of Lot 39 and Maludra as proprietor of Lot 76 lodged an application with the Tribunal against the Strata Company (CC 612). Mrs N Strachan has been joined as an applicant, as she is a proprietor of Lot 39. The orders sought are as follows:
The Strata Company to immediately undertake all repairs that give rise to health and safety issues.
To prioritise all works previously identified, budgeted and approved at Annual General Meetings and to ensure the roof replacement is completed, including safety fittings in accordance with the quotes owners voted for at the 2011 General Meeting (AGM).
The Strata Company to indemnify the owners of Lot 39 and 76 against all demands, actions, claims, costs, suits, losses of any nature that the strata company may suffer or incur in respect of damage to property, injury or death that is caused wholly or in part by any wilful or negligent act of (sic) omission or by any breach in their duty of care by the Council of Owners on behalf of the owners of the Strata Company, in respect to failure to properly maintain and where necessary, repair, renew and replace common property in a timely manner.
The Strata Company is to undertake a LifeCycle report from the qualified professionals as approved by owners at the 2011 AGM. The report to prioritise all essential work that is required to remedy any defects which give rise to health and safety issues and are causing on going damage to common property. The report to also broadly set out the process required to bring the building to a standard, which would allow its life to be extended for ~~another 40 years~~ a reasonable period.
As with CC 611, the grounds comprise a narrative of allegations, not all of which are directly connected to the orders sought. As with CC 611, CC 612 was the subject of a number of directions hearings. By 15 June 2016, the issues in respect of which orders were sought in CC 612 and the grounds for the same were amended and recorded in the Tribunal's orders of that date as follows:
…
(i)have monies been raised for specific purposes for the reserve fund and then been used for other purposes and, if so, has that use been validly ratified at a general meeting?
(ii)has the strata company failed to properly repair, maintain, renew, replace, control and manage the common property, in particular:
(a)the downpipes;
(b)the lack of a direct connection to an external service provider or FESA for the building's fire alarm systems;
(c)the lack of the fire compliance report which includes specific mention of a satisfactory hydrostatic test having been completed within the last five years;
(d)the plant room; and
(e)foyer windows on all levels save for levels 20 and 21.
The CC 612 applicants sought orders directing the Strata Company to undertake the work referred to. No specific order was sought concerning the use of funds.
In the course of the directions hearings, the issue of anchor points to the roof of the building was raised but was withdrawn (see order 10 September 2015).
By agreement at the final hearing on 24 August 2016, the parties amended issue (ii)(e) above, to exclude the reference to level 21. The parties recognised that the issues of proper maintenance repair, removal and replacement of common property concerning the foyer windows on level 21, was before the Tribunal in CC 611.
Because CC 612 concerns the issue of the conduct of the Strata Company in replacing windows to the foyers on all levels of the building, CC 612 was heard with CC 611.

