Pursell v Eversham Close Pty Ltd

Case •

[2020] NSWDC 372

•

13 February 2020

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: Pursell v Eversham Close Pty Ltd [2020] NSWDC 372
Hearing dates: 9, 10, 11 October 2019
Plaintiff’s Supplementary Submissions – 15 October 2019
Defendant’s response to Supplementary Submissions – 21 October 2019
Date of orders: 13 February 2020
Decision date: 13 February 2020
Jurisdiction:Civil
Before: Hatzistergos DCJ
Decision:

Verdict for the Plaintiff (see [224])

Catchwords:

LEASES AND TENANCIES — Strata title — Leasehold strata scheme — Common property — Maintenance and repair of common property — Obligations of owner and occupiers — Continual water damage — Renewal of lease despite water damage

RESIDENTIAL AGREEMENT — Purported breach of lease — Failure to fix damaged property — Whether defendants failed to act reasonably in the circumstances — Whether making an application under s 140 of the SSMA Act 1996 would have been a reasonable step in fixing property

Legislation Cited:

Residential Tenancies Act 2010 (NSW), ss 3, 13, 43(2), 63(2), 65

Residential Tenancies Regulation 2010 (NSW)

Strata Schemes Management Act 1996 (NSW), ss 62, 138, 140, 150

Cases Cited:

Craig Kentell v Oliver Steele; Oliver Steele v Craig Kentell [2014] NSWCATCD 102

Edex International Holdings Pty Ltd v Marmalade Films Pty Ltd [2003] NSWCA 8; (2003) 56 NSWLR 63

Italia Ceramics International Super Ltd and Anor v CM Corporation Pty Ltd [2019] SASCFC54

Lee v Fuzessery [2010] NSWCTTT 205

Matthew Hanney and Belinda Smiley v Lachlan McCabe and Amanda Toshack [2014] NSWCATCD 239

Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313; (1997) 146 ALR 572

Reiss v Helson [2001] NSWSC 486

Timms and Simpson v Adams [2012] NSWCTT 53

Wang v Abdel-Messih [2017] NSWCATCD 11

Texts Cited:

Anforth, Allan, Peter Christensen, Christopher Adkins, Residential Tenancies Law and Practice New South Wales (Federation Press, 7th ed, 2017)

Category:Principal judgment
Parties: Bruce Alan Pursell (Plaintiff)
Eversham Close Pty Ltd (Defendant)
Representation:

Counsel:
Mr S.J. McMahon (Plaintiff)
Mr J McKenzie (Defendant)

Solicitors:
Laycock Burke Castaldi Lawyers (Plaintiff)
Priest Legal (Defendant)
File Number(s): 17/375351
Publication restriction: N/A

Judgment

  1. The Plaintiff was the tenant of property owned by the Defendant located at 401/22 Mort Street Port Macquarie in a building known as the Icon between February 2013 and December 2016 (the property). By all accounts it was a beautifully positioned apartment which had some appeal to the Plaintiff and his wife, who resided in another unit in the building prior to 2013. [1] Notwithstanding this their occupancy was, from time to time, disturbed principally by water ingress. Following the tenancy coming to an end and having paid all rent otherwise due, the Plaintiff brings these proceedings claiming damages.

    1. Exhibit A, Affidavit of Bruce Pursell at [10] and [52].

  2. The Plaintiff in his case gave evidence himself and also called his wife, Ms Lydia Pursell, who resided with him at the premises.

  3. The Defendant was the Landlord of the property. In its case it called Mr John Constant, a director of the Defendant, [2] as well as his wife Ms Margerite Constant who was a co-director and secretary. Ms Constant’s evidence was that the Defendant engaged managing property agents, Ray White Port Macquarie (the Agents) as the property managers for the premises. She stated that all dealings were left to them, and they liaised with the tenant, the Strata, [3] and others on the Defendant’s behalf and sought instructions as required. [4]

    2. T 78.35-.39.

    3. Owners Corporation of Strata Plan 83383.

    4. Exhibit 1 Affidavit of Bruce Pursell at [3]-[4].

  4. The Defendant also called Ms Lisa Lewis, the property manager of the Agent. Ms Lewis affirmed an affidavit, [5] in respect of which the Plaintiff did not seek to cross examine. The Defendant also tendered an affidavit affirmed by its solicitor Mr Jeremy William Bridgen dated 18 February 2019. This annexes records produced by the Strata Professionals Port Macquarie (the Strata Professionals) in response to a subpoena. [6] Those records inter alia reveal that Strata Professionals were the Strata Managers of the Strata from at least 24 May 2013.

Plaintiff’s Case

5. Exhibit 3, Affidavit of Lisa Lewis.

6. Exhibit 4, Affidavit of Jeremy William Bridgen.

Inspection

  1. Prior to entering into the lease the Plaintiff gave evidence that he inspected the property. In his affidavit, he stated that generally in his role as a property manager he was critical of the state of rental properties. However, apart from the property being dirty and infested with cockroaches, he did not see any damage or areas of concern on the inspection. [7] In oral evidence he qualified this, stating that it was that it was a cursory look, and he did not look for anything. [8] It was not in issue that he was familiar with the building in which the unit was located, having previously leased another unit in the block.

    7. Exhibit A, Affidavit of Bruce Pursell at [9].

    8. T 15.24-.32.

  2. Ms Pursell also gave evidence on this point. She stated that she went around to inspect the property, and there was no indication that there was anything wrong. She stated that both the Plaintiff and herself wanted to stay in the Icon, as they enjoyed living in it and it was easy for the Plaintiff to be able to move around. [9]

    9. Exhibit B at [5]-[6].

  3. In cross-examination, Ms Pursell stated that at the point that she inspected the property she did not know that there were any problems with it, [10] nor did the Plaintiff notice any problems. [11]

    10. T 61.29-.32.

    11. T 61.37-.39.

  4. The Plaintiff stated that on or about 4 February 2013, he sent an email to the Agent seeking to make some modification in light of the fact that he required easier access as he had impaired mobility. [12]

    12. Exhibit A, Affidavit of Bruce Pursell at [10]; Exhibit BP-1 at page 1.

First Tenancy Agreement

  1. On 13 February 2013, the Plaintiff entered into a tenancy agreement with the Defendant pursuant to which the Plaintiff agreed to tenant the property for a period of 104 weeks at a weekly rent of $650.00. This document, described in evidence as the ‘First Lease’, [13] was in the format of the Real Estate Institute of NSW Residential Tenancy Agreement. [14]

    13. The term lease was used during the hearing as synonymous with a residential tenancy agreement.

    14. Exhibit A, Affidavit of Bruce Pursell at [11]; Exhibit BP-1 at page 3.

  2. Ultimately, the Plaintiff and his wife took possession of the property on 18 February 2013 and were provided with a condition report to complete. [15]

    15. Exhibit A, Affidavit of Bruce Pursell at [13].

  3. Thereafter, the Plaintiff said he noticed a number of problems. He stated that he sprayed cockroaches, fixed broken lights, and cleaned windows which had building material on them. [16] He stated that he did these tasks himself, because that was the state that the property was presented to him. [17]

    16. T 15.39-.45.

    17. T 15.39-.45.

  4. On 23 February 2013, the Plaintiff stated that there was some water ingress in the lounge room and the two guest bedrooms. The water ingress required a bucket to be placed underneath the air conditioner duct in the hallway and to soak the carpet in certain rooms. [18]

    18. Exhibit A, Affidavit of Bruce Pursell at [14].

  5. On the same day the Plaintiff said that he contacted the Agent to advise of the water ingress in two bedrooms on the southern side of the property, as well as other issues that had been identified. [19] The Plaintiff stated that he thereafter recorded in the condition report many of the issues with the property, none of which had been noted by the Agent in the comments section of the initial report. These included:

    19. Exhibit A, Affidavit of Bruce Pursell at [15]; Exhibit BP-1 at pages 15-16.

  1. Some water damage on the walls of the main bedroom;

  2. Some water ingress in the second bedroom;

  3. Some water damage in the hallway;

  4. Mould on the balcony and external walls;

  5. Stains and marks on the carpet in the lounge room and hallway; and

  6. Marks on the ceiling and stains on the doors throughout the property. [20]

    20. Exhibit A, Affidavit of Bruce Pursell, at [16]; Exhibit BP-1 at pages 17-22.

  1. On 25 February 2013, the Agent’s property manager, Ms Vanessa Alderton, emailed the Plaintiff and advised that she had emailed the Strata earlier that morning and hoped to have a reply soon so that she could update the Plaintiff. She also asked the Plaintiff if the carpet required extraction of water and cleaning, as she would arrange this as soon as possible. [21]

    21. Exhibit A, Affidavit of Bruce Pursell; Exhibit BP-1 at page 15.

  2. The Plaintiff responded thereafter stating that he would not take up the suggestion until the water ingress had been fixed and the rain had abated. He stated that his own work team was flat out with renovations; otherwise he could have offered to fix the problem. [22] In evidence, the Plaintiff accepted that he declined the opportunity to have the water removed. [23]

