Nemirovskaya v Briggs
[2022] VSC 685
•11 November 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2022 01365
| RAISSA NEMIROVSKAYA | Plaintiff |
| v | |
| STELLA BRIGGS | Defendant |
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JUDGE: | GARDE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 September 2022 |
DATE OF JUDGMENT: | 11 November 2022 |
CASE MAY BE CITED AS: | Nemirovskaya v Briggs |
MEDIUM NEUTRAL CITATION: | [2022] VSC 685 |
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WATER ACT – Causation – Finding that causation not established – Whether Victorian Civil and Administrative Tribunal required to make further findings – Whether all areas of water damage considered – Whether findings supported by evidence – Irrelevant considerations – Sufficiency of reasons – Determination of loss and damage – Works ordered to be performed by respondent – Burden of proof of loss and damage on the claimant on the balance of probabilities – No error on a question of law – No real prospect of success – Water Act 1989 (Vic) ss 16(1), 19; Owners Corporations Act 2006 (Vic) ss 128-129; Wrongs Act 1958 (Vic) ss 51-52; Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J Anthony-Shaw | LGM Advisors |
| For the Defendant | Mr J B Masters | Best Hooper |
HIS HONOUR:
Introduction
Raissa Nemirovskaya (‘the applicant’) seeks leave to appeal and if leave is granted, appeals from the decision of the Victorian Civil and Administrative Tribunal (‘Tribunal’) published on 22 March 2022 in proceeding BP329/2020 (‘VCAT proceeding’).[1] The proceeding in this Court is brought under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’).
[1]Nemirovskaya v Briggs (Building and Property) [2022] VCAT 232 (‘reasons’).
The VCAT proceeding is a claim by the applicant for water damage to her unit, Unit 8, in a two-storey block of units in Glenhuntly, against Stella Briggs (‘the respondent’), who is the owner of Unit 9. Unit 9 is located above Unit 8. The applicant claimed that the water damage was caused because the exterior balcony to Unit 9 was not waterproof, with the result that water leaked into the ceiling space of Unit 8. The respondent said that the cause of the water damage was not the exterior balcony, but rather extension works to Unit 8 carried out by the applicant.
The hearing
The VCAT proceeding was heard by a senior member of the Tribunal on 6 and 7 December 2021. The Tribunal conducted a site inspection of the two units. Evidence was given by the applicant, the respondent and the respondent’s former husband. Expert evidence was given by Ian Fleming, a registered builder and engineer engaged by the applicant and Roy Spencer, an architect engaged by the respondent. The experts provided reports and gave evidence concurrently. After the hearing, the parties filed written submissions.
The reasons
As to the major area of water damage, the Tribunal found:
The primary water damage, in respect of which the applicant brings her claim, is the significant interior damage around the ceiling area where the bathroom/laundry extension meets the living room. Having heard the evidence from the parties, in particular the expert evidence of Mr Fleming and Mr Spencer, and having viewed the premises in some detail on the afternoon of the first day of the hearing, I am satisfied that the cause of this damage is the extension works carried out by the applicant.
As discussed earlier in these reasons, the design and construction of the unit 9 balcony allowed for water to flow across the balcony towards the eastern edge of the balcony. The water would then fall over the tiled edge of the balcony, with most of the water being caught by a gutter. To the extent a small amount of water tracked on the underside of the balcony slab, a drip groove was in place in order to catch such ‘tracking’ water and dispel it down the exterior wall of the building. This drainage function was interfered with by the extension works carried out by the applicant, in particular the abutting of the skillion roof to the balcony slab edge and the installation of the skillion flashing.
The skillion flashing was intended to direct water overflowing the eastern edge of the balcony down the exterior face of the skillion flashing on to the skillion roof, and from there the water would be directed to a box gutter at the edge of the skillion roof. Having viewed the skillion flashing from the exterior, and having also viewed, from the inside of unit 8 via an investigative hole cut in the ceiling, the roof space where the skillion roof meets the balcony slab edge, I am satisfied that the skillion flashing has created a source of water entry into unit 8 via the interior face of the skillion flashing, causing the significant water damage. Water flowing over the eastern edge of the balcony, instead of flowing down the exterior face of the skillion flashing on to the skillion roof, tracks along the underside of the balcony tiles to the interior face of the skillion flashing, and from there it falls into the unit 8 roof space.
It appears that this was identified as a source of water entry to unit 8 by whomever it was (most probably [a building firm engaged by the owners corporation to investigate the leak]) who applied flexible membrane over the exterior face of the skillion flashing. The intention might well have been to prevent water tracking behind the flashing, but it was never an effective long-term solution, and much damage would have already occurred by the time these attempted remedial works were undertaken.
On the evidence before me, I am not satisfied that this major area of water damage to the applicant’s unit has been caused by the acts or omissions of the respondent. On the evidence before me, the water damage is the direct result of the extension works carried out by the applicant.
The applicant has failed, on the balance of probabilities, to establish the liability of the respondent in respect of this major area of the water damage.[2]
[2]Reasons, [41]-[46].