Documents

On 21 April 2015, the CC 612 applicants filed the following documents, not all of which are relevant to the issues identified in the orders made on 15 June 2016:
•roof anchor points dated 18 September 2012;
•SRE: Height Safety System inspection dated 27 August 2012;
•AGM minutes dated 7 September 2010 and 6 December 2011;
•Trademark quote and AGM minutes dated 7 November 2011;
•Council minutes dated 18 September 2012;
•safety concerns not taken seriously by Council dated 27 March 2014;
•safety system upgrade dated 18 September 2014;
•Council minutes anchor points, dated 21 September 2014;
•photos of rusting downpipes dated 29 November 2013 to 24 February 2015;
•minutes of AGM dated 4 December 2013;
•building left without ability to fight a fire for 12 months dated 28 August 2002;
•Tuckwell Fire Consultants (Tuckwell) and Wood & Grieve Engineers reports dated 19 October 2007 and 26 February 2008;
•Tuckwell updated report dated 18 October 2011;
•AGM approved fire brigade upgrade in budget dated 4 October 2013;
•unable to complete hydrostatic test dated 6 February 2013;
•Wormald's recommendation that system should be connected to fire brigade dated 18 April 2013;
•email to Strata Company outlining fire system concerns dated 26 February 2013;
•Council meeting in relation to Fire and Emergency Services Authority of Western Australia (FESA) connection dated 18 June 2013;
•photographs of isolated fire system dated 20 August 2014;
•fire system panel with warning lights again showing faults between March and April dated 22 March 2015;
•plant room repairs dated 2009, 2011 and 2013;
•sewerage replacement not completed dated 6 December 2011;
•levies approved and raised for window replacement in AGM from 2002 to 2013;
•roof anchor points and downpipes (included in safety order) dated 18 September 2012; and
•backlog of maintenance work some already approved and budged for in general meetings.
(Exhibit CC 612, 21 April 2015 AB)
On 6 May 2015, the CC 612 applicants filed the following documents, not all of which are relevant to the issues identified in the orders made on 15 June 2016:
•SRE Height Safety System inspection dated 27 August 2012;
•correspondence from Strata Manager regarding further inspections dated 7 February 2014;
•correspondence from Strachan to Strata Company and response from Council from 11 March 2014 to 27 March 2014;
•correspondence between Strachan and Council in relation to fire pump replacement from 20 March 2008 to 15 May 2008;
•Wood & Grieve correspondence in relation to fire pump replacement from 26 February 2008 to 22 September 2008; and
•Tuckwell Report for fire pump replacement dated 19 October 2007.
(Exhibit CC 612, 6 May 2015 AB)
The documents concerning the roof anchor points are not relevant as that issue was withdrawn from CC 612.
On 24 July 2015 and again before the issues and orders sought were refined, the CC 612 applicants filed a statement of issues facts and contentions and the following documents:
•AGM minutes dated 7 September 2010;
•AGM minutes dated 6 December 2011;
•Trademark quote dated 7 November 2011;
•AGM minutes of general meeting dated 30 September 2009;
•AGM minutes of general meeting dated 15 October 2012;
•Council minutes dated 7 November 2011;
•Council minutes dated 5 January 2012;
•power point presentation dated 15 October 2012;
•AGM minutes dated 4 December 2013;
•letter from Bradbury Sewell dated 25 January 2012; and
•various photos taken in 2013, 2014 and 2015.
(Exhibit CC 612, 24 July 2015 AB)
The CC 612 applicants filed the following documents on 14 December 2015:
•previous certificate of title concerning Lot 39;
•copy letter from Mr Laird dated 9 February 2010;
•letter Atkinson Legal dated 13 August 2010;
•letter from CHU insurance to the Strata Company dated 28 October 2010;
•letter Allan Davies & Trevor Chudleigh dated 14 April 2012;
•letter Prestige Strata Management concerning $1,000,000 loan;
•medium works contract between the Strata Company and Trademark; and
•AS-1851 of 2012 concerning routine service of fire protection system and equipment.
(Exhibit CC 612, 14 December 2015 AB)
On 30 June 2016, the CC applicants filed 39 colour photographs said to be taken in April and May 2016 (Exhibit CC 612, 30 June 2016 AB).
As stated above, the Strata Company filed Exhibit RB in respect of all proceedings. On 9 December 2015, the Strata Company filed its responsive statement if issues, facts and contentions in CC 612.
On 24 August 2016, the CC 612 applicants filed a further bundle of documents for the final hearing (CC612, 24 August 2016 AB) which was not paginated or indexed.

The issues

1)Whether the Strata Company failed to properly repair, maintain, renew, replace, control and manage the common property pursuant to s 35(1)(c) of the ST Act, in particular:
a)the downpipes;
b)the lack of a direct connection to an external service provider or FESA for the building's fire alarm systems;
c)failing to obtain a fire compliance report which includes specific mention of a satisfactory hydrostatic test having been completed within the last five years;
d)the plant room; and
e)foyer windows on all levels save level 21 and must now replace the same with new windows.

2.Whether in all of the circumstances the Tribunal should direct the Strata Company to undertake the work sought by the CC 612 applicants pursuant to s 83(1) of the ST Act.
3.Whether any money had been raised for specific purposes for the reserve fund and then used for other purposes and, if so, has that been validly ratified at a general meeting?