    22. Exhibit A, Affidavit of Bruce Pursell; Exhibit BP-1 at page 15.

    23. T 17.34-.42.

  3. For her part, Ms Pursell stated that it was only after mid-February 2013 when she and the Plaintiff moved into the property that it became apparent several things that were not noticed upon inspection, such as the cleanliness of the premises and a broken sky light. There was also mould on the windows in the two bedrooms, and along the small window in the kitchen, with water dribbling down the cupboards from the sky light. [24] Ms Pursell stated that she had not noticed any of these problems on her earlier inspections, as she had just had a brief look and concentrated mostly on the toilet and the bathroom. [25] She stated that she didn’t notice the smell. [26]

    24. Exhibit C, Affidavit of Lydia Pursell at [8].

    25. T 61.45-.49.

    26. T 62.05-.10.

  4. Ms Pursell stated that after living in the property for 5 days it rained, and it was apparent that water was leaking into the property. Water came in from the front side of the apartment through the doors and windows, which faced onto the large balcony. Water also came through the two bedrooms and the living room. [27]

    27. Exhibit C, Affidavit of Lydia Pursell at [9].

  5. Between occupation and early May, the Plaintiff stated that additional issues became apparent in the property, including:

  1. Drummy and loose tiles;

  2. Insufficient fall on the terrace towards the drainage, causing pooling of water;

  3. A damaged shade sail was unusable; and

  4. Cascading rain down the stairs, possibly causing some of the water ingress into the lounge room. [28]

28. Exhibit A, Affidavit of Bruce Pursell at [17].

May 2013

  1. The Plaintiff stated that on or about 6 May 2013, it rained again and the leaks reoccurred. Consequently, there was damage to the carpet in the lounge room and the bedrooms. The Plaintiff thereafter sent an email to the Agent updating them on the issues that he had raised on 23 February 2013, as well as the more recent issues on the roof terrace. He added “All of this not urgent but carpet wet where mentioned.” [29]

    29. Exhibit A, Affidavit of Bruce Pursell at [18]; Exhibit BP-1 at page 23.

  2. The Plaintiff conceded by reference to an email forwarded to the Agent dated 8 May 2013 that a plasterer came to fix the damaged areas. [30] He said that he thought it was the actual builder who sent the plasterer, rather than the body corporate. [31] He also stated that he knew that the Agent had contacted the Strata. [32]

    30. T 19.19-.36.

    31. T 20.21-.25.

    32. T 20.35-.39.

  3. On 8 May 2013 the Agent asked the Plaintiff for further details as to what had been attended to and what had not. The Plaintiff acknowledged, to this extent, the Agent had been proactive. [33] In response, the Plaintiff forwarded an email updating on the state of repairs. [34] It referred to the plasterer having plastered the damaged areas adding that, “The unit is generally fine even though it is sounding like a novel and fixing is becoming negligent.” Referring to outstanding issues it stated:-

    33. T 21.17-.19.

    34. Exhibit A, Affidavit of Bruce Pursell at [18].

Water Dropping from a/c vent in corridor entry (bucket under) ONLY WHEN RAIN FROM SOUTH”

Southern b/r where sliding door opens and eastern window STILL THE SAME

Other southern b/r water trickling down from window STILL THE SAME

All of this not urgent but carpet wet where mentioned BECOMING MORE DAMAGED

…

Water still entering the unit

Plasterer (Mat) doing repair work today without the problem being fixed

2 Next rain water will come in and ruin the work being done now

3 No attempt has been made to fix the water entry point for many years

4 I am not sure the entry points can be pinpointed and fixed

5 We have spoken to Ian who is aware of the problems but with the plastering being done prior to the water entry points

6 Nothing done in the upstairs area but again Ian is aware of the problems being

a Tiles not laid correctly with many drummy and some lose

b North western drain blocked and built at a height that the drain in ineffective to drain the roof area

c Shade damaged

d Rain cascades down stair area which may be a partial cause to the water entering the lounge area. [35]

35. Exhibit A, Affidavit of Bruce Pursell; Exhibit BP-1 at page 25.

  1. The Plaintiff acknowledged an email sent by the Agent on 24 May 2013 requesting a date for inspection involving various parties. [36] He said that the inspection that was suggested for 29 May 2013 at 3:30pm, [37] did in fact take place as far as he knew. [38]

    36. Exhibit A, Affidavit of Bruce Pursell; Exhibit BP-1 at page 27.

    37. Exhibit A, Affidavit of Bruce Pursell at [20]; Exhibit BP-1 at page 27.

    38. T 21.43-.48.

  2. Also on 24 May 2013, the Agent sent an email to Mr Glen Duggan from Strata Professionals, and also to a person described as the “odd job man”, known as Ian. [39] The email sought advice as to when the water leaks would be fixed. The Plaintiff acknowledged that the Agent and the Plaintiff were taking active steps to try and have the leaks fixed. [40]

    39. Exhibit A, Affidavit of Bruce Pursell at [20]; Exhibit BP-1 at page 28.

    40. T 22.23-.25.

  3. The Plaintiff stated that the water ingress was coming around the frames of the doors and the windows which had been incorrectly installed and also through the roof. [41] The Plaintiff said that in early June, the windows were sealed and repainted but no substantive repairs were undertaken. [42] Notwithstanding this, the Plaintiff’s evidence was that the property continued to leak during rain events throughout 2013, and most notably in late June, early July and mid-November. [43]

    41. T 23.17-.46.

    42. Exhibit A, Affidavit of Bruce Pursell at [21].

    43. Exhibit A, Affidavit of Bruce Pursell at [22].

  4. On 27 June 2013 and 11 June 2013, the Plaintiff stated that he notified the Agent of the continuing leak problems. [44] The Plaintiff stated that 2013 was a fairly dry year, [45] with some heavy periods of rain in June and November, which was when the most significant leaks occurred. However, when there was only light rain, water was said to have still come into the property that caused wet carpet, a terrible smell and bubbles in some of the paint work. [46] He stated that there were numerous visits from handymen in late 2013 and early 2014, who tried numerous times to stop the water ingress; however, none of these fixed the problem and the leaks continued each time after it rained. [47]

    44. Exhibit A, Affidavit of Bruce Pursell at [22]; Exhibit BP-1 at page 29.

    45. Exhibit A, Affidavit of Bruce Pursell at [23]; Exhibit BP-1 at page 30.

    46. Exhibit A, Affidavit of Bruce Pursell at [23].

    47. Exhibit A, Affidavit of Bruce Pursell at [24].

  5. On 25 July 2013, the Plaintiff emailed the Agent stating that “Ian is struggling to complete jobs” and that the problem with the sail post “clunking” was “NOW FIXED.” [48]

    48. Exhibit A, Affidavit of Bruce Pursell; Exhibit BP-1 at page 29.

  6. On 11 November 2013, the Plaintiff sent another email to the Agent stating that:-

Water again entered the unit

In the main b/r water running under paint as witnessed by you some time ago

I have marked with SAME OR FIXED

Ian has attempted to repair some problems to no avail

Let’s know if we can help any way but I feel the problems will persist without expert guidance. [49]

49. Exhibit A, Affidavit of Bruce Pursell; Exhibit BP-1 at page 29.

  1. The same day the Agent advised that they were not happy that the Strata had not fixed the problems and were following it up. [50]

    50. Exhibit A, Affidavit of Bruce Pursell; Exhibit BP-1 at page 29.

  2. For her part Ms Pursell stated that over the months that followed their tenancy, each time it rained it got worse. Ms Pursell stated that the area affected depended upon the direction of the rain. She stated that mould started to spread across the window sill in Bedroom 3 and water clearly leaked down behind the paint and started to bubble. [51] Ms Pursell stated that by mid-2013 the damp smell became almost unbearable. The rain was heavier, and the water down the stairs became almost like a waterfall. [52]

    51. Exhibit C, Affidavit of Lydia Pursell at [10].

    52. Exhibit C, Affidavit of Lydia Pursell at [11].

  3. Notwithstanding this, Ms Pursell’s evidence was that they did not consider leaving because the property suited them both. She described this as referable to the fact that the Plaintiff is paraplegic, and the bathroom was big enough for him to get into the toilet and go into the shower. [53] She stated that she used air freshener plug-ins to try and lessen the smell. [54]

    53. T 63.18-.23.

    54. T 62.46-63.06.

February 2014

  1. The Plaintiff stated that by February 2014, the water ingress was so severe that he and his wife were unable to utilise the second and third bedrooms because either the carpet was wet from where the water would come in, or the dank and mouldy smell permeated the rooms beyond use. He stated that they could not close the door in these rooms, nor could they use them for anything. They used their own driers to try and dry the carpet; however, if they attempted to shut the property, the smell would become unbearable. They therefore had to leave doors and windows open to air it out. [55]