As to the entry porch area damage, the Tribunal found:
There is a further relatively minor area of water damage to the applicant’s front porch entry area which is located below the northern end of the unit 9 balcony. There is a rendered brick pier at the entrance which supports the balcony. There are signs of minor water damage to the render at the top of the pier and the surrounding ceiling area to the porch. Once the cause of the water leak is addressed, rectification of the water damage is a modest task that would include minor repairs to the render, caulking and repainting the affected areas.
Mr Fleming and Mr Spencer agree that this damage is caused by water leaching through the edge of the unit 9 tiled balcony. The northern end of the balcony has a rendered parapet wall. Unlike the parapet wall on the eastern side of the balcony, the northern parapet wall does not have a 20 mm gap at the bottom. It was apparent at the view that where the northern parapet wall abuts the tiled balcony there is noticeable dirt and moss growth. One can also see dirt and moss growth under the lip of the exterior edge tiles in this area.
Mr Spencer says this is a maintenance issue, although he does not specify the required maintenance works. It seems to me that maintenance would include cleaning away the dirt/moss and re-caulking.
Mr Fleming says it is unclear, looking at the exterior edge tiles, whether there is a waterproof membrane between the tiles and the underlying balcony slab surface. He gave evidence also, however, that the concrete slab itself is waterproof.
On the evidence before me, I am satisfied that the water damage to the porch area of unit 8 is the result of a lack of maintenance to the unit 9 balcony, particularly where the northern parapet wall abuts the balcony. I am satisfied that the water leak will be adequately addressed by maintenance works, and it is not necessary to remove and replace the balcony tiles.
Mr Fleming allows a sum, not including contingency, builder’s margin and GST, of $2062.40 ($1462.40 as estimated in November 2020, and an additional $600 in his updated estimate), for repairs to ‘External – brick pier and balcony edge’. It is not clear what these works actually entail, however it seems to me, having looked at Mr Fleming’s entire cost estimate, that this is Mr Fleming’s estimate for the maintenance works required to address the water leak in this area and the repair of the render to the brick pier, but excluding re-painting. (Painting works overall are addressed as a separate item in Mr Fleming’s estimate).
I am satisfied that the respondent bears liability for this area of water damage. The respondent’s failure to attend to reasonable maintenance works is the cause of flows of water from the respondent’s property to the applicant’s property, that is the leaching of water from the respondent’s balcony into the applicant’s entry porch ceiling area. The flows are not reasonable in that they have caused apparent water damage, albeit relatively minor.
I will order that the respondent carry out works out [sic] to prevent such flows of water. I will allow 6 months as a reasonable time for attending to such works. I think it reasonable also to allow the applicant to return to the Tribunal for further orders in the event the respondent fails to attend to these works within the 6-month period. Such further orders may include an order in the form of mandatory injunction requiring the respondent to provide access to her property to contractors engaged by the applicant to attend to the requisite maintenance works, and an order for damages in respect of the cost of having such works attended to.
I will also order the respondent to pay damages to the applicant, being my assessment of the reasonable cost the applicant will incur to rectify the water damage to her front porch area. As noted above, it seems to me that such rectifications will include repair to the render on the brick pier, caulking works and repainting. Doing the best that I can, I allow $1031.20 (half of Mr Fleming’s above-mentioned estimate of $2062.40) plus a 30% builder’s margin, plus GST for a total of $1474.61, rounded off to $1475.[3]
[3]Ibid, [47]-[55].
Tribunal orders
The Tribunal made orders which related to the entry porch area damage and were as follows:
(a)the respondent must pay the applicant $1475;
(b)the respondent must, within 6 months of the date of these orders, carry out works to prevent the flow of water from the northern end of the balcony of the respondent’s property into the front porch area of the applicant’s property;
(c)liberty to the applicant to apply for further orders in the event that the respondent fails to comply with the above order; and
(d)costs reserved.[4]
[4]Ibid, [56].
Relevant provisions
Section 16(1) of the Water Act 1989 (Vic) (‘Water Act’) provides:
(1) If—
(a)there is a flow of water from the land of a person onto any other land; and
(b) that flow is not reasonable; and
(c) the water causes—
(i) injury to any other person; or
(ii)damage to the property (whether real or personal) of any other person; or
(iii) any other person to suffer economic loss—
the person who caused the flow is liable to pay damages to that other person in respect of that injury, damage or loss.
Section 19 of the Water Act provides:
(1)The Tribunal has jurisdiction in relation to all causes of action (other than any claim for damages for personal injury) arising under [s 16]…
(3) In exercising jurisdiction conferred by subsection (1), the Tribunal—
(a)may by order, whether interim or final, grant an injunction (including one to prevent an act that has not yet taken place) if it is just and convenient to do so; or
(ab)may make an order for payment of a sum of money awarding damages in the nature of interest; or
…
(5)The Tribunal may in respect of any works that give rise to a cause of action of a kind referred to in subsection (1) make any order with respect to—
(a) compensation for damage to land; or
(b) the continuation, removal or modification of works; or
(c) payment of the costs of the removal or modification of works—
that it considers appropriate.
…
(9)In determining a cause of action arising under [s 16] of this Act the Tribunal must apply to the questions of causation and remoteness of damage the same tests as a court would apply to those questions in an action based on negligence.