CC 156 of 2015

Application

On 2 February 2015, Mr D Strachan, Mr McCreed and Maludra, as the proprietors of Lot 39, made application to the Tribunal for orders against the Strata Company (CC 156). Mrs N Strachan has been joined as an applicant, as she is a proprietor of Lot 39. The original orders sought by the CC 156 applicants are as follows:
Request an order for a realistic commencement date to replace all [t]he windows in 10 West, including windows deleted from the window replacement contract to allow for balconies.
As to the grounds, the following appears in the application:
Our window levies are paid in full for all windows to be replaced despite numerous requests in writing to the Strata Council and the Strata Manager for a commencement date to replace all windows they have failed to instruct the builder to proceed or to provide us with the commencement date.
We contacted the builder, he advised that he cannot proceed with 10W until he is instructed by the Strata Council to proceed.
The builder has also contacted the Strata Council for approval to proceed but to no avail.
As with CC 611 and CC 612, CC 156 was the subject of a number of directions hearings. Ultimately, the issues to be determined by the Tribunal were narrowed and identified in orders dated 10 September 2015 in CC 156 as follows:
(a)Replacement of windows to Unit 10 West:
(i)The applicants assert that the respondent has failed to replace with new windows, all windows in Unit 10 West including the windows deleted from the window replacement programme/contract intended to be overtaken by the creation of balconies.
(ii)The respondents contend that it has resolved or directed that the replacement of windows to Unit 10 West is deferred until a resolution at general meeting to construct balconies and that the applicants challenge that resolution or direction.
(b)In undertaking replacement of windows the applicant is not required to remove an air conditioning unit to Unit 10 West positioned on a ledge to the outer side of Unit 10 West because:
(i)it is in working order;
(ii)it is not prohibited;
(iii)it is not necessary to move the air conditioner to replace the window[.]
The reference to 10W or 10 West is a reference to Lot 39 for the reasons explained below. The issue in (a) insofar as the Strata Company replacing one balcony window in Lot 39, is the same as the issue in CC 611, which is why this matter was heard with CC 611. In this matter, however, unlike CC 611, none of the windows to Lot 39 had been replaced as at the date of the final hearing.
The CC 156 applicants assert that there is no justification for the Strata Company's failure to replace the remaining windows in Lot 39. The Strata Company asserts in response in summary that:
a)the CC 156 applicants have not agreed to the timeframes required by the Strata Company's builder, Trademark, to undertake the work;
b)the CC 156 applicants have refused the Strata Company's builder, Trademark, access to Lot 39 to undertake the window replacement and concrete repair work unless the Strata Company also agrees to replace the balcony window in Lot 39;
c)the CC 156 applicants have refused to remove an airconditioning unit fixed to the external wall of the building adjacent to Lot 39 which has not been approved by the Strata Company; has not been the subject of an application for approval, a licence or an exclusive use bylaw; is an obstruction to the common property and an obstruction to the Strata Company's endeavours to replace certain windows and remediate concrete damage to window openings in Lot 39.
The CC 156 applicants say that it is not necessary to remove the airconditioning unit and that it is in working order and not prohibited. Implicitly, they contend that the installation of the air-conditioning unit servicing Lot 39 was approved by the Strata Company.

Documents

The CC 156 applicants filed the following described documents on 23 April 2015:
•Strata Titles Act 35(1), (a), (b);
•TradeMark Scope of works (A1)(a) dated 23 October 2013;
•AGM Minutes dated 4 October 2013;
•Strata Titles Act 7(2);
•Atkinson Legal (undated around June 2010) (A2) dated 2013;
•Garmony Valuation and LMWHegney Valuation (A3), (A4) dated 16 June 2011 to 5 September 2014;
•Resale Value 10W dated 17 April 2015;
•Strata Titles Act 42(b);
•Strata Titles Act 7(2);
•Strata Titles Act 42(8);
•By-Law Airconditioners (A5) dated 24 October 2003;
•Strata Manager re Airconditioners (A5 (a) (b), (c) dated 7 August 2014;
•Contents Insurance;
•Airconditioner Report and Photograph (A6 (a)) dated 20 April 2015;
•Airconditioner and window replacement;
•Photographs (A7 (a) to (j) dated 21 March 2015; and
•Conflicting Information (A8 (A) to (l) dated 20 March 2015 to 13 February 2015.
(Exhibit CC 156, 23 April 2015 AB)
The CC 156 applicants also filed the same documents on 24 August 2016 but this bundle was paginated.
On 11 December 2015 the CC 156 applicants filed the following:
•letter dated 21 September 2015 from Prestige Strata Management;
•Certificate of Title for Lot 39;
•Transfer of Land concerning Lot 39; and
•replaced Certificate of Title for Lot 39.
(Exhibit CC 156, 11 December 2015 AB)
The provision of documents by the applicants in the three proceedings has resulted in multiple copies of documents some with annotations and some without being before the Tribunal. Where the various applicants' documents are also contained in Exhibit RB, the Tribunal will refer to the version in Exhibit RB, for ease of reference.

Issues

1)Whether:
a)the Strata Company is obliged to replace the balcony windows to Lot 39 with new windows; and
b)the Strata Company is obliged to replace all other windows in Lot 39;
pursuant to:
i)the resolutions made at the 2012 and 2013 AGMs;
ii)the contract to repair concrete to window openings and replace windows to lots; and
iii)s 35(1)(c) of the ST Act.

2)Whether the airconditioning unit servicing Lot 39 is approved.
3)Whether in all of the circumstances the Tribunal should direct the Strata Company to undertake the work sought by Maludra pursuant to s 83(1) of the ST Act.