    55. Exhibit A, Affidavit of Bruce Pursell at [25].

  2. Ms Pursell added that in February 2014, the water ingress was so bad that she found mushrooms growing in the carpet. The strip of timber holding the carpet down to the floor started to rot, and came away from the wall, such that as soon as she opened the front door she could smell dampness. [56] In cross-examination, Ms Pursell nonetheless conceded that from February 2014 (when she noticed the mushrooms growing), there were people coming to look and trying to fix the things, albeit not succeeding. [57]

    56. Exhibit C, Affidavit of Lydia Pursell at [12].

    57. T 65.04-.13.

  3. Thereafter on 24 February 2014, the Plaintiff wrote an email to the Agent informing her that following the talks with the neighbouring occupier, they were successfully getting their problems fixed, while Ian was a “dead horse”. [58] The Plaintiff reiterated that he had been disadvantaged by the water, in that they were unable to have guests use the southern rooms due to the dank smell. He explained that they had to dry the wet areas continually and they had to curtail the cleaning of the top deck, as the titles had not been waterproofed and consequently water would come into the property. [59]

    58. Exhibit A, Affidavit of Bruce Pursell; Exhibit BP-1 at page 31.

    59. Exhibit A, Affidavit of Bruce Pursell; Exhibit BP-1 at page 31.

  4. This correspondence was forthwith forwarded to the Strata manager.

March 2014

  1. The Plaintiff stated that there was a significant amount of rain on 1 and 2 March 2014. The leaks at that stage were severe, and there were additional problems starting to show, including a fairly major leak in the main bedroom that caused bubbling in the roof paint in the bedroom. While the Plaintiff was away at the time of that rain (as he was on holiday in Queensland) the Agent attended for inspection, and telephoned to advise that there was a new leak. [60]

    60. Exhibit A, Affidavit of Bruce Pursell at [27].

  1. The Plaintiff and his wife immediately returned from Queensland, and stated that the result smell was horrid and there was a lot of water inside and a pooling on the carpet. The furniture then had to be moved to avoid the wet carpet. [61]

    61. Exhibit A, Affidavit of Bruce Pursell at [27].

  2. Ms Pursell stated that in March 2014, she received a call from the Agent advising that there had been a lot of rain and following a check on the property and she found huge bubbles of water trapped behind the bed head in the wall of the master bedroom. [62] Upon returning to the property, Ms Pursell stated that she noticed that there was not only bubbling paint, but also water trickling through the light above the bed.

    62. Exhibit C, Affidavit of Lydia Pursell at [13].

  3. Consequently, the Plaintiff sent an email to the Agent on 3 March 2014. [63] According to the Plaintiff, the Agent regularly advised that the Strata had been contacted and asked to fix the problem. However, after each rain event, he complained to the Agent, and someone invariably came to the property for a day or so to try and fix the leak, but nothing worked. He stated that it was only when he complained about water going into the lights that someone was sent around to fix the leaks that had occurred on 1 and 2 March 2014. [64] Ms Pursell also stated that only when the water came through the light switch did the Agent take action. [65]

    63. Exhibit A, Affidavit of Bruce Pursell; Exhibit BP-1 at page 32.

    64. Exhibit A, Affidavit of Bruce Pursell at [28].

    65. Exhibit C, Affidavit of Lydia Pursell at [14].

  4. The Plaintiff’s email to the Agent of 3 March 2014 stated:-

We have heard nothing from you and as you can imagine much rain came in on the weekend including the bubble viewed by you which had come down to the light switch

All our team are busy doing renovations at present o the builder

The problem is much greater that first imagined as the water is coming through the top deck which may necessitate taking up the tiles

All the issues still exist

Brian who heads the body corporate has said “we have a submission to go the tribunal which I am impressed with”

David and Jackie in 403 have somebody trying to fix the leaks on behalf of the builder

If a repair dollar can be established the cheapest method may be to put a roof over the top deck

Your landlord should be informed as there may be structural faults that to rectify will cost many dollars. [66]

66. Exhibit A, Affidavit of Bruce Pursell; Exhibit BP-1 at page 32.

  1. The Agent, through Ms Alderton, responded that she was under the impression that the Strata/builder was attending to the water leaks in the complex but was trying to ascertain why they had not been attended to like the others.

  2. The Plaintiff’s further email of 3 March 2014 stated:-

We do have a water expert in our team

We have found you have to remove all surface material and apply the water seals and then reapply the surface material

…..

All of the leaks are repairable but expensive and given a free reign we are able to help with this but feel the Landlord has to in consultation with us know which track we recommend and they have to make the decision as to our direction

This would be taken by us gaining a report as to what has to be done which then would be presented to the landlord for his approval

This report would be presented to the builder but would have the life (sic) in consultation with the body corporate as to what course should be taken

1 Builder undertakes to fix things within a time frame

2 Tribunal by the body corporate to make the builder or insurance fix the problems

3 Body corporate undertakes to fix problems

A year has passed with us as the tenant greatly inconvenienced

Who is to recompense for that. [67]

67. Exhibit A, Affidavit of Bruce Pursell; Exhibit BP-1 at page 32.

  1. Ultimately, a builder described as Mr Doug Merrick, came after the rain in March to fix the leak in the main bedroom on the instruction of the Strata. [68] The Plaintiff stated that there was no substantive work done on the major leaks in the other bedrooms, in the living room, or in respect of the issues of water streaming down the stairs from the roof terrace into the living area. [69]

    68. Exhibit A, Affidavit of Bruce Pursell at [30].

    69. Exhibit A, Affidavit of Bruce Pursell at [31].

  2. Ms Pursell stated that following the March 2014 leaks, there was an attempt made to fix the leaks, particularly around the light fitting and the bedroom, and some minor works were done with the door and windows being resealed. She observed that this did not make much of a difference, and possibly led to leaks that arose in other parts of the property. Water also started to leak through the light fitting in the wardrobe and through the front door. This led to her having to use buckets to catch water, but the resulting smell from the numerous leaks was horrendous. [70]

    70. Exhibit C, Affidavit of Lydia Pursell at [15].

  3. Ms Pursell gave evidence that in May 2014, Mr and Ms Constant, together with the Agent, came around to inspect the property. Ms Pursell stated that during one of the conversations, Ms Constant indicated that they put a row of tiles down in front of the window which would save some of the carpet being damaged. [71] She stated that her response was that it would be terrific, and Ms Constant agreed that she would go back and choose some colours to match the carpet. [72] However, she subsequently stated that she did not recall whether the Plaintiff told them that he did not want to do that. [73]

    71. Exhibit C, Affidavit of Lydia Pursell at [16] and T 65.15-.42.

    72. T 65.36-.38.

    73. T 65.40-.42.

  4. The evidence of the Plaintiff was that between April and August 2014, there wasn’t much rain and the water ingress was not as bad. However, the property remained affected as a consequence of the water damage, such as the smell and the mouldy carpet. He stated that the two spare bedrooms were unusable and the living room carpet was significantly damaged, such that guests could not be accommodated. [74]

    74. Exhibit A, Affidavit of Bruce Pursell at [32].

October 2014

  1. On 13 October 2014 Ms Jenny McEwan, property manager of the Agent, emailed the Plaintiff stating that she was having a meeting with someone from the Strata and requested the Plaintiff to compile a list of all the water leaks and the issues. [75] The Plaintiff acknowledged in evidence that the email of 13 October 2014 from Ms McEwan referred to a meeting between one of the Defendant’s directors, described as “Margerite”, and “Kaitlyn” from Strata Professionals on Thursday. [76] The Plaintiff stated that he responded on the same day, referring also to the fact that the only leak that had been effectively fixed in the 20 months of occupation was that by Mr Merrick in March 2014. [77] This appears to be the main bedroom.

    75. T 26.36-.48.

    76. T 26.30-.38.

    77. Exhibit A, Affidavit of Bruce Pursell at [33]; Exhibit BP-1 at page 34-37.

  2. In an email dated 16 October 2014, the Plaintiff provided the details of the issues in respect of the unit. The email included that there were leaks as follows:-

Kitchen

Eastern small widow

Lounge room

leaks from the northern sliding door eastern single door ceiling centre

Bedroom 1

Leaks fixed by Dough (sic)

Hallway

Air conditioner vent leaks

Bedrooms 2 and 3

Leaks form southern side and eastern window

Entry foyer

Southern side of elevator

Top Deck

North western side and North east side water does not flow out the exit pipes

Water flows overside on eastern side

Tiles drummy and no waterproofing underneath [78]

78. Exhibit A, Affidavit of Bruce Pursell; Exhibit BP-1 at page 35.

  1. The Plaintiff described that the work done by “Ian” consisted of him painting over the windows, but not fixing the ingress of water. [79] It was put to the Plaintiff that the owners (the landlord) had been acting on the complaints that he had made, and the Plaintiff’s response was “It doesn’t matter. They didn’t fix it.” [80] The Plaintiff accepted that the Defendant referred the complaints to the Strata on a number of occasions. [81]