…
Sections 128 and 129 of the Owners Corporations Act 2006 (Vic) provide:
A lot owner must comply with this Act, the regulations under this Act and the rules of the owners corporation.
A lot owner must—
(a)properly maintain in a state of good and serviceable repair any part of the lot that affects the outward appearance of the lot or the use or enjoyment of other lots or the common property; and
(b) maintain any service that serves that lot exclusively.
Sections 51 and 52 of the Wrongs Act 1958 (Vic) (‘Wrongs Act’) provide:
(1)A determination that negligence caused particular harm comprises the following elements—
(a)that the negligence was a necessary condition of the occurrence of the harm (factual causation); and
(b)that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2)In determining in an appropriate case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3)If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the negligent person had not been negligent, the matter is to be determined subjectively in the light of all relevant circumstances.
(4)For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
In determining liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation.
The Court’s role
Parties to proceedings in the Tribunal may seek leave to appeal and if leave is granted, may appeal to this Court on a question of law from an order of the Tribunal.[5] Under s 148(2A) of the VCAT Act, leave to appeal can be granted only if the Court is satisfied that the appeal has a real prospect of success.
[5]VCAT Act, s 148(1)(b).
Preliminary matter
Subsequent to the publication by the Tribunal of the reasons, the applicant’s solicitor instructed Mr Fleming, the applicant’s expert witness, to provide a supplementary report reviewing various findings in the reasons. Mr Fleming provided a supplementary report dated 15 June 2022, which was exhibited to the affidavits of David Halliday, the applicant’s solicitor, filed 15 June 2022 and 31 August 2022. The applicant sought to rely on these affidavits and the supplementary report in this Court against the objection of the respondent.
I declined to receive the new expert material.
In Bulasa Pty Ltd v Baytown Properties Pty Ltd, Gillard J said:
It is necessary to say something about the nature of the appeal to this court. Mr Kraemer, on behalf of Bulasa, filed a number of affidavits and introduced additional facts to those before the Tribunal. In my opinion, that is impermissible. This court is concerned with what occurred at the Tribunal. The question whether there was an error of law is to be decided on the evidence that was before the Tribunal.[6]
[6](2003) 20 VAR 189, 194.
In He v Aloe & Co Pty Ltd, the Court of Appeal said as to an application that the Court should receive fresh evidence:
We declined to accede to that application. This being an appeal on a question of law, directed at the legal validity of the decision-making process before the Full Tribunal, we can see no basis for this Court receiving any fresh evidence of the kind adverted to. First, given the nature of an appeal on a question of law, the Court of Appeal has no role to consider the merits of the matter, that being precisely what a court dealing with questions of law cannot and does not do. Secondly, it would in any case be impossible for this Court to form any view on the merits in relation to the complainant’s relevant claims for loss. Thirdly, this was a topic which was ventilated in the Tribunal and there is nothing to show that these investigations could not have been undertaken before the Tribunal hearing.[7]
[7][2006] VSCA 235, [97] (Maxwell P, Eames and Redlich JJA).
Similar reasons apply in this present case. Firstly, the proceeding in this Court is an appeal on a question of law. I have no role revisiting the factual merits of the Tribunal’s decision. Secondly, it would be impossible for me to form any view about the state of the respective premises or the cause of the water damage. Thirdly, these topics were extensively investigated by the experts before the hearing. They were the subject of expert and lay evidence and an inspection by the Tribunal. The investigations subsequently undertaken by Mr Fleming could have been undertaken before the hearing, and the opinions that he has expressed in his supplementary report could have been expressed at the hearing.
The respondent relied on Commissioner of State Revenue v STIC Australia Pty Ltd, where Davies J said:
The jurisdiction of the Court to hear an appeal from VCAT is conferred by s 148 of the VCAT Act, which permits an appeal only on a question of law. The right of appeal conferred by s 148 is of a limited nature only. In Osland v Secretary to the Department of Justice, the High Court recently affirmed that the Court’s jurisdiction conferred by s 148 to hear an appeal from the Tribunal is enlivened only if there is a question of law, which is not merely a qualifying condition to ground the appeal but which is to constitute the subject matter of the appeal. Parliament, by creating a statutory right of appeal to a party to a proceeding before the Tribunal in the narrow terms of s 148, has disclosed an intention to limit the role of the Court on an appeal from the Tribunal and to limit the capacity of the Court to re-determine facts or re-exercise discretions. The legislative purpose of s 148 is to discourage parties from challenging the correctness of a decision of VCAT, except where legal error is demonstrable. An appeal before the Court under s 148 is not a merits review nor is it an appeal that merely involves a question of law. The matter comes before the Court solely by way of judicial review for the Court to correct errors of law by the Tribunal but not to examine the record of the Tribunal to determine whether some different decision could have been made. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd:
The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned.
The role of the Court is limited to reviewing the legal limits of the exercise of power. “Merits” review resides with the Tribunal and the Court is not to intervene in an essentially evaluative matter.[8]
[8](2010) 81 ATR 682, 687 (citations omitted) referring to Osland v Secretary to the Department of Justice (No 2) (2010) 241 CLR 320, 333 [21] (French CJ, Gummow and Bell JJ) and Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40-41.