Further evidence generally in CC 611, CC 612 and CC 156

At the final hearing, the parties agreed to the following:
1)The photographs attached to the undated report by Mr Bryant attached to his witness statement filed by the Strata Company in CC 612 of 2014 and CC 156 of 2015 on 19 July 2016 be received as agreed Exhibit 1. Mr Bryant's comments and the substance of his report are not accepted as evidence by agreement. This is largely on account of the late and unauthorised filing of the report.
2)The Strata Company's photographs filed in the Tribunal on 23 June 2016 and marked as pages 866 876 are agreed Exhibit 2 and form part of the Strata Company's two volumes of documents filed in each of the proceedings and referred to as Exhibit RB.
It was also agreed that a document that had been before the Tribunal in CC 917 of 2015 (referred to as the 'mud-map' of the plant room) was to be before the Tribunal in these proceedings as an agreed exhibit (Agreed Exhibit).
It was an agreed fact in all three proceedings that the Strata Company had obtained a report as to the state of repair of airconditioning units, and the affixation of the same to the external walls of the building.
The following individuals gave oral evidence in the Tribunal in relation to all of the proceedings:
•Mrs Strachan for the applicants in all three proceedings;
•Mr Strachan for the applicants in all three proceedings;
•Mrs Best for the Strata Company in all three proceedings; and
•Mr Chudleigh for the Strata Company in all three proceedings.
The parties agreed at the final hearing that the evidence in each of the proceedings shall also constitute the evidence in each other matter (T:9; 24.08.16). Therefore, the documentary evidence filed in each proceeding and the oral evidence at the final hearing comprised the evidence in all three proceedings.

Background facts

The Owners of Windsor Towers Strata Plan 80 and the building

The Owners of Windsor Towers Strata Plan 80 is a strata scheme comprised in part of a 21 level residential apartment building (WT), constructed in the late 1960's, comprising 79 individual lots and common property. WT and the strata scheme is located on a parcel of land on the South Perth escarpment overlooking the Swan River. The parcel of land within the strata scheme is located at the street address of 9 Parker Street, South Perth.
In addition to 21 levels of residential accommodation, WT is constructed with an additional plant room above level 21. The plant room comprises one full floor and a mezzanine floor. The plant room is situated above the central column that passes through each level and which column accommodates services such as the lifts, lift wells, services and foyers for the individual lots on each level. In plan view, WT is built in the shape of a cross, with the service column passing through all 21 levels and up to and comprising the plant room at the very top. The service column, in plan view, is largely square. In short, the plant room sits within the footprint of and is an extension of the service column above level 21. Individual lots extend off each side of the service column for 21 levels, facing north, east, south or west. There are four lots on levels 1 and 3 19 and three lots plus the main entrance lobby on level 2. Levels 20 and 21 accommodate four penthouse lots - Lots 76, 77, 78 and 79 and are each comprised of two part lots. One part lot, in each case, is situated on level 20 and the other part lot of each is situated on level 21.

The lots on each elevation are sometimes referred to as being on a 'wing' of WT that is, for example, a lot on the north wing or the west wing of WT.
Lot 76 is a penthouse lot on level 21 of the north wing of WT, faces north and has what appears to be uninterrupted views of the Swan River and the City of Perth. Lot 76 was known originally as Lot 20/21 North as can be seen from the strata plan filed with each application in each proceeding and the later strata plan filed by the respondent (Exhibit RB pages 1 29). There is no internal plan of Lot 76 contained in any of the papers filed in any of the Exhibits in any proceedings to assist the Tribunal to orientate itself within Lot 76. Exhibit RB page 624 is a generic plan for a level in WT. It is a guide only. The Tribunal therefore has no evidence of how many windows are within Lot 76. On each level of Lot 76 there is a northern window or set of windows (Exhibit RB page 624). These are the balcony windows that will be made redundant if the balcony project (see below) proceeds.
Lot 39 is positioned on level 10 of the west wing of WT. As can be seen from the strata plan filed with each application in each proceeding and the later strata plan filed by the respondent (Exhibit RB pages 1 29), Lot 39 was originally referred to as Lot 10 West. There is no internal plan of Lot 39 contained in any of the papers filed in any of the proceedings so as to orientate the Tribunal in Lot 39. The generic plan (Exhibit RB page 624) for a level in WT is the only plan provided to the Tribunal and is only a guide, as stated. Again there is no evidence about how many windows are within Lot 39. One window or panel of windows faces west. This is the balcony window that will be made redundant if the balcony project (see below) proceeds.
As can be seen from Exhibit RB page 624 each level has four foyer windows. These windows face north, east, south and west. If the Strata Company were to proceed with the ledges project (refer below) at least two of these foyer windows on each level would be replaced with doors leading onto ledges to accommodate airconditioning units for contiguous lots and the remaining two foyer windows would be replaced. Alternatively, all four foyer windows would be replaced with doors leading onto ledges.