    79. T 27.45-.50.

    80. T 28.03-.08.

    81. T 28.14-.16.

  2. The Plaintiff described the dilemma as follows:

WITNESS: Your Honour, the water's coming in. We're inconvenienced. They only looked at it once, they weren't worried about us, nor was the agent. And here we were in water the whole time with a smelly carpet and all the rest of it, and they wouldn't fix it. I offered to fix it for them and they didn't – that didn't even go to the landlord, I don't think. And that's where I became disillusioned with the agent. [82]

82. T 28.47-29.02.

  1. The term of the first tenancy agreement ended in February of 2015. The Plaintiff stated that there were serious water ingress problems, but the thought of having to find a suitable place to move to again after living in the building for 6 years was unappealing due to his specific needs with access. He stated that there were no other apartments available in the building at the time, and he hoped that once the leaks were fixed, they could negotiate a longer lease to avoid moving again. Accordingly, he and his wife remained in occupation of the property and looked at ways to deal with the water ingress by trying to engage with the landlord and the Strata manager to get the leaks fixed. [83]

    83. Exhibit A, Affidavit of Bruce Pursell at [34].

Second Tenancy Agreement

  1. On 17 February 2015, the Plaintiff signed a second tenancy agreement for a period of 6 months. [84] He stated that he only signed ‘a short lease’ with the intention that the Defendant might be inclined to fix the leaks. The rent during the second tenancy agreement remained the same. [85]

    84. Exhibit A, Affidavit of Bruce Pursell; Exhibit BP-1 at pages 38-49.

    85. Exhibit A, Affidavit of Bruce Pursell at [35].

  2. The Plaintiff stated that he knew at the time of entering into the second agreement that there were problems with the unit. [86] However, he did not accept the state of the property when he entered into that agreement. [87] He stated that he expected the landlord to fix the leaks. He stated that he did not ask for a further lease, but was told that the first agreement had expired and the landlord demanded that a new one be entered into. He admitted wanting a longer tenancy, but stated that he did not ask for the second agreement. [88]

    86. T 30.07-.09.

    87. T 30.11-.12.

    88. T 29.40-.45.

  3. He said that the landlord undertook the same conditions in the second agreement, as it did in the first. [89]

    89. T 30.15-.19.

  4. The Plaintiff acknowledged that the rent in the second agreement had not been increased, but stated that $650 was high to begin with and he was happy with the rent because the premises were a penthouse. [90]

    90. T 31.30-.44.

  5. The Plaintiff’s evidence was that the water ingress increased over time, and in addition to the leaks in the two spare bedrooms, there were leaks in the doors in the living room, another leak in the main bedroom, and moisture started to form in the light fitting in the walk in wardrobe. [91]

    91. Exhibit A, Affidavit of Bruce Pursell at [36].

  6. On 3 June 2015, the Plaintiff wrote to the Agent in respect of what was described as “water leaks getting greater in number with a leak near the ensuite door of bedroom 1” and “the light in the closet appearing to be gaining moisture from somewhere being mould has appeared.” The email added “our absence in complaint has been knowledge of the body corporate’s actions and we have for a long time put up with all the leaks.” [92] The Agent passed this on to the Strata manager the same day.

    92. Exhibit A, Affidavit of Bruce Pursell; Exhibit BP-1 at page 50.

  7. There is evidence that the Strata arranged to have a builder Ian Little provide a report. That report dated 13 July 2015 noted a number of defects and recommended that the matter be referred to the builder of the apartment block. [93]

    93. Exhibit 4 Affidavit Jeremy William Brigden; Exhibit JC-1 at page 309.

  8. The Plaintiff acknowledged that his claim for abatement of 80% of the rent was on the basis that 80% of the property was unusable to him. [94] He conceded that this was the case when he entered the second agreement. He stated he made no earlier claim in abatement as the problem was ongoing and until the problem was fixed the claim had not crystallised. [95] He conceded that when he entered into the second agreement, he did not get an inspection certificate. He stated that he would only enter into a lease for 6 months as he thought the landlord would be sick of coming around every 6 months for the lease. [96]

    94. T 42.04-.12.

    95. T 42.29-.44.

    96. T 45.47- 46.04.

  9. When the term of the second agreement ended the Plaintiff wished to stay in the premises, and a third agreement was said to be required. [97] He stated that although the leaks were continuing and were affecting the day to day use of the property, there were numerous considerations against moving. He maintained that based on his experience of the property, all of the issues were fixable and he continued to report issues by complaining to the Agent in the hope that the landlord would attend to leaks so that they could enjoy the use of the property. [98]

    97. T 46.17-.31.

    98. Exhibit A, Affidavit of Bruce Pursell at [37].

Third Tenancy Agreement

  1. The Plaintiff acknowledged that on 7 August 2015, he executed a third tenancy agreement for a fixed term of 12 months at the same rent of $650 per week. [99] In evidence, he had no idea as to why he did not enter an agreement for another 6 months. [100] He added that he thought the landlord had demanded a yearly lease, but he can’t say that for sure. [101] He conceded that at the time he entered into the third tenancy agreement, he was still aware of the problems that he saw with the top deck. [102]

    99. Exhibit A, Affidavit of Bruce Pursell at [38]; Exhibit BP-1 at page 63.

    100. T 46.36-.37.

    101. T 46.39-.40.

    102. T 46.42-.44.

  2. On 18 June 2015 the Agent carried out a routine inspection of the property. On 17 December 2015 the Agent’s property manager Ms Lisa Blanch reported to the Defendant that the property appeared to be well maintained throughout and the tenant seemed quite happy in the property. [103]

    103. Exhibit 3, Affidavit of Lisa Lewis; Exhibit LL-1 at page 6.

  3. In terms of the Plaintiff’s contention that 80% of the property was unusable, he acknowledged that the terrace area was part of that. [104] He stated however, that the spa was usable, the outdoor kitchen was usable, and that he had furniture on the terrace. [105] He added that there was a sail over the area which had leaned, and had on some occasions blown off and blown away, [106] although he acknowledged that the post had been repaired several times. [107] Furthermore, when there was rain a pool ponded, as the outlet was too high. There were also stairs going down to the bottom section that carried rain water down. [108] When it was put to the Plaintiff that he was exaggerating the extent of the problems, he rejected this. [109]

    104. T 43.21-.23.

    105. T 43.31-.41.

    106. T 43.43-.50.

    107. T 44.31-.32.

    108. T 43.48-.50.

    109. T 44.45-45.13.

  4. The Plaintiff stated that in early February 2016 during another rain event, the light in the walk-in wardrobe began to leak. He subsequently sent an email to the Agent on 5 February 2016, stating that he had been most patient with the lack of performance. [110]

    110. Exhibit A, Affidavit of Bruce Pursell; Exhibit BP-1 at page 64.

  5. On 5 February 2016 the Agent sent a repair job order. [111]

    111. Exhibit 3, Affidavit of Lisa Lewis; Exhibit LL-1 at page 64.

  6. When he did not receive a reply, the Plaintiff sent a further email on 9 February 2016, stating:-

IT HAS BEEN 4 DAYS SINCE I GAVE YOU NOTICE OF AN URGENT PROBLEM OF WATER COMING THROUGH THE LIGHT

THIS IS NOW UNACCEPTABLE AND RECEIVE THIS AS A NOTICE OF NEGLECT INCLUDING MY OTHER COMPLAINTS WHICH HAD NOT BEEN ACTED UPON

WE SERVE YOU WITH THIS NOTICE AND WILL CLAIM COMPENSATION FOR THE PERIOD WE HAVE OCCUPIED THE UNIT

WITHOUT THE NEW WATER LEAK BEING FIXED IMMEDIATELY WE WILL VACATE THE UNIT AND CLAIM COMPENSATION. [112]

112. Exhibit A, Affidavit of Bruce Pursell; Exhibit BP-1 at page 64.

  1. Ms McEwan responded shortly after this email, stating:-

Hi Bruce

Just to let you know that I contacted Strata by phone when the leak in the wardrobe was reported to our office. Unfortunately when I sent the work order I have accidentally left out that the water was coming through a downlight. I have rung Strata upon receipt of your email today & advised that this is urgent and resent the email to both Julie & Kathryn at Strata for urgent attention. [113]

113. Exhibit A, Affidavit of Bruce Pursell; Exhibit BP-1 at page 64.

  1. The Agents records show that a further work order was sent out on 9 February 2016. Thereafter an electrician from Brighter Davis Electrical was engaged to fix a flickering bathroom light, and buzzing switch and Doug Merrick by the Strata had been engaged to source and repair the leak in the wardrobe. The records show that these matters were attended to on 1 March 2016. [114]

    114. Exhibit 3, Affidavit of Lisa Lewis; Exhibit LL-1 at page 63.

  2. A report was prepared by the tenants on 19 May 2016 in advance of a routine inspection on 8 June 2016. [115] The report contained references to the leaks to the property, including “the water”, the fact it was “continually wet at entrance to the main ensuite” and the “many water leaks”. Also mentioned was that the sail was bending. The report added:-

”WE HAVE OCCUPIED THIS UNIT FOR MANY YEARS DURING WHICH TIME YOUR AGENCY OR THE LANDLORD HAS FAILED TO ACT

ONLY WHEN THREATENED HAVE TWO LEAKS BEEN FIXED.