This passage provides additional reason as to why the supplementary report cannot be received into evidence in a proceeding in this Court under s 148 of the VCAT Act. The right of appeal under s 148 is enlivened only if there is an error by the Tribunal on a question of law which arose in the course of the VCAT proceeding. Procedural fairness apart, there cannot be an error on a question of law arising from evidence which the Tribunal was not presented with and did not hear.
Amended notice of appeal
In an amended notice of appeal filed 7 September 2022, the applicant relies on six grounds of appeal. The first ground raises a question of law as to the findings that the Tribunal was required to make. The other grounds challenge factual findings made by the Tribunal by contending that the Tribunal took into account irrelevant considerations or did not give sufficient reasons.
The parties relied on the affidavits and exhibits of David Halliday, filed 26 April 2022, and Robert McKay, filed 3 August 2022, and provided written submissions as to the merits.
Ground 1
Whether the Tribunal erred in law or alternatively failed to set out sufficient reasons in failing to consider and make findings on the bathroom/extension and living room ceiling areas of water ingress to [Unit 8] according to the criteria mandated by s 16 of the Water Act.
Applicant’s submissions
The applicant submitted in summary that:
(a) the Tribunal’s findings did not address or analyse the elements of the applicant’s claim for loss and damage as set out in s 16(1) of the Water Act;
(b) there was no clear finding that the flow of water was reasonable by reference to the source of water being Unit 9;
(c) there was a failure to identify and consider all areas of damage; and
(d) there was a failure to adequately address causation by reference to the expert evidence.
Respondent’s submissions
The respondent submitted that:
(a) if an applicant’s claim under s 16(1) of the Water Act is to succeed, each of the matters listed in s 16(1) must be established;
(b) if the Tribunal finds that one of the matters required to be shown by the applicant under s 16(1) of the Water Act has not been shown, it is open to the Tribunal to dismiss the claim;
(c) section 19(9) of the Water Act requires the Tribunal to apply the same tests of causation as a court would apply in an action based on negligence; and
(d) the Tribunal was satisfied that the water damage was the direct result of the applicant’s extension works to Unit 8.
Findings required to be made
The matters that must be demonstrated by a claimant to establish liability under s 16(1) of the Water Act are cumulative and are listed in ss 16(1)(a), (b) and (c). Similar provisions were considered in Hazelwood Power Partnership v Latrobe City Council,[9] and Pumpa v Goulburn-Murray Rural Water Corporation.[10] In the present case, before the applicant could establish liability in the respondent, it was necessary to show that the flow of water from Unit 9 into Unit 8 caused the water damage to Unit 8. It was also necessary to show that the flow of water was not reasonable having regard to the matters listed in s 20 of the Water Act.
[9](2016) 218 LGERA 1 (Warren CJ, Osborn and Beach JJA).
[10](2010) 27 VR 577 (Cavanough J).
Section 19(9) of the Water Act gives guidance as to how questions of causation and remoteness of damage are to be determined, and provides that the Tribunal must apply the same tests as a court would apply to those questions in an action based on negligence.
In Victoria, the general principles that apply to a determination that negligence caused particular harm are set out in s 51(1) of the Wrongs Act. Relevantly, it is necessary for the applicant to prove that the flow of water from Unit 9 was a necessary condition of the occurrence of water damage to Unit 8.[11] No issue arose as to the operation or effect of s 51(1) before me or before the Tribunal. It was not referred to in the submissions. Section 52 provides that it is the claimant who has the burden of proof on the balance of probabilities of the relevant facts relating to causation.
[11]See Strong v Woolworths Ltd (2012) 246 CLR 182, 190 (French CJ, Gummow, Crennan and Bell JJ); Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, 443 (French CJ, Gummow, Hayne, Heydon and Crennan JJ); Wallace v Kam (2013) 250 CLR 375, 383 (French CJ, Crennan, Kiefel, Gageler and Keane JJ).
Analysis
The Tribunal’s findings of fact included that:
(a) the cause of the major area of water damage to Unit 8 was the extension works carried out by the applicant;
(b) it was not satisfied that the major area of water damage was caused by the acts or omissions of the respondent;
(c) the water damage was the direct result of extension works carried out by the applicant; and
(d) the applicant failed on the balance of probabilities to establish the liability of the respondent in respect of the major area of water damage.[12]
[12]Reasons, [41], [45]-[46].
Given that the Tribunal held that the applicant failed on causation in relation to the major area of damage to Unit 8, there was no need or legal requirement for the Tribunal to make findings of fact as to all the other elements. This is well illustrated by the Court of Appeal decision of Noel Johnson’s No 1 Pty Ltd v Kennedy-Bush.[13] In this decision, the appellant admitted at the hearing before the Tribunal that the pre-conditions in ss 16(1)(a), (b) and (c) of the Water Act were satisfied. The one remaining requirement which the claimant had to establish was which person or persons caused the flow of water resulting in the water damage. The Court of Appeal declined to overturn the Tribunal’s finding that on the balance of probabilities the appellant was responsible for the water damage.
[13][1996] VicSC 285 (20 June 1996) (Winneke P, Charles and Hayne JJA).