The proprietor of Lot 76 (CC 611 and CC 612)

The proprietor of Lot 76 is Maludra. Mrs L Strachan is the sole director and shareholder of Maludra (Exhibit RB pages 70 and 71). It was not disputed that Maludra has been the registered proprietor of Lot 76 for many years. Mrs Strachan (or Maludra represented by her), was an elected member of the Council between 25 October 2005 to 8 August 2007 and 21 October 2008 to 6 December 2011 (Exhibit RB pages 89 180).

The proprietors of Lot 39 (CC 612 and CC 156)

The proprietors of Lot 39 are Maludra, Mr D and Mrs N Strachan and Mr Brendan McCreed. The CC 612 and CC 156 applicants have been the proprietors of Lot 39 for many years. Mr Strachan was an elected member of the Council between 21 October 2008 and 6 December 2011 (Exhibit RB pages 109 180).

The Owners of Windsor Towers Strata Plan 80 and Maludra Pty Ltd and Ors CC 917 of 2015 (CC 917 of 2015)

The proceeding and impact of the conduct of the proprietors of Lots 76, 77, 78 and 79, complained of by the Strata Company in CC 917 of 2015 has direct bearing on the matters raised by Maludra in CC 611 (as the sole proprietor of Lot 76) and the CC 612 applicants (the proprietors of Lot 39 including Maludra). Further, and indirectly it explains why the maintenance to the plant room of WT was required before any work could be undertaken to the level 21 foyer and the predominate cause of water damage to the level 21 foyer that is unrelated to the level 21 foyer windows (CC 611). It also concerns the reason why remedial and repair work to the plant room was delayed (CC 612).
The statement filed in CC 611 on 21 April 2015 makes reference to water leaks to the level 21 foyer from the plant room above level 21 and refers to airconditioning units servicing Lots 76, 77, 78 and 79 accommodated in the plant room. The ownership, responsibility for repair and maintenance and the right to accommodate air conditioners servicing Lots 76, 77, 78 and 79 positioned in the plant room; damage to the plant room caused by installation and operation of the same; obstruction of the common property by such air conditioners preventing the Strata Company's attempts to maintain and repair the plant room and the consequential impairment of the Strata Company's ability to prevent water ingress into the level 21 foyer, were the subject of proceedings in CC 917 of 2015.
The Strata Company commenced proceedings in CC 917 of 2015 for orders to compel the proprietors of Lots 76, 77, 78 and 79 to remove unauthorised airconditioning units and ducted plumbing and cabling related thereto, that had been installed in the plant room above the level 21 foyer by the proprietors of Lots 76, 77, 78 and 79 as at the date of the proceedings; their predecessors in title or third parties on instructions of a current or former proprietor. Although the proceeding was resolved by consent orders in respect of Maludra and the proprietor of Lot 78, the proceedings were contested by the proprietors of Lots 77 and 79. The Tribunal found that the airconditioning units were not part of the construction of WT and were not common property as had been asserted by the four lot proprietors concerned. The Tribunal found that the plant room was a source of water ingress by reason of the fact that the window glazing to the plant room, over a period of time, was removed by unknown individuals to allow for sufficient ventilation of the respective airconditioning units. Consequently, rainwater entered the plant room through the window openings and seeped into the unsealed floor or the floor and wall joints thereof and into the ceiling and down the walls of the level 21 foyer.
In addition, the condensate resulting from operation of the airconditioning units in the plant room was not properly drained from time to time and seeped onto the plant room floor or floor and wall joints and into the ceiling and down the walls of the foyer on level 21. The plant room floor and the joints of the walls and floor thereto, were not sealed as the plant room was intended, as constructed, to be watertight. Water penetrated the level 21 foyer ceiling and ceiling and wall joints causing water damage to the ceiling, walls and carpet of the level 21 foyer.
The Strata Company directed the proprietors of Lots 76, 77, 78 and 79 to remove the air conditioners, associated ducted plumbing and cabling that serviced their lots from the plant room, so that the Strata Company's builder could carry out the necessary and budgeted work to render the plant room watertight before the Strata Company's builder could commence remediation of water ingress and consequential damage to the ceilings, walls and paint surface of the level 21 foyer. All four lot proprietors refused, failed or neglected to remove the airconditioning units until the respective final orders were made.
CC 917 of 2015 was heard prior to CC 611, CC 612 and CC 156 because of the impact that the airconditioning units and water ingress had on the foyer of level 21 and the plant room mediation work, which was to followon from the roof cover replacement that had been undertaken and was continuing.
On 16 August 2016, the Tribunal made the following order in respect of Maludra as a respondent in CC 917 of 2015:
By consent of the Applicant Strata Company and the First Respondent Lot Proprietor Maludra Pty Ltd:
1.Under s 83 (1) Strata Titles Act 1985 (WA) within 45 days after the Applicant Strata Company completes the works referred to allow the First Respondent's contractors to safely access the external wall of the plant room above Lot 76 to allow its air-conditioner to be relocated in accordance with the agreement of the parties to the external wall of the plant room, the First Respondent, at its own cost, shall permanently remove the existing air-conditioner installed in the common property plant room that services Lot 76 including associated piping, cabling and ducting and make good the common property as necessary.
2.Pursuant to s 83 (1) Strata Titles Act 1985 (WA) prior to the period when order 1 is operative:
(a)the First Respondent shall move its air-conditioning unit currently positioned in the common property plant room to a position as and when instructed to do so by the Applicant's Strata Company's contractor or builder for temporary operation of that air-conditioning unit.
(b)the Applicant Strata Company shall instruct its contractor or builder referred to in order 2 (a) above to minimize the time during which the First Respondent shall be without air-conditioning to Lot 76 so far as is reasonably practicable.
3.Under s 81 (10) Strata Titles Act 1985 (WA) these orders concerning the First Respondent shall not cease to have force or effect upon the expiration of the period of two years that next succeeds the making of this order.
4.Pursuant to s 114 Strata Titles Act 1985 (WA) the Tribunal hereby declares that orders 1, 2 and 3 made herein are tohave effect as a decision of the Applicant Strata Company and the Applicant Strata Company is hereby directed to comply with the provisions of s 114 (2) Strata Titles Act 1985 (WA).
A similar order was made on 9 August 2016 by consent against the proprietor of Lot 78. The Tribunal made orders on 14 November 2016 following a contested hearing in CC 917 of 2015 against the proprietors of Lots 77 and 79 as respondents, in the following terms:
1.Pursuant to s83(1) Strata Titles Act 1985 (WA), within 45 days of the making of these orders, each of the second and fourth respondents, at their own cost, are to remove the airconditioner, installed on common property, that services or that serviced their lot, including associated piping, cabling and ducting, and make good the common property.
2.Pursuant to s81(10) Stata Titles Act 1985 (WA), these orders shall not cease to have force or effect upon the expiration of the period of two years that next succeeds the making of the orders.