WE HAD TO CLEAN THE UNIT AND GET RID OF A COCKROACH INFESTATION WHEN WE STARTED OUR LEASES.

THROUGH YOUR AGENCY NEGLIGENCE WE HAD TO SPEND $90 CLEANING AND COST OF ELECTRICAL. [116]

115. Exhibit 3, Affidavit of Lisa Lewis; Exhibit LL-1 at page 37.

116. Exhibit 3, Affidavit of Lisa Lewis; Exhibit LL-1 at page 37.

  1. Over the weekend of 4 and 5 June 2016, the Plaintiff stated that it rained in Port Macquarie. The rain was extreme and the leaks to the property were the worst it had ever been. The water pooled severely on the carpet in the lounge room and bedrooms, and would splash to walk in. The Plaintiff stated that he and his wife could not move the furniture anywhere because the two guest bedrooms and the living room area were underwater. Photographs were taken showing the extent of the water affecting the use of the property. [117]

    117. Exhibit A, Affidavit of Bruce Pursell at [40]; Exhibit BP-1 at pages 69-127.

  2. On 6 June 2016, the Plaintiff sent an email to the Agent regarding the severity of the water leaks. The email read as follows:-

…

THE WHOLE OF THE NORTHERN END IS FLOODED UP TO 3M IN LENGTH AND SPLASHY TO WALK IN

FURNITURE IS SITING IN WATER AND MAY BE INCURRING DAMAGE

THIS IS NOT STORM AND TEMPEST BUT AN ONGOING PROBLEM THAT YOUR FIRM HAS BEEN NEGLIGENT IN NOT BEING ABLE TO FIX

THIS UNIT HAD THE DEFECTS PRIOR TO US RENTING OF WHICH WE WERE NOT MADE AWARE

WE HAVE NOTIFIED YOUR FIRM THE WHOLE PERIOD WITH EMAILS AS WATER COMES IN EVERY TIME IT RAINS

WE WISH THAT THE WATER BE SUCKED OUT AND THE CARPET DRIED NO LATER THAN TODAY

FURNITURE WILL HAVE TO BE MOVED AND DAMAGE EVALUATED

WHEN THE PROBLEM IS FIXED AND NO MORE WATER IS EXPECTED WE WILL DISCUSS OUR LEASE WITH YOU AS TO THE VIOLATIONS THAT HAVE OCCURRED DURING OUR WHOLE PERIOD OF OCCUPANCY [118]

118. Exhibit A, Affidavit of Bruce Pursell; Exhibit BP-1, page 131.

  1. To this email, Ms Blanch of the Agent, responded on 6 June 2016 stating:-

Thank you for letting me know.

As mentioned previously this is a Strata responsibility and we have sent this through to them every time.

It is not correct saying that we are negligent. We have done our best to get this rectified. It is strata that are to arrange the repairs and tradesmen

In regards to your furniture getting wet etc. – do you have contents insurance? This may need to be claimed on your insurance.

I will send this to Strata now and call them to ensure they have received this. I will let them know about Stanley Steamer being able to do this today. [119]

119. Exhibit A, Affidavit of Bruce Pursell; Exhibit BP-1 at page 130.

  1. In response to that email, the Plaintiff sent the following email:-

We do not have a contract with the landlord only you

We are not beholden to the body corporate

We are proceeding with the repair with Stanley as authorised by Jenny

We stress that without substantial work the unit will be flooded next time it rains

We are holding you responsible for our furniture and further inconveniences we will incur in the repair. [120]

120. Exhibit A, Affidavit of Bruce Pursell; Exhibit BP-1 at page 130.

  1. Ms Blanch then attended the property to inspect the damage and to take photos. [121] On 8 June 2016, the Agent advised the Plaintiff of the arrangements that were being made to repair the property and stated that the landlord would negotiate a rent reduction after the work was complete. [122]

    121. Exhibit A, Affidavit of Bruce Pursell at [42]-[43].

    122. Exhibit A, Affidavit of Bruce Pursell at [44]; Exhibit BP-1 at page 132.

  2. Around this time, Mr Merrick was instructed to complete rectification work, which was carried out while the Plaintiff and his wife continued to live in the property. The Plaintiff indicated that there was some disruption to his lifestyle while these repairs were being undertaken. [123] He stated that he observed Mr Merrick do various jobs, including replacing windows and doors, which took about 10 weeks. [124] A shade sail on the roof was removed in August 2016, leaving the furniture exposed. [125]

    123. Exhibit A, Affidavit of Bruce Pursell at [45].

    124. Exhibit A, Affidavit of Bruce Pursell at [46].

    125. Exhibit A, Affidavit of Bruce Pursell at [47].

  3. Ms Pursell’s account was that in June 2016, there was a major rain event in Port Macquarie which resulted in the property being flooded. All furniture had been moved into the middle of the room, and the bed had been moved out of the master bedroom and put right next to the kitchen bench. The Plaintiff and her slept there for several days because the bedroom was flooded. She stated that the bedrooms were back to being unusable, with soggy carpet and mould around the windows. [126]

    126. Exhibit C, Affidavit of Lydia Pursell at [17].

  4. Ms Pursell stated that the Agent arranged for repairs to be done, and the carpet was lifted and commercial dryers used to dry out the remaining areas. Use of the property was restricted to the kitchen and a small area in the dining room. [127] All up, the rectification works took around 4 months to finish, and during this time she stated that the Plaintiff and her moved around the house to suit the builders. [128]

    127. Exhibit C, Affidavit of Lydia Pursell at [18].

    128. Exhibit C, Affidavit of Lydia Pursell at [19].

  5. So far as the roof terrace was concerned, Ms Pursell stated that although this was considered to be an asset to the property, it was virtually unusable during the period that they lived there, as water pooled around the terrace to the extent that it would splash when stepped in. The shade sail also flapped dangerously at just the slightest breeze. Ms Pursell stated that it was impossible to clean the terrace because water ran down the stairs and leaked in the living room. She stated that the whole terrace area seemed to be a series of hazards and they felt unable to use that space safely, particularly with the Plaintiff being in a wheel chair. [129]

    129. Exhibit C, Affidavit of Lydia Pursell at [21]-[22].

  6. In cross-examination, Ms Pursell accepted that on days when there was strong winds, the terrace area was able to be used now or then, other than when there was water ponding. She accepted that water ponding occurred only after rain events, and she would normally sweep it down the drain to move it. [130]

    130. T 64.09-.32.

  7. Ms Pursell stated that although use of the property was constantly affected by leaks and the smell, and inability to use the roof terrace, both her and the Plaintiff remained in the property as they were hopeful that the landlord would rectify the problems so that they could settle there long term. She acknowledged that efforts were taken during the time that they were there, and that it was difficult to find a place that suited all their specific needs. She stated that the relevant unit was perfect for both of them to use, and that there were not many apartments in Port Macquarie that could cater for the Plaintiff’s disability. [131]

    131. T 67.18-.24.

Plaintiff’s Claim

  1. The Plaintiff admitted that he had informed the Agent of the claim that he was making for $17,443.00. [132] This had been communicated to the Agent according to their file notes, on 31 August 2016. [133]

    132. T 55.01-.35.

    133. Exhibit 3, Affidavit of Lisa Lewis; Exhibit LL-1 at page 53.

  2. The Plaintiff stated that in October 2016, the carpets were replaced and at that stage it was noticed that the floor was extremely mouldy and had rotted. [134] Repairs were finalised on 28 October 2016. [135]

    134. Exhibit A, Affidavit of Bruce Pursell at [49].

    135. Exhibit A, Affidavit of Bruce Pursell at [50].

  3. By that time, the term of the Plaintiff’s tenancy agreement had expired and he and his wife continued to reside at the premises on a month to month basis. [136]

    136. T 53.04-.05.

  4. The Plaintiff acknowledged that he attended a meeting with Mr Constant on 26 October 2016, but stated that he did not ask the Agent to attend because he was concerned that the problems that had arisen were at least in part due to the Agent’s responsibility. He rejected the version of events that Mr Constant reported and stated that the conversation was amicable, and he indicated to Mr Constant that he wanted to claim compensation for the time that he was living in the premises. He rejected the suggestion that Mr Constant had told him that he did not think that he had a claim. He stated that he did invite him to make an offer, which he did to no avail. [137]

    137. Exhibit B, Affidavit of Bruce Pursell at [7]-[8].

  5. In cross-examination, the Plaintiff agreed that at that meeting he indicated that he would be making a claim, and the reason the meeting was held was to try and get a settlement. [138] He stated that he did not think the Agent was doing his job and he thought that if he spoke to the landlord that they could get somewhere. [139]

    138. T 53.28-.41.

    139. T 54.16-.21.

  6. The Plaintiff conceded that he is now making a claim for $107,000, stating that he had done a lot of research since the initial offer. [140]