Likewise, in Spagnolo v Body Corporate Strata Plan 418979Q, Robson J was able to determine a claim under s 16(1) of the Water Act on the issue under s 16(1)(a) of whether the relevant flow of water was ‘from the land of a person onto other land’.[14]
[14](2007) 27 VAR 466, 475.
I conclude that the Tribunal did not err in law when it did not make factual findings as to all of the pre-conditions in s 16(1) of the Water Act.
Areas of damage
The applicant submitted that the Tribunal did not consider all areas of water damage and omitted to refer to damage to the kitchen area of Unit 8. The respondent submitted that the Tribunal addressed this damage as part of what it described as the major area of water damage.
Analysis
The Tribunal is an expert tribunal, and the senior member who heard the VCAT proceeding was assigned to the Building and Property List because of his special knowledge and experience relevant to building and property matters.[15]
[15]Victorian Civil and Administrative Tribunal Rules 2018 (Vic) r 2.09(2).
The Tribunal had the benefit of an expert report, which included a cost estimate and an updated cost estimate, provided by Mr Fleming. It also had a report and supplementary report from Mr Spencer.
On the afternoon of the first day of the hearing, the Tribunal conducted a view of both properties ‘in some detail’ including the areas of damage to Unit 8.[16] Mr Fleming, the applicant’s expert, attended the view. Mr Spencer did not. Most of the second day of the hearing was taken up with the concurrent expert evidence of Mr Fleming and Mr Spencer. The transcript shows that the Tribunal extensively questioned the experts in relation to causation as the primary issue in the VCAT proceeding.
[16]Reasons, [3], [41].
The Tribunal described the primary water damage as ‘the significant interior damage around the ceiling area where the bathroom/laundry extension meets the living room’.[17]
[17]Ibid, [41].
The loss and damage claimed by the applicant was detailed in the cost estimate and updated cost estimate provided by Mr Fleming. The cost estimates included preliminaries and professional fees but the major items of demolition and construction related to the bathroom and lounge, where most of the repair work was to be done. The Tribunal’s description of the major area of water damage is consistent with the particulars and cost estimates relied on by the applicant which show the bathroom and lounge as the predominant areas where rectification work was required and expense would be incurred. Likewise, Mr Fleming’s photographs in his report extensively feature the water damage to the bathroom and lounge.
I am not satisfied that the Tribunal did overlook or fail to take into account the water damage to the kitchen area of Unit 8. Rather, the Tribunal treated this water damage as part of what it described as the ‘major area of water damage’. The Tribunal observed the areas of water damage during its inspection of Unit 8. The Tribunal did not fall into error when it addressed the applicant’s claim by reference to the key area of water damage as identified in Mr Fleming’s cost estimates.
The applicant’s submission concerning the kitchen area of Unit 8 must fail for another reason. The water damage claim for the laundry and living room area failed for the reasons given by the Tribunal. The suggested claim for water damage to the ceiling of the adjoining kitchen area must have failed for the same reasons. The suggested omission of the kitchen area damage made no difference to the result.
For the reasons that I have given, the applicant’s submission regarding the suggested omission of an area of water damage to the kitchen must fail.
Conclusion
Ground 1 fails.
Ground 2
Whether the Tribunal erred by finding that a drainage function existed prior to the extension works and that the drainage function was interfered with by the extension works in circumstances where there was no evidence of the drainage function existing prior to the extension works.
Tribunal’s findings
The Tribunal made findings of fact relating to the construction and drainage of the balcony of Unit 9 in these terms:
The building was originally constructed to provide for water drainage from the balcony as follows. The balcony has rendered parapet walls. The east facing parapet wall has a gap of around 20 mm between the bottom of the wall and the tiled balcony. The fall of the balcony is such that water falling on the balcony flows towards the eastern edge of the balcony, through the gap under the parapet wall and over the edge of the balcony. Most of that water is caught by a gutter installed under the edge of the balcony slab and is directed to a downpipe. I say ‘most’ of the water in the sense that some water, instead of falling into the gutter, will track down the face of the slab and along the underside of the balcony slab which protrudes beyond the wall of the building. The underside of the balcony slab has a drip groove adjacent to the gutter. Water that does not make its way into the gutter, and instead tracks to the underside of the protruding portion of the balcony slab, will meet the drip groove and then fall to the ground or perhaps dribble down the wall to the ground.[18]
[18]Reasons, [8].
The Tribunal also referred to the drip groove in another passage that I have set out above.[19]
[19]See extract from reasons at [4] above.
Applicant’s submissions
The applicant submitted that there was no evidence that:
(a) a gutter previously existed in the position where the extension is now located;
(b) there was a drip groove present on the underside of the balcony above the extension or that such a method of drainage was interfered with by the extension; or
(c) the function of a drip groove was to catch tracking water and dispel it down the exterior wall of the building.
Respondent’s submissions
The respondent submitted that:
(a) the factual findings made by the Tribunal were supported by the expert evidence at the hearing; and
(b) the Tribunal had the benefit of a site inspection, and expert reports.
