Rosenthal v The Owners - SP 20211 - [2017] NSWCATCD 80

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Rosenthal v The Owners - SP 20211 [2017] NSWCATCD 80
Hearing dates: 26 June 2017
Decision date: 29 August 2017
Jurisdiction: Consumer and Commercial Division
Before: Jeffery Smith, Senior Member
Decision:
1. The respondent shall immediately take all steps to further investigate as necessary and to correct all sources of water ingress to lot 64 and in particular shall carry out the following work in addition to any other that is found necessary to achieve compliance with these orders;
(1) Replace entire waterproof membrane on level 20.
(2) Correct weep holes to brick cavity wall to main bedroom, correct as necessary flashing in brick cavity wall to main bedroom and investigate and correct as necessary water ingress from downpipe within column to south end of main bedroom.
(3) Waterproof the window hob to second bedroom, install or correct as necessary the flashing and weep holes to the wall between the second bedroom and study and perform all other steps necessary to correct the ingress of water to the second bedroom and study.
(4) In regard to the bedroom on level 20, install water-stop at top of hob, install or correct as necessary the flashing to the east of the window suite, correct as necessary failed end-stops at the end of the sub-sills and failed mitre joints.
2. The respondent shall immediately take all steps to replace the fire rated front door to lot 64.
3. All work referred to in orders 1 and 2 shall be completed on or before 22 November 2017.
4. The respondent, The Owners-Strata Plan 20211, shall pay the applicants, Thomas Rosenthal and Joanne Rosenthal, jointly, the sum of $8,793.49 immediately.
5. If any party seeks an order for costs, leave is granted to file and serve a short written submission on that issue only within 21 days of the date of these orders.
6. Leave is granted for the other party to file and serve a short written submission in reply within a further period of 21 days.
7. In any such submission the parties are to address the issue of whether the Tribunal should dispense with a hearing on the issue of costs pursuant to the provisions of the Civil and Administrative Tribunal Act 2015 s 50(2).
8. The application is otherwise dismissed.
Catchwords: Jurisdiction of Tribunal to award damages for breach of statutory duty, strictness of duty to repair and maintain, exculpations from duty to repair and maintain, burden of proof, definitions of lot property/common property
Legislation Cited: Strata Schemes Management Act 2015,
Strata Schemes Management Act 1996,
Civil and Administrative Tribunal Act 2013,
Strata Schemes Development Act 2015
Cases Cited: Stolfa v Owners Strata Plan 4366 & ors [2009]NSWSC 589,
Seiwa Australia Pty Ltd v The Owners SP 35042[2006]NSWSC 1157,
The Owners SP 35042 v Seiwa Australia Pty Ltd [2007]NSWCA 272,
The Owners of Strata Plan 50276 v Thoo [2013]NSWCA 270,
Ridis v Strata Plan 10308 [2005] NSWCA 246,
Category: Principal…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2017] NSWCATCD 80
Decision Date: 29 August 2017

CaseChat Overview and Summary

The case of Rosenthal v The Owners - SP 20211 was heard in the Civil and Administrative Tribunal of New South Wales. The applicants, Thomas and Joanne Rosenthal, alleged that the respondent, the Owners-Strata Plan 20211, had breached its statutory duties under the Strata Schemes Management Act 1996 by failing to maintain and repair common property, leading to water ingress into their unit. The dispute centred on the extent of the owners corporation's obligations to address water damage and the appropriate remedy for the breach.

The primary legal issues before the Tribunal were whether the owners corporation had breached its statutory duties to maintain and repair common property, and if so, what the appropriate remedy should be. The Tribunal also considered the burden of proof and the definitions of lot property versus common property in the context of the alleged breaches. The respondents argued that they were not liable for the damage as it was not due to their negligence and that the damage occurred to lot property, not common property.

The Tribunal found that the owners corporation had indeed breached its statutory duties to maintain and repair common property, specifically the waterproof membrane and the window installations which were integral to the common property. The Tribunal ruled that the burden of proof was on the applicants to establish that the damage was due to the failure to maintain and repair common property. The Tribunal held that the damage to the applicants' unit was due to failures in the common property elements, such as the waterproof membrane and window installations. As a result, the Tribunal ordered the respondent to undertake specific repairs and to pay the applicants compensation for the damage caused.

In summary, the Tribunal ordered the respondent to carry out specified repairs to the common property, replace the fire-rated front door, and pay compensation to the applicants. The work was to be completed by a specific date, and the issue of costs was left open for further submissions by the parties.