    140. T 55.37-56.04.

Notice to Vacate

  1. On 7 November 2016, the Plaintiff received a notice to vacate the premises by 7 February 2017. [141] The Plaintiff subsequently decided to move to another unit and on 1 December 2016 emailed a notice of termination effective on 19 January 2017. [142]

    141. Exhibit A, Affidavit of Bruce Pursell at [51]; Exhibit BP-1 at page 133.

    142. Exhibit A, Affidavit of Bruce Pursell at [52]; Exhibit BP-1 at page 134.

  2. The Plaintiff stated that he was not able to make a claim for compensation or abatement until the rectification works had been completed, as that was the only time when the extent of the loss was crystallised. [143]

    143. Exhibit B, Affidavit of Bruce Pursell at [5].

  3. The Plaintiff denied that he had waited until that time to make a claim because he wanted it to be bigger. [144] He further conceded that he made an initial claim to NCAT, however the person hearing the matter stated that he could only award up to $15,000. [145] He denied that he withdrew his claim because he was restricted by the Residential Tenancies Act 2010 (NSW) (the 2010 Act), which limits claims to those made within 90 days of the breach. [146]

    144. T 56.06-.09.

    145. T 56.27-.31.

    146. T 56.33-.46.

  4. In an email recorded by the Agent, the Plaintiff is stated to have claimed on 31 August 2016:-

Under a tribunal hearing we would ask for a refund of 50% of the rent paid commencing on the 18/2/13 and 100% after 4/6/16 By way of compromise we ask for a refund of $50 per week commencing 18/2/13 to 4/6/16 and $600 per week there after till the work is complete Again by way of compromise we will take the refund over a period of a further year of occupying the unit at $650 per week Summarising 18/2/13 to 2/6/16 171 weeks x $50 = $8550 3/6/16 1 day 7 4/6/16 to 3/9/16 13 weeks x $ 600=$7800 Total $16357 Further year being 52 weeks @ $650 = $33800 Less refund $16357 balance to pay $17443. We see this as a breach of contract that you have enacted with us and feel we are being more that fair in our assessment [147]

147. Exhibit 3, Affidavit of Lisa Lewis; Exhibit LL-1 at page 53.

  1. The Plaintiff stated this was based on the fact that he had resided at the subject premises for 207 weeks at a weekly rent of $650.00 for the whole period. He stated that throughout the tenancy, other than for the first few days, there were multiple leaks which inhibited his use and enjoyment of the property. Repeated requests were made to rectify the leaks, but nothing substantive or effective was done until June 2016. On the Plaintiff’s calculation, 80% of the use of the property was lost as a result of the leaks, including the roof terrace which was unusable, three bedrooms, most of the living areas, and enjoyment of the property generally due to the permeating smell. [148]

    148. Exhibit A, Affidavit of Bruce Pursell at [53]-[58].

  2. In an affidavit sworn on 13 March 2019, the Plaintiff stated that despite the fact there were numerous issues with water ingress and ongoing maintenance problems, he was keen to negotiate a long term lease so that he didn’t have to move and make necessary adaptations to another property in light of his disability. He was constantly expecting the landlord to rectify the problems whenever he reported them, but this did not occur until he had been in occupation for 3 years. [149]

    149. Exhibit B, Affidavit of Bruce Pursell at [4].

  3. The Plaintiff maintained that he did not believe that the landlord could have justifiably increased the rent above what he was paying, particularly when the property was suffering from extreme problems. [150]

Defendant’s Case

150. Exhibit B, Affidavit of Bruce Pursell at [13].

Water Penetration Noticed by the Defendant

  1. Ms Constant indicated that when the Defendant purchased the unit, it had already been tenanted. She indicated that she did not know how long the previous tenant had been in the premises before the Plaintiff, [151] but did state that the previous tenants had been retrenched. After they moved out she noticed some water around the window, and she arranged a meeting with the Strata manager, herself, John Constant and the Agent. [152] Ms Constant stated that there were a number of managers over the period since the beginning of the occupancy of the building, and there were problems in having them attend to various works from the start. [153] She stated that they were not attending to making sure the Owners Corporation undertook the works required to rectify the common property. [154]

    151. T 111.15-.27.

    152. T 101.29-.37.

    153. T 105.39-.46.

    154. T 106.01-.03.

  2. Mr Constant also acknowledged that the unit at 401 had water penetration issues. [155] He stated that the builder was bankrupt, and the Owners Corporation pursued the builder in an action for damages, but he was not aware of any damages being recovered at any time. [156] Mr Constant stated that he did not know whether any rectification works had been done by the builder. [157]

    155. T 79.35-.36.

    156. T 80.19-.37.

    157. T 80.39-.40.

Interaction with Strata

  1. Ms Constant stated that she was the one who predominately instructed the Agent when instructions were sought to proceed with repair works if they required approval for expenditure to engage tradesmen. She indicated some (if not the majority) of the issues were issues that were not able to be fixed by the Defendant because they related to Strata or common property. These were notified by the Agent to the Strata, and she also sought to apply pressure to the Strata to fix the issues with the common property. [158]

    158. Exhibit 1, Affidavit of Marguerite Constant at [7].

  2. Mr Constant agreed that most of the liaising was done with his wife Margerite, who dealt with the Agent and the Owners Corporation. [159] He said that he relied on the Agent to organise the various repairs. [160] Although he was not clear on the dates, Mr Constant was aware that rectification works were undertaken on a regular basis to try and alleviate the problems at the unit. [161]

    159. T 80.47-81.05.

    160. T 82.21-.23.

    161. T 80.42-.46.

  3. Ms Constant stated that the primary common property issue was the lack of adequate drainage of water, which resulted in water ingress to the unit during major rain events. [162]

    162. T 104.37-.40.

  4. In cross-examination, Ms Constant indicated that she was the one who was primarily involved in liaising in respect of the unit. [163] She noted that although she was not a member of the Strata Executive, she would attend meetings and would become involved in the discussion. [164] She indicated that Strata managers were slow in dealing with issues of water proofing. This was because the Strata Executive did not want to spend too much money. She stated that the Strata had attempted to pursue the builder of the apartments, but with no avail. [165]

    163. T 98.40-.45; T 99.06-.26.

    164. T 99.33-.36.

    165. T 100.15-.17.

  5. Mr Constant stated that he remembered that in November 2013 there was a motion tabled and a general meeting at the Owners Corporation regarding building defects, and there was a work order issued to test the water entering the garage of the unit. [166] He also recalled a discussion with Fair Trading to look at outstanding defects on the property. [167]

    166. T 82.39-.43.

    167. T 82.45-.47.

  6. Mr Constant stated that during the time the complaints were being made, he contacted the Agent to endeavour to get the Strata to fix the problems, but not for the Agent to do this. [168] He stated that he contacted the Owners Corporation on numerous occasions seeking that they attend the water penetration issues, but he couldn’t provide an exact figure. [169] He stated the complaints were raised at executive meetings, including in relation to unit 401. He stated that it was raised at every meeting that he attended. [170]

    168. T 83.35-.39.

    169. T 83.41-.44.

    170. T 83.46-.84.10.

  7. Mr Constant acknowledged the frustration with the Owners Corporation as growing from at least late 2013, [171] and that the water penetration was a significant issue that the Owners Corporation had not attended to when they were obliged to. He stated that the Owners Corporation were endeavouring to do it, but were trying to chase down the “owner”. [172] According to Mr Constant, the Owners Corporation wouldn’t accept the fact that it had to do the repairs and there was no use chasing the builder. [173] He stated that the circumstances were such that a special levy needed to be raised. [174] He rejected the suggestion that he did not want a special levy raised. [175]

    171. T 84.12-.20.

    172. T 86.07-.09.

    173. T 86.29-.32.

    174. T 86.34-.37.

    175. T 86.48-87.04.

  8. Mr Constant acknowledged that every year the Defendant had raised the issue of water penetration in unit 401 at the annual meeting. [176] He acknowledged that a letter was written on 26 June 2015 but couldn’t say whether further correspondence was sent at another time. [177] Mr Constant rejected the suggestion that he did not badger and harass the Owners Corporation. [178]

    176. T 87.20-.24.

    177. T 87.10-.27.

    178. T 88.17-.21.

  9. Ms Constant conceded that sometime in October 2014 she had a meeting with “Kaitlyn” from Strata management, and asked her to ask the tenant to compile a list of all the water leaks and problems with the property. [179]

    179. T 111.01-111.05.

  10. Ms Constant conceded that there were complaints about works being undertaken on the common property by the Owners Corporation. [180] She did not recall whether or not there was a motion tabled by her or on her behalf, for rectification works. [181] She stated that she did write a letter to the body corporate about the water ingress problems in June 2015; although she indicated that she did not have a copy of that letter due to a crash with her personal computer. [182] She stated that she did not understand what it meant by putting a special resolution forward. [183]

    180. T 107.36-.38.

    181. T 107.44-.108.04.

    182. T 98.30-.38.

    183. T 109.11-109.15.

  11. Ms Constant’s frustration with the Strata manager was evident in an email she sent to Ms Blanch dated 25 February 2016, [184] and another email dated 28 April 2016, [185] complaining as to a lack of action on the part of the Executive Committee.