Analysis
On the second hearing day, the Tribunal addressed its observations during the inspection of Units 8 and 9 conducted on the previous day to the two experts in the following exchange:
SENIOR MEMBER: All right. So, here’s what I really want to discuss with you. The primary issue in this case is whether the leaking that is clearly occurring to the applicant’s unit is the result of a defective balcony upstairs, or – and/or the result of the extension, roofing and room which was added. That’s the million dollar question, all right.
WITNESS SPENCER: Yes.
SENIOR MEMBER: And I need to get both of your opinions on that. But before I do that, just so you know, I did have a look yesterday and what I saw was, where the roof is there’s a flashing that goes – there’s an L flashing, and all it does is abut the underside of the overlip of the tile, all right.
WITNESS SPENCER: Yes.
SENIOR MEMBER: That’s all it does.
WITNESS SPENCER: That’s correct.
SENIOR MEMBER: And I noted where there were – where the roof finishes and the balcony continues on, as it always would have continued on, I noted that there is – you have the tiles on top of the concrete slab. I couldn’t observe a membrane, but that doesn’t mean there’s no membrane, I just couldn’t observe one, all right, which I think is consistent with Mr [Fleming’s] observation. But underneath the slab – so you have the slab, and then you have a gutter underneath it, all right?
WITNESS SPENCER: Yes.
SENIOR MEMBER: And I put my hand just inside the underside of the rendered slab and I felt a groove, all right.
WITNESS SPENCER: Yes, understand.
WITNESS [FLEMING]: Yes.
SENIOR MEMBER: And I mentioned that to you yesterday, Mr [Fleming], I think.
WITNESS [FLEMING]: Yes.
SENIOR MEMBER: And my understanding is that that is the original drip groove; is that correct?
WITNESS [FLEMING]: That’s correct.
SENIOR MEMBER: Okay. So, I know that. So, the system is designed – we’ve got a balcony, it’s got a clear gap. The intention is to direct water over the edge to collect it in a gutter. To the extent some of it goes down the face of the – the face of the slab, the balcony slab. It gets caught in that drip groove and then drops off and goes down the wall. That was the original intention, as I understand it.
Now we have this roof that has a flashing in place, and the water that does not – if water does not fall onto the flashing and onto the roof and away, any water that makes its way back inside underneath the tiles, from what I can see has nowhere to go, but into the structure of the roof. That’s the issue that I’m pondering. And I think that’s your point. Is that right, Mr Spencer?
WITNESS SPENCER: That’s correct. That is.
SENIOR MEMBER: All right. So, that’s what I need to ask you about, Mr [Fleming]. Does it all make sense that I said there?
WITNESS [FLEMING]: Yes.
The Tribunal’s findings as to a gutter and drip groove are supported by the evidence of Mr Fleming who confirmed the existence of a drip groove inside the underside of the rendered slab supporting the balcony. The Tribunal’s observations about the flow of water over the tiled edge of the balcony of Unit 9 into a gutter were confirmed by Mr Spencer. The Tribunal discussed with the experts whether the drainage function was interfered with by the flashing to the skillion roof erected as part of the applicant’s extension works. Both experts and the parties had the opportunity of responding and clarifying or correcting the impression the Tribunal had obtained from the view. Counsel for the respective parties had the opportunity of asking the witnesses further questions or making submissions about what the Tribunal had observed or said.
While Mr Fleming did refer in his expert report to the lack of a drip groove, his oral evidence before the Tribunal was to the opposite effect.
I conclude that there was evidence before the Tribunal that supported the findings that it made, and it was open to the Tribunal to make the findings that it did.
Conclusion
Ground 2 fails.
Ground 3
Whether the Tribunal erred in law in failing to consider a relevant consideration, or alternatively failed to set out sufficient reasons:
(a)by making no findings or giving no reasons whatsoever in relation to the evidence of water damage into the corner of the ceiling between the kitchen and living areas directly below Unit 9’s balcony; and
(b)in making no order that remedial works were required to be undertaken by the respondent in respect of the water ingress causing damage to the applicant’s kitchen area.
Applicant’s submissions
The applicant submitted that:
(a) the applicant alleged water damage to the kitchen area, extension area and brick pier area; and
(b) the Tribunal failed to reach any findings or conclusions in relation to the water damage to the kitchen area.
Respondent’s submissions
The respondent submitted that:
(a) the applicant’s points of claim and prayer for relief made no specific reference to water damage to the kitchen area;
(b) the applicant’s further and better particulars and cost estimates make no reference to kitchen area water damage; and
(c) Mr Fleming’s report makes no reference to kitchen area water damage.
Analysis
The reasons given in relation to Ground 1 largely address this ground.
I accept the respondent’s submission that the applicant’s points of claim in the VCAT proceeding make no specific reference to kitchen area water damage, stating that ‘further particulars as to loss and damage will be supplied upon the provision of expert reports’. Likewise, the prayer for relief makes no reference to kitchen area water damage.
The applicant did file further and better particulars dated 3 December 2021. However, the further and better particulars and Mr Fleming’s cost estimates make no reference to water damage to the kitchen area. The cost estimates detail the repair costs of the works necessary to the bathroom and lounge, and the assessed costs associated with demolition, carpentry, plastering, plumbing, tiling, glazing, rendering and painting as well as the costs associated with the installation of a new cupboard, shower recess and skylight. Likewise, Mr Fleming’s expert report makes no reference to kitchen area water damage.