WT and the evidence concerning its state of repair generally

Leaking windows in WT was a problem in 1970 (Exhibit RB page 417) and the evidence before the Tribunal establishes that the impact of water ingress from the windows and frames was a longterm problem. The documentary evidence before the Tribunal (minutes of Council meetings and AGM minutes after 2002) indicates that the need to undertake some work to the windows in WT was regularly discussed and considered. However, the reality of the costs associated with the really meaningful work replacement of all windows and concrete damage repair appears to have been an impediment to progressing that work at an earlier time.
A hail storm event in March 2010 and the insurer's concerns about further insurance of WT brought the issue to a head within the Strata Company and amongst proprietors (Exhibit CC 612, 14 December 2016 AB letter from CHU dated 28 October 2010). However, it coincided with a need to undertake other very costly maintenance and renewal work that was overdue, such as replacement of componentry of the fire safety system, the roof cover replacement, structural work to stabilise the escarpment, water tank replacement and plant room remediation.
The hail storm resulted in a number of unspecified windows of WT being broken. Hail damaged windows had been temporarily replaced with what is described as 'noncompliant' glazing pending a resolution of the proprietors at a general meeting to approve work and to raise levies to replace the original windows in WT. The Strata Company engaged a number of professionals for advice.
In September 2011, Mr McEvoy of Rawlinsons (W.A.) Quantity Surveyors and Construction Cost Consultants (Rawlinsons) wrote to Mrs Strachan in her capacity as an office bearer of the Strata Company (Exhibit RB page 171). The extract from that letter below captures the state of WT and the expected future need for costly repairs, maintenance, renewal and replacement that required significant management:
Windsor Towers was constructed circa 1973 as the first high rise apartment building in Perth (i.e. exceeding 20 storeys). The design and construction is best described as basic and utilitarian. This point is made so as to recognize that the building would never become the equivalent of a 21^st century luxury apartment building.
During the time between construction and now, the limitations of the design have become apparent and this report broadly sets out the process required to bring the building to a standard, which will allow its life to be extended for another 40 years.
…The items of essential work may include the following:-
…
•Roof replacement   Architect
•External windows replacement   Archictect
•Review of fire safety provisions and              Fire Engineer and
domestic water reticulation  Hydraulic Engineer
•Review of lift performance and controls        Lift engineer
•Review of structural retaining walls              Structural Engineer
•Alterations to the central core plant room       Architect
Contrary to the statement in the Rawlinsons letter, the Tribunal finds that WT was constructed by 1969 not 1973. The prospect of balconies being added is referred to as a nonessential item, although as referred to below the need to remediate the concrete at the external wall and floor/ceiling joins of WT has become a structural issue.
In November 2011, MJB Payne Consultants Civil and Structural Engineers and Project Managers (MJB Payne) undertook some sample destructive testing of original windows in WT and an inspection of concrete around the window openings. A report was prepared by MJB Payne for the Strata Company (Exhibit RB pages 139 162). The whole report has not been provided to the Tribunal. However, the extracts provided serve to explain that the civil and structural engineers engaged by the Strata Company made the Strata Company aware of the degree of deterioration of the concrete walls of WT; the contribution thereto by the original windows and frames and the future extensive and costly work facing the lot proprietors via the Strata Company to remediate WT, structurally. The MJB Payne report, in summary, indicates that:
•Water ingress from the inspected original windows is a cause of corrosion of steel reinforcing bars in the concrete walls of WT, resulting in damage to the concrete walls.
•Water ingress from the inspected original windows has caused the plaster around the window sills to deteriorate.
•Where it occurs, water ingress from the inspected original windows occurs not merely between the concrete wall of the window opening and the window frame but between the glazing panel and the window frame.
•If the percentage of deteriorated windows and window openings found in the inspection is extrapolated to the whole building, then it is estimated that 79% are 'either leaking or have drummy sills (or both)'.