    184. Exhibit 3, Affidavit of Lisa Lewis; Exhibit LL-1 at page 83.

    185. Exhibit 3, Affidavit of Lisa Lewis; Exhibit LL-1 at page 97.

  12. She stated that she observed flooding to the property on 7 June 2016, and received all instruction reports from the Agent. This, to her knowledge, was the only significant issue with the property throughout the entire duration of the tenancy. [186]

    186. Exhibit 1, Affidavit of Marguerite Constant at [7]-[9].

  13. Mr Constant accepted that the rectification work was not successfully carried out until after the storm events of June 2016. [187] He stated that the money eventually came forward through the raising of a special levy. [188] In evidence, Ms Constant indicated that the body corporate did try and send in people to do small jobs, and in relation to the water penetration issue, they brought someone in to do a full inspection who wrote a report. [189]

    187. T 88.23-.24.

    188. T 88.30-.34.

    189. T 107.27-.34.

  14. Ms Constant stated that she was paying the Strata manager, and that she was paying the property manager, and she didn’t believe that it was her role to interfere with the Strata. [190] She acknowledged that she did not instruct the Strata manager to bring an application to the Consumer Trading and Tenancy Tribunal (CTTT), or the New South Wales Civil and Administrative Tribunal (NCAT), nor did she instruct the property manager to do this. [191]

    190. T 109.30-.34.

    191. T 109.21-.46.

  15. Mr Constant gave evidence that back in 2013, the rent of $650.00 per week was high, but not the highest in the building. [192] For her part Ms Constant stated that the amount of rent paid was average, and she acknowledged that she did not increase it over the tenancy. [193] She accepted that she saw condition reports over the period of the Plaintiff’s occupation, and instructed the Agent to attend to what needed doing, but was advised that the tenants did not want anything done because no carpets needed to be replaced. [194]

    192. T 79.26-.28.

    193. T 110.17-.32.

    194. T 110.45-.50.

Claim

  1. Mr Constant admitted that at the time, he was prepared to offset a rent reduction considered reasonable. He stated he didn’t know when this was. [195] For her part Ms Constant indicated that she informed Ms Pursell that the owner would be happy to negotiate rent reduction during the period of the rectification work. [196]

    195. T 92.45-.93.03.

    196. T 112.07-.10.

  2. Mr Constant stated that there was one occasion when he spoke directly to tenant in relation to the tenancy. This was in late 2016, when the tenant was claiming compensation on the basis that the property was unusable. Mr Constant stated that he felt this was surprising given that two new leases had been signed. [197] He stated that he was aware that the tenants wanted to make a claim for abatement of rent, but he was not aware until October 2016 that the Plaintiff was claiming for most of the rent that had been paid over the past 4 years. [198]

    197. Exhibit 2, Affidavit of John Desmond Constant at [5].

    198. Exhibit 2, Affidavit of John Desmond Constant at [6].

  1. The evidence of Ms Blanch to the effect of what happened in June 2016 was that the balcony doors and windows could not cope with the amount of water leading to the penetration of the lounge and master bedroom. The overall impression I have is that the landlord did, through the Agent, follow up all requests for repairs with the Strata manager the repairs undertaken were ineffective and new complaints of water ingress arose. Problems that did arise were also not confined to the property in question.

  2. Nevertheless, whilst I accept that parts of the property were from time to time unable to be used, particularly because of the water ingress and smell, I would not accept that this was consistently the case and of the same intensity throughout the period of the tenancy.

  3. In respect of the drainage on the terrace area and the sail post, this matter whilst not particularised specifically as a breach of clause 18.3 of the lease,[268] it was as noted earlier mentioned in the Plaintiff’s Reply. [269]

    268. Statement of Claim at [5].

    269. Plaintiff’s Amended Reply at [2].

  4. The problems with the terrace area were not mentioned in the condition report of 18 February 2013. [270] The Plaintiff’s email response of 6 May 2013 did refer to “north western drain blocked and built at a height that the drain in ineffective to drain the roof area,” “shade damaged” and “rain cascades down stair area which may be a partial cause to the water entering the lounge area.” [271] That was reiterated in an email of 8 May 2013. As noted earlier, there was email correspondence to the Strata about the sail corner post “creating a loud banging noise when windy.” On 4 October 2013 there was an email to the Plaintiff from the Agent informing him of the report and advising “if you do not hear from anyone in the next couple of days Bruce please let us know so we can follow it up”. [272] There was no recorded tenant communication relating to the matter thereafter until 24 February 2014, where the Plaintiff is stated to have advised the Defendant’s Agent “we at all times have to curtail our cleaning of the top deck as the tiles have not been waterproofed and consequently water comes through.” [273]

    270. Exhibit 3, Affidavit of Lisa Lewis; Exhibit LL-1 at pages 22-27.

    271. Exhibit A, Affidavit of Bruce Pursell; Exhibit BP-1 at page 24.

    272. Exhibit 3, Affidavit of Lisa Lewis; Exhibit LL-1 at page 43.

    273. Exhibit 3, Affidavit of Lisa Lewis; Exhibit LL-1 at page 44.

  5. The Strata minutes confirm that a quote to repair the damaged shade sail for Unit 404 (another unit) was approved on 20 June 2014 at a cost of $2,200. The minutes record that the contractor was to be requested to use heavier gauge cable to reduce the possibility of further damage occurring in the future. [274] Also resolved was the provision of heightened anchor posts for the shade sails on level 4 in order to achieve greater tension. [275]

    274. Exhibit 4, Affidavit of Jeremy William Bridgen; Exhibit JB-1 at page 93.

    275. Exhibit 4, Affidavit of Jeremy William Bridgen; Exhibit JB-1 at page 94.

  6. On 16 October 2014 the Plaintiff’s email stated “North western side and North east side water does not flow out the exit pipes“ and “Water flows over side on eastern side.” [276] On 13 October 2014 the Plaintiff’s email reiterated, “We at all times have to curtail our cleaning of the top deck as the tiles have not been waterproofed and consequently water comes through.” [277] The routine inspection report of 1 December 2014 refers to the roof top terrace as well presented. [278] There was no mention of any issues in the report of 15 December 2015. On 3 November 2015 the tenant report refers to there being no “obstructions to the property which could be dangerous.” [279] The tenant report of 19 May 2016 refers to the “pole holding the sail bending.” [280]

    276. Exhibit A, Affidavit of Bruce Pursell; Exhibit BP-1 at page 35.

    277. Exhibit A, Affidavit of Bruce Pursell; Exhibit BP-1 at page 36.

    278. Exhibit 3, Affidavit of Lisa Lewis; Exhibit LL-1 at page 30.

    279. Exhibit 3, Affidavit of Lisa Lewis; Exhibit LL-1 at page 33.

    280. Exhibit 3, Affidavit of Lisa Lewis; Exhibit LL-1 at page 37.

  7. On 26 October 2016 there is evidence that Port Plumbing was commissioned to clean out the roof top deck drains including on unit 401. The relevant invoice noted that they were not able to widen all drain openings due to the offset of the outlet and the level of the water proofing. [281] To the extent that these matters needed attention, it can be accepted that this would be in conjunction with the other matters that needed attention by the Strata.

    281. Exhibit 4, Affidavit of Jeremy William Bridgen; Exhibit JB-1 at page 342-3.

  8. Both the Plaintiff and Ms Pursell gave evidence as to the lack of useability of the terrace area; however the Plaintiff admitted that the spa was usable, the outdoor kitchen was usable, and he had furniture on the terrace. The Plaintiff also acknowledged that the post had been repaired several times and the shade sail was eventually removed in August 2016. [282] It was put to the Plaintiff that he was exaggerating the extent of the problems, he rejected this.

    282. T 43.31-44.32.

  9. In cross-examination, Ms Pursell accepted that other than on days when there was strong winds, the terrace area was able to be used now or then, other than when there was water ponding. She accepted that water ponding occurred only after rain events, and she would normally sweep it down the drain to move it, [283] although she also stated that it was impossible to clean the terrace because water ran down the stairs and leaked in the living room. The problem with water ponding appeared to arise from the placement of the water outlet. [284]

    283. T 64.09-.32.

    284. The Plaintiff suggested lowering the drainage exit. See Exhibit A, Affidavit of Bruce Pursell; Exhibit BP-1 at page 25.

  10. Overall, I am of the view that whilst there were issues with the terrace area I do not accept that the area has been totally unusable or that the issues arose with the frequency that was asserted.