I am not satisfied that the Tribunal did overlook or fail to take into account water damage to the kitchen area of Unit 8. Rather, it is very likely that the Tribunal included this damage as part of what it described as the ‘major area of water damage’. The Tribunal made no error when it gave reasons that addressed the applicant’s claims in the terms in which they were stated in the applicant’s particulars and cost estimates before the Tribunal.
As I have said, it would have made no difference if the water damage to the kitchen area ceiling had been specifically referred to by the Tribunal as part of the major area of water damage. The claim was unsuccessful for the reasons given by the Tribunal. The suggested failure to refer specifically to the kitchen area water damage made no difference to the result.
Conclusion
Ground 3 fails.
Ground 4
Whether the Tribunal erred in law in failing to consider or make findings in relation to the evidence given by the experts for both parties regarding:
(a)the works required to rectify water ingress to the brick pier area;
(b)the works required to rectify water ingress to the kitchen area; and
(c)removal and replacement of the tiles and waterproof membrane to the respondent’s balcony.
Applicant’s submissions
The applicant submitted that:
(a) removal of the tiles and replacement of the waterproof membrane were necessary to stop the flow of water;
(b) the evidence could not reasonably support a finding by the Tribunal that maintenance works would be effective to properly address the water ingress to Unit 8;
(c) there was evidence before the Tribunal that cleaning and the application of silicone was only a temporary measure;
(d) there was also evidence:
(i)of rising damp in a parapet wall;
(ii)of multiple sources of water ingress into Unit 8; and
(iii)that the extension was not the sole cause of the damage to Unit 8.
Respondent’s submissions
The respondent submitted that:
(a) the Tribunal’s orders direct works to be carried out by the respondent to prevent the flow of water from the northern end of the balcony of Unit 9 into the front porch of Unit 8;
(b) the brick pier area forms part of the porch of Unit 8;
(c) the Tribunal did not fail to consider or make findings in relation to the evidence of the experts as to the works required to rectify water ingress to the kitchen area; and
(d) the Tribunal did not err when it failed to require the balcony tiles and membrane to be removed.
Analysis
Ground 4 seeks to revisit matters of fact determined by the Tribunal. It seeks to establish legal error by alleging that the Tribunal failed to consider or make findings in relation to the matters listed in the ground.
The Tribunal found that there was a relatively minor area of water damage to the front porch entry area of Unit 8. The front porch entry area included a rendered brick pier at the entrance to Unit 8 which supported the balcony to Unit 9. There were signs of minor water damage to the render and to the surrounding ceiling area to the porch. Once the cause of the water leak was addressed, the Tribunal found that rectification of the water damage was a ‘modest task’ including minor repairs to the render, caulking and repainting of the affected areas.[20]
[20]Reasons, [47].
After discussing the expert evidence, the Tribunal was satisfied that the water damage to the porch area of Unit 8 was the result of a lack of maintenance to the Unit 9 balcony, particularly where the northern parapet wall abutted the boundary. The Tribunal observed that there was noticeable dirt and moss growth under the lip of the exterior edge tiles in the area where the northern parapet wall abutted the tiled balcony.[21]
[21]Ibid, [48].
The Tribunal found that the water leak would be adequately addressed by maintenance works, and that it was not necessary to remove and replace the balcony tiles.[22]
[22]Ibid, [51].
The Tribunal reviewed Mr Fleming’s assessment of the costs of the works required to address the water leak in the entry porch area, concluding that the cost estimate of $2,062.40 (to which $600 was added in Mr Fleming’s updated estimate) represented his estimate for the maintenance works required to address the water leak in the front porch area of Unit 8 including the repair of the render but excluding painting works, which were separately addressed.[23]
[23]Ibid, [52].
The Tribunal specifically considered the existence of, or need for, a membrane under the tiles constituting the surface of the balcony to Unit 9. The Tribunal accepted Mr Fleming’s evidence that it was unclear looking at the exterior edge tiles whether there was a waterproof membrane between the tiles and the underlying balcony slab surface, and that the concrete slab itself was waterproof.[24] The Tribunal noted during the hearing that it did not observe a membrane under the tiles, although this did not mean that there was not one.[25]
[24]Ibid, [50].
[25]See extract from reasons at [44] above.
As to the matters raised by the applicant in ground 4, I am satisfied that:
(a) the Tribunal considered and made findings as to the maintenance works it considered necessary to address water ingress to the brick pier area including the repair of the render to the brick pier;
(b) the Tribunal considered and made findings which included the kitchen area for the reasons given above; and
(c) the Tribunal and the experts were unsure whether a membrane existed under the tiles of the balcony to Unit 9. The Tribunal held that it was not necessary to remove and replace the balcony tiles.
Conclusion
Ground 4 fails.
Ground 5
Whether the Tribunal erred in law by considering an irrelevant consideration, or failing to give adequate reasons, namely that the monetary amount specified in paragraph 1 of the Tribunal’s orders was appropriate or sufficient for reparation of the damage to the brick pier area or prevention of further damage to the brick pier area.