•The investigators heard numerous comments from occupants that the original windows were draughty, difficult to open and close; leaked and rattled.
•There may be some original windows and frames in WT that were serviceable [that is, 21%] but for the 'sake of uniformity these will also have to be replaced'.
•The original fixing method of the window frames was 'absolutely basic'.
•The original window frames appear 'to be a typical domestic window and it is most unlikely that they would ever have been certified for use in a 22-storey building where wind pressures (and hence the likelihood of water penetration) can be extremely high'.
•The glazing used in the original windows 'is 4mm float glass. This is relatively weak and in a similar building constructed today, nothing less than 6.38mm (1/4 inch) laminated (strengthened) glass would be used'.
In conclusion on the windows the MJB Payne report notes (Exhibit RB page 147):
If remedial work is not carried out, the corroding reinforcement under (and at each side of) the windows will continue to get worse until the pressure exerted by the growth of rust causes ever-larger gaps to form under the windows and eventually prevents the windows from opening. As the gaps get large there will also be more water permeating into the wall under each window and corrosion of the reinforcement will extend down towards floor level. There are already indications that corroded reinforcement is widespread in the wall below some windows (although this cannot be determined for certain without breaking away the surface of the concrete).
To prevent on-going structural deterioration of the building it is essential that the corrosion of the reinforcement be stopped. This will involve removal of the windows, a thorough treatment of corroded reinforcement and reinstatement of the concrete surface to prevent further ingress of dampness.
The estimated cost for the replacement of all windows and frames (including all those within all lots and foyers but excluding the plant room windows); the corroded reinforcement repairs for the whole building; the reinstatement of tiles (to window sills and walls, largely in wet areas); the patching of walls; the 'repainting etc' and builder's margin was $6.56 million plus GST on the basis of double glazed windows and $5.68 million plus GST for the 'cheapest price for the minimum standard windows'.
The MJB Payne report referred to above, demonstrates the consequences of water ingress between the glazing and the window frames and the concrete walls of the window openings and the window frames, over the life of WT to 2011. It also demonstrates the impact that future water ingress will have on the structural integrity of the walls of WT if leaks are not arrested.
As explained by Shelley Glass, the windows could not be replaced with the same glazing. The Shelley Glass document (Exhibit RB page 167) states:
The current Australian Standard AS 1288-2006, is an update of the previous Standard[s] AS 1288-1994 and 1989.
With the introduction of this Standard and subsequent amendments in 1997, 2000 & 2006, glass in buildings [is] required to meet more stringent guidelines than previously.
…
The Standard and Building Code of Australia in general are not retrospective. Therefore, there is no specific legislative requirement to remove and upgrade existing glass in buildings. The exception is where the glass requires replacement due to breakage or renovations. Then the replaced glass must comply with …AS 1288-2006.
In addition, the subsequent letter by Dr Anthea Airey of Airey Taylor, Engineers and Scientists, to the Strata Company's builder dated 7 May 2013 (Exhibit RB pages 621 - 624) states, in the context of the concrete repair work to the window openings:
… the window sills have in the past [that is prior to 7 May 213] been subject to saturation and most encapsulate corroding reinforcement.
We have investigated and found that the reinforcement is not constructed as per the engineering drawings. In particular, there is a lack of extension of the horizontal bar into the wall leaving the building vulnerable to seismic shock. As such, we intend to address this structural issue at the time of the balcony construction, from the external face of the building.
The purpose of the specification supplied 16/4/2013 is not to reinstate structural efficacy but to clean rust off the reinforcement to reduce the possibility of future corrosion if the sills once more become wet, and reinstate the concrete surfaces to make good with best available products and techniques at reasonable cost to the Owners.
… Irrespective of cost, however, owing to the variables introduced by original construction and subsequent deterioration, we are not able to provide quality assurance of the repair in the manner in which new construction can be certified. (Tribunal emphasis)

The Tribunal shall make an order pursuant to s 83(1) of the ST Act concerning the western elevation foyer window on level 21 replacement.