  11. The Owners Corporation itself was seeking to clarify the defects that needed repairing in respect of the whole building by seeking information and obtaining an independent report in 2014 from RHM consultants. There is evidence that suggests that that report was received on or around 12 June 2015 and was some 456 pages in length, and stated that many of the defects related to waterproofing and tiling. [285] Its contents were not in evidence. [286] However, it can be established that a list of defects dated 6 February 2016 was sent to the lot owners with the agenda on 19 February 2016. [287]

    285. Exhibit 4, Affidavit of Jeremy William Bridgen; Exhibit JB-1 at page 240 at [3]-[6].

    286. There is an extensive list of defects which it appears that the builder was commented on to Fair Trading in 2014. See Exhibit 4, Affidavit of Jeremy William Bridgen; Exhibit JB-1 at pages 250-252.

    287. Exhibit 4, Affidavit of Jeremy William Bridgen; Exhibit JB-1 at pages 124-125.

  12. At the Annual General Meeting held on 26 June 2015, the Owners Corporation resolved to obtain a prioritised defects rectification costs estimate schedule from RHM consultants. Once this was obtained, it was to be referred to the Executive Committee for review and as a guide in the possible event the Owners Corporation undertook at its cost, common property defects remedial work. Whilst the Executive Committee resolved in September 2015 to pursue legal action, this course was discontinued on 19 February 2016. Instead, it was resolved to proceed with the priority list of repairs after the EGM on 1 April 2016.

  13. The Plaintiff’s argument that the Defendant had available to it a number of simple steps which could have forced the cooperation of the Owners Corporation to undertake remedial work presupposes that those steps would have accelerated the process of repairs

  14. The Plaintiff identified in its Reply that the defects in the property included but were not limited to:-

  1. Leaking doors and windows in the three bedrooms and living rooms; and

  2. No apparent waterproofing on the outside terrace area; and

  3. Insufficient fall in the terrace area tiling, which caused water to pool and rendered the terrace area useable. [288]

    288. Plaintiff’s Amended Reply at [2].

  1. The evidence of Strata Professionals indicates that there were widespread issues relating to water penetration in the building extending beyond the subject property.

  2. To an extent, the Strata was seeking to identify the extent and nature of the problem before determining how to address the issue. Its own actions, however, were clearly left open and were prepared on the basis that it might have to bear the cost itself. The ultimate course it took, which involved the institution of a special levy and prioritisation of works, was not the subject of any criticism.

  3. In Northern Sandblasting Pty Ltd v Harris,[289] Gummow J held:-

In general, there is no breach on an express covenant by a landlord to keep the demised premises in repair unless two criteria have been met. First, the landlord must have information as to the existence of the defect such as would put a reasonable landlord on inquiry as to whether works of repair are needed and, secondly, thereafter the landlord must have failed to carry out the necessary works with reasonable expedition. But, as Cussen J pointed out, this is a rule of construction to be considered with the text of the particular lease, not a rule of law.

289. (1997) 188 CLR 313; (1997) 146 ALR 572 at 612.

  1. I accept that in this instance the Defendant was on notice as to the existence of circumstances that would put it on enquiry as to whether works of repair were needed. The question that arises is whether the landlord thereafter failed to ensure that the necessary repairs were carried out with reasonable expedition. The fact that repairs were undertaken that did not resolve the issues does not equate with the Defendant undertaking the “necessary repairs.”

  2. Nor am I satisfied that in carrying out the repairs after June 2016 they were carried out with reasonable expedition.

  3. I accept that from at least late 2013, [290] water penetration was a significant issue that the Owners Corporation had not attended to when they were obliged to. I accept that the Agent was tasked with reporting matters to the Strata Manager however the minutes of the Strata Executive showed an approach to attending to the issue that was not reflective of reasonable expedition. The Defendant conceded as much.

    290. T 84.12-.20.

  4. Ms Constant conceded that there were complaints about works being undertaken on the common property by the Owners Corporation. [291] She did not recall whether or not there was a motion tabled by her or on her behalf, for rectification works. [292] She stated that she did write a letter to the body corporate about the water ingress problems in June 2015, although she indicated that she did not have a copy of that letter, due to a crash with her personal computer. [293] That letter was acknowledged in the Strata minutes Ms Constant stated that she did not understand what it meant by putting a special resolution forward. [294]

    291. T 107.36-.38.

    292. T 107.44-.108.04.

    293. T 98.30-.38.

    294. T 109.11-109.15.

  5. Ms Constant’s frustration with the Strata manager was subsequently acknowledged in an email she sent to Ms Blanch dated 25 February 2016, [295] and another email dated 28 April 2016, [296] complaining as to a lack of action on the part of the Executive Committee. However, apart from the letter to the Strata in June 2015, no documented effort to coerce the Strata in attending to the necessary repairs is apparent

    295. Exhibit 3, Affidavit of Lisa Lewis; Exhibit LL-1 at page 83.

    296. Exhibit 3, Affidavit of Lisa Lewis; Exhibit LL-1 at page 97.

  6. Ms Constant readily conceded that the Strata had delayed attending to the issues that required attention on its part accepting that she wasn’t aware of any capacity to bring proceedings against the Strata in either the CTTT or the NCAT or to initiate a special resolution.

Damages

  1. I accept the issue of repairs was complex and some investigation of the issue by the Strata would have been reasonable. However, I also accept Ms Constant’s evidence that the Strata executive were seeking to avoid charging a special levy and prolonging the matter. Overall, I am of the view that at least by October 2014 the landlord should have taken further action as proposed by the Plaintiff rather than just correspond with the Agent and Strata. In these circumstances I am satisfied that the matter should have been escalated and at least brought to the Tribunal.

  2. With regard to assessing the compensatory damages, the Plaintiff asserted that the failure to repair led to a loss of useability from the inception of the tenancy for a duration of 207 weeks. The period from 13 February 2013 to 19 January 2017 is actually 205 weeks.

  3. During that period there were significant periods where the Agents records show an absence of complaints following repairs undertaken and the complaints that arose varied in their content. The Plaintiff’s claim based on 80% of the area not being useable included the outdoor terrace. However the evidence of Ms Pursell in particular does not support that that the terrace was not useable in its entirety at all times. The intensity of the problems varied from time to time it being significantly greater after the storm of June 2016. Beyond this, the point at which the Plaintiff would have breached its obligation would have been at the time that it failed to take a more proactive approach such as pursuit of a special resolution or commencing the proceeding under s 140 of the 1996 Act.

  4. I do not accept that the property was uninhabitable to the extent the Plaintiff asserted. Even accepting the Plaintiff’s desire not to relocate for reasons connected with his disability, it is inconceivable that persons in such claimed circumstances asserted would have continued to reside in the subject property for the length of time in question renewing the tenancy on two subsequent occasions. Contrary to the Plaintiff’s submission, the extent of loss of use asserted was challenged by the Defendant. [297]

    297. See T 43.21-45.16; 62.43-65.2.and T 55.37-56.49. Also see Exhibit 3, Affidavit of Lisa Lewis at [19] (not subject to cross-examination).

  5. In its Amended Defence the Defendant asserted that there had been a failure of the part of the Plaintiff to mitigate his loss. Despite the content of that pleading, the only matter put to the Plaintiff was in respect of his failure to move out. [298] It was put to Ms Pursell that in May the Plaintiff had declined to accept a row of tiles to prevent water ingress. She did not concede this and no other evidence has been pointed to support this. The failure to accept the replacing of carpet was not pleaded as a failure to mitigate. I do not accept that a failure to move out or the renewal of the tenancy constituted a failure to mitigate in light of the obligation squarely placed on the landlord by clause 18.3.

    298. T 51.6-.18.

  6. In assessing compensatory damages payable, the Court in these circumstances can only do its best. I accept that from time to time the property was adversely affected, particularly 3 June 2016 to 28 October 2016 following the major storm that resulted in the lounge room and the master bedroom being unusable. This was a period of 21 weeks. For this period I would have allowed a sum of $5,500 based on a 40% loss of use. In respect of the balance of the period I would allow a figure of $6,400, which I acknowledge involves some estimation as to precisely when it would have been asserted that the claim should have been escalated,[299] but is also reflective of the extent of loss of use found by me.

    299. See [216].

  7. My calculation of compensatory damages payable totals $11,900.

  8. These circumstance lead to the potential application of s 208 of the 2010 Act. I accept, however, that the parties may wish to confer and reach an agreement as to costs, or in the event of disagreement, make submissions. An opportunity in either event should be afforded to do so.

ORDERS

  1. For these reasons, I defer entry of final orders pending the following:

  1. I direct the parties to confer with a view to reach an agreement as to final orders, including costs and any interest claim, within fourteen (14) days by filing consent orders in the registry consistent with these reasons.

  2. In default of agreement pursuant to order (1), the parties are to approach my Associate within the same fourteen days with a view of relisting the matter before me for any argument as to final orders as indicated.

  3. In the case that (2) applies, each party is to submit proposed draft orders to my Associate within the time specified therein.

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Endnotes

Decision last updated: 21 October 2020

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Cases Citing This Decision

3

Winter v Delacy (Residential Tenancies) [2023] ACAT 31
Kwok v Natarajan [2025] NSWCATCD 80
Pursell v Eversham Close Pty Ltd (No 2) [2020] NSWDC 373