Applicant’s submissions
The applicant submitted that:
(a) the quantum of compensation awarded for the rectification of the balcony was misconceived;
(b) the evidence of Mr Fleming upon which the Tribunal based its award was not relevant evidence of the reparatory works which would prevent further water ingress in this area;
(c) the Tribunal divided Mr Fleming’s estimate of $2,062.40 in half as the estimate included maintenance works required to address the water leak that the Tribunal had decided to order the respondent to perform; and
(d) the Tribunal acted unreasonably in awarding damages.
Respondent’s submissions
The respondent submitted that:
(a) the Tribunal observed that it was not clear what was entailed by the works described in Mr Fleming’s cost estimates as ‘External – brick pier and balcony edge’; and
(b) the Tribunal stated that it appeared from Mr Fleming’s evidence that the cost estimate was his estimate for the maintenance works required to address the water leak in this area and the repair of the render to the brick pier, but excluding repainting.[26]
[26]Reasons, [52].
Analysis
The Tribunal found in favour of the applicant in relation to the water damage to the entry porch area. It determined that it was appropriate to order the respondent to carry out works to prevent the flow of water from Unit 9 into the front porch area of Unit 8. In practical terms, this meant that the respondent had to perform, at her own cost, maintenance works necessary to Unit 9 to stop the flow of water into the front porch area of Unit 8. This was an appropriate way for the Tribunal to proceed and avoided the difficulties that might have arisen if the applicant were to perform works on the respondent’s property.
The burden of proof of the amount of loss suffered by the applicant arising from the entry porch area damage was on the applicant. The applicant solely relied on Mr Fleming’s cost estimate made in his report of November 2020 as increased by his updated estimate made in December 2021. Mr Fleming allowed the sum of $1,462.40 for ‘External – brick pier and balcony edge’ in his report of November 2020 to which he added another $600 in December 2021. These amounts did not include contingency, builder’s margin and GST, but included maintenance works to the balcony edge which the Tribunal ordered the respondent to perform at her own expense.
The Tribunal calculated the loss and damage that the respondent should pay in relation to the entry porch damage as best it could by allowing 50% of Mr Fleming’s estimate and then adding a 30% builder’s margin and GST, giving a rounded total of $1,475. The 50% allowance was made as the respondent would perform part of the work contained in Mr Fleming’s estimate, and the Tribunal had no better breakdown of the respective costs of the works to the brick pier, and the maintenance works to be performed to the balcony edge.
I accept that the Tribunal’s estimate for the water damage to the entry porch area was the best estimate that it could make with the limited information that was available in the evidence. It has long been accepted that uncertainty in the quantification of damage, either in contract or tort, does not prevent an assessment, provided that some broad estimate can be made.[27]
[27]Callaghan v Wm C Lynch Pty Ltd [1962] NSWR 871, 877 (Evatt CJ, Herron and Sugerman JJ).
I reject the applicant’s submissions that the quantum awarded was misconceived or that the evidence of Mr Fleming was not relevant evidence of the cost of the reparatory works that would prevent further water ingress in this area. The Tribunal ordered the respondent at her own expense to carry out the work necessary to prevent the flow of water from the northern end of the balcony of Unit 9 into the front porch of Unit 8, and at the same time awarded the applicant $1,475 by way of damages. The Tribunal acted reasonably and appropriately in what it did on the only evidence of loss and damage that it had.
Conclusion
Ground 5 fails.
Ground 6
Whether the Tribunal erred in law by considering an irrelevant consideration, or failing to give adequate reasons, namely that caulking was appropriate or sufficient for prevention of further damage to the brick pier area.
Applicant’s submissions
The applicant submitted that:
(a) no evidence was led that applying caulking was sufficient for the prevention of further damage to the brick pier area; and
(b) both experts agreed that the balcony waterproofing required repairs.
Respondent’s submissions
The respondent submitted that:
(a) the Tribunal stated in the reasons that the rectification of the front porch area would include repair to the render on the brick pier, caulking works and repainting;
(b) the applicant’s contention that the appropriateness or sufficiency of caulking works for the prevention of further damage to the brick pier area was an irrelevant consideration was wrong; and
(c) the Tribunal did give adequate reasons as to this issue.
Analysis
I have noted that the Tribunal is an expert tribunal in building and property matters. It had the benefit of a site inspection which included the entry porch and brick pier area. The Tribunal ordered the respondent to carry out works to prevent the flow of water from the northern end of the balcony of Unit 9 into the front porch of Unit 8. In addition, the Tribunal ordered the respondent to pay damages to the applicant for repair works that included repair works to the render on the brick pier, caulking works and repainting. The Tribunal did not hold or suggest that caulking works alone would be sufficient to prevent the flow of water into the entry porch of Unit 8. Nonetheless, the Tribunal considered that caulking works were one measure that would assist in the waterproofing of the brick pier and entry porch area.
There was no error on a question of law by the Tribunal. The performance of caulking works was not irrelevant. The reasons given by the Tribunal are reasonable and sufficient.
Conclusion
Ground 6 fails.
Conclusion
The applicant has failed on all six grounds. I do not consider that any of the grounds relied on were sufficiently strong to have had a real prospect of success under s 148(2A) of the VCAT Act.
Leave to appeal will be refused.
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