Orders

Orders of the court

1. The respondent shall immediately take all steps to further investigate as necessary and to correct all sources of water ingress to lot 64 and in particular shall carry out the following work in addition to any other that is found necessary to achieve compliance with these orders;

(1) Replace entire waterproof membrane on level 20.

(2) Correct weep holes to brick cavity wall to main bedroom, correct as necessary flashing in brick cavity wall to main bedroom and investigate and correct as necessary water ingress from downpipe within column to south end of main bedroom.

(3) Waterproof the window hob to second bedroom, install or correct as necessary the flashing and weep holes to the wall between the second bedroom and study and perform all other steps necessary to correct the ingress of water to the second bedroom and study.

(4) In regard to the bedroom on level 20, install water-stop at top of hob, install or correct as necessary the flashing to the east of the window suite, correct as necessary failed end-stops at the end of the sub-sills and failed mitre joints.

2. The respondent shall immediately take all steps to replace the fire rated front door to lot 64.

3. All work referred to in orders 1 and 2 shall be completed on or before 22 November 2017.

4. The respondent, The Owners-Strata Plan 20211, shall pay the applicants, Thomas Rosenthal and Joanne Rosenthal, jointly, the sum of $8,793.49 immediately.

5. If any party seeks an order for costs, leave is granted to file and serve a short written submission on that issue only within 21 days of the date of these orders.

6. Leave is granted for the other party to file and serve a short written submission in reply within a further period of 21 days.

7. In any such submission the parties are to address the issue of whether the Tribunal should dispense with a hearing on the issue of costs pursuant to the provisions of the Civil and Administrative Tribunal Act 2015 s 50(2).

8. The application is otherwise dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

What are the duties of an owners corporation to maintain and repair property?

Medium Neutral Citation:	Rosenthal v The Owners - SP 20211 [2017] NSWCATCD 80
Hearing dates:	26 June 2017
Decision date:	29 August 2017
Jurisdiction:	Consumer and Commercial Division
Before:	Jeffery Smith, Senior Member
Decision:	1. The respondent shall immediately take all steps to further investigate as necessary and to correct all sources of water ingress to lot 64 and in particular shall carry out the following work in addition to any other that is found necessary to achieve compliance with these orders; (1) Replace entire waterproof membrane on level 20. (2) Correct weep holes to brick cavity wall to main bedroom, correct as necessary flashing in brick cavity wall to main bedroom and investigate and correct as necessary water ingress from downpipe within column to south end of main bedroom. (3) Waterproof the window hob to second bedroom, install or correct as necessary the flashing and weep holes to the wall between the second bedroom and study and perform all other steps necessary to correct the ingress of water to the second bedroom and study. (4) In regard to the bedroom on level 20, install water-stop at top of hob, install or correct as necessary the flashing to the east of the window suite, correct as necessary failed end-stops at the end of the sub-sills and failed mitre joints. 2. The respondent shall immediately take all steps to replace the fire rated front door to lot 64. 3. All work referred to in orders 1 and 2 shall be completed on or before 22 November 2017. 4. The respondent, The Owners-Strata Plan 20211, shall pay the applicants, Thomas Rosenthal and Joanne Rosenthal, jointly, the sum of $8,793.49 immediately. 5. If any party seeks an order for costs, leave is granted to file and serve a short written submission on that issue only within 21 days of the date of these orders. 6. Leave is granted for the other party to file and serve a short written submission in reply within a further period of 21 days. 7. In any such submission the parties are to address the issue of whether the Tribunal should dispense with a hearing on the issue of costs pursuant to the provisions of the Civil and Administrative Tribunal Act 2015 s 50(2). 8. The application is otherwise dismissed.
Catchwords:	Jurisdiction of Tribunal to award damages for breach of statutory duty, strictness of duty to repair and maintain, exculpations from duty to repair and maintain, burden of proof, definitions of lot property/common property
Legislation Cited:	Strata Schemes Management Act 2015, Strata Schemes Management Act 1996, Civil and Administrative Tribunal Act 2013, Strata Schemes Development Act 2015
Cases Cited:	Stolfa v Owners Strata Plan 4366 & ors [2009]NSWSC 589, Seiwa Australia Pty Ltd v The Owners SP 35042[2006]NSWSC 1157, The Owners SP 35042 v Seiwa Australia Pty Ltd [2007]NSWCA 272, The Owners of Strata Plan 50276 v Thoo [2013]NSWCA 270, Ridis v Strata Plan 10308 [2005] NSWCA 246,
Category:	Principal…