Repair walls, ceilings and carpets and internal painting of walls in foyer of level 21

For the reasons expressed, the Tribunal concludes that there has been no breach of the Strata Company's duty imposed by s 35(1)(c) of the ST Act in repairing and repainting the walls of the level 21 foyer and recarpeting the level 21 foyer. The delay has been substantially caused by the need to make the plant room watertight. The Tribunal finds that at all times the Strata Company has had in place a process to remediate the walls, carpet and paintwork to the level 21 foyer once watertight and has engaged Mr Chudleigh on that basis. Accordingly, the Tribunal shall not make any order sought by Maludra on this matter in CC 611.

Consideration CC 612 of 2014

Fire safety system

The Tribunal concludes that the Strata Company has and is keeping the fire safety system in good repair since about 2013 and the same has been properly tested at all times since about November 2014. The Strata Company has not breached the duty imposed by s 35(1)(c) of the ST Act in respect of the fire safety system.

Plant room

On the evidence, there could have been no delay in the Strata Company remediating the plant room until after the orders made in CC 917 of 2015 were complied with. As stated, the last of the final orders were made on 14 November 2016 after the final hearing of these proceedings. The Tribunal concludes that the Strata Company has not breached the duty imposed by s 35(1)(c) of the ST Act duty in respect of the plant room.

Downpipes

In the case of the downpipes, the Tribunal concludes that the Strata Company has maintained the downpipes and made repairs from time to time to the same and which down pipes do not leak at the date of the final hearing. The Tribunal also concludes that the Strata Company has adopted a process to maintain and where and when necessary replace sections of downpipe which process includes raising sufficient funds for that task. Consequently, the Tribunal concludes that the Strata Company has not breached the duty imposed by s 35(1)(c) of the ST Act.

Level 1-20 foyer windows

The Tribunal is not satisfied on the evidence that any foyer windows on levels 1 20 leak and therefore none is in need of immediate and imminent replacement. Again in recognition that the original foyer windows are nearing the end of their serviceable life, the Strata Company is in the process of resolving how the foyer windows will be replaced in due course. Accordingly, the Tribunal concludes that the Strata Company has not breached the duty imposed by s 35(1)(c) of the ST Act.

Consideration CC 156 of 2014

For the reasons expressed, the Tribunal concludes that the Strata Company is not obliged to replace the balcony window to Lot 39. The failure of the CC 156 applicants to provide unconditional access to the Strata Company's builder and comply with the Strata Company's directions (including the direction to remove the air-conditioning unit servicing Lot 39) is the reason why the balance of the original windows in Lot 39 have not been replaced. The Tribunal concludes that the Strata Company has not breached the duty imposed by s 35(1)(c) of the ST Act in not replacing any of the Lot 39 windows.
Accordingly, the Tribunal shall not make any order sought pursuant to s 83(1) of the ST Act in CC 156.

Orders

For the reasons expressed the Tribunal makes the following orders:
In CC 611 of 2014
1.Pursuant to s 81 of the Strata Titles Act 1985 (WA), save as is provided in order 2 hereof, the application is dismissed.
2.Pursuant to s 83(1) of the Strata Titles Act 1985 (WA), the respondent shall by 1 February 2018;
(a)remove the original western elevation foyer window on level 21 Windsor Towers;
(b)repair all concrete damage to the window opening of the western elevation foyer window on level 21 Windsor Towers;
(c)install a new window frame and glazing in compliance with all relevant building standards and obligations in place of the removed original western elevation foyer window on level 21 Windsor Towers as provided for in order 2(a) above; and
(d)raise such levies as is required to comply with this order.

In CC 612 of 2014
1.By consent, Nicole Jane Strachan is joined as an applicant in the proceeding.
2.Pursuant to s 81 of the Strata Titles Act 1985 (WA), the application is dismissed.
In CC 156 of 2015
1.By consent, Nicole Jane Strachan is joined as an applicant in the proceeding.
2.Pursuant to s 81 of the Strata Titles Act 1985 (WA), the application is dismissed.

I certify that this and the preceding [245] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS N OWEN-CONWAY, MEMBER