SEFEROVIC and THE OWNERS OF MINORCA STRATA PLAN 6593 - [2017] WASAT 147

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: STRATA TITLES ACT 1985 (WA)

CITATION: SEFEROVIC and THE OWNERS OF MINORCA STRATA PLAN 6593 [2017] WASAT 147

MEMBER: MS K WHITNEY (MEMBER)
MR R AFFLECK (SENIOR SESSIONAL MEMBER)

HEARD: 27 JUNE 2017, 24 AND 25 OCTOBER 2017

DELIVERED : 22 NOVEMBER 2017

FILE NO/S: CC 1415 of 2016

BETWEEN: JOHN JOVAN SEFEROVIC
Applicant
AND
THE OWNERS OF MINORCA STRATA PLAN 6593
Respondent

Catchwords:

Strata title - Settlement of a dispute or rectification of a complaint - Common property - Keep in good and serviceable repair - Properly maintain - Where necessary renew or replace - Turns on facts - Costs s 81(7) of the Strata Titles Act 1985 (WA)

Legislation:

State Administrative Tribunal Act 2004 (WA) s 15, s 47(1)(a)
Strata Titles Act 1985 (WA) s 3(2)(a), s 83(1), s 32), s 35(1)(c)(i) and s 81(7)

Result:

Application dismissed

Summary of Tribunal's decision:

The applicant lot proprietor alleged that roof works conducted in 2014 pursuant to an order of the Tribunal (differently constituted) failed to restore the roof to good and serviceable repair and that it required replacement again. He also sought repairs to areas of his lot damaged by water ingress.
The Tribunal was not satisfied on the evidence that the roof, as replaced during 2014, was not in good and serviceable repair and/or not properly maintained. To the contrary, the Tribunal was satisfied that the roof over the applicant's lot, as replaced during 2014, is in good serviceable repair and properly maintained. It is fit for purpose and functioning appropriately. The Tribunal was satisfied that it was not in need of renewal or replacement.
The Tribunal was not satisfied on the evidence that the applicant's lot had been damaged by water ingress as alleged. The application was dismissed.

Category: B

Representation:

Counsel:

Applicant: In Person
Respondent: Mr T Thies

Solicitors:

Applicant: N/A
Respondent: Mr T Thies

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

The Owners of St John's Court – Rivervale Strata Plan 6052 and Clark [2010] WASAT 126

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

It is not in dispute that the applicant is the registered proprietor of Unit 30, 221 Clontarf Road, Hamilton Hill, being Lot 21 on Strata Plan 6593 (the applicant's lot) (Hearing Book (HB) page 10). The respondent is a strata company pursuant to s 32(1) of the Strata Titles Act 1985 (WA) (ST Act) known as the Owners of Minorca Strata Plan 6593 (the strata company).
The applicant's lot is located within a strata complex known as Minorca located on Lot 500 Diagram 54289 in the City of Cockburn (the strata complex) (HB page 11). The strata complex is described in the strata plan as a brick and tile three storey residence comprising 30 units (HB page 13). The strata plan was registered on 30 July 1980 (HB page 11).
The applicant's lot is comprised of a 60 m² unit on the second (being the top) floor of the strata complex (HB page 16). It is not in dispute that the boundaries of the applicant's lot are as set out in s 3(2)(a) of the ST Act, namely for the vertical boundaries, the inner surface of the walls, and for horizontal boundaries, the upper surface of the floor and the under surface of the ceiling.

Background

This matter involves a long standing dispute between the applicant and the respondent concerning the adequacy of the roof over the applicant's lot. On 3 December 2013, the Tribunal ordered as follows in matter CC 1183/2013 (an earlier dispute between the parties about the roof – 2013 application):
3.The respondent must forthwith apply in writing, with a copy to the applicant, to the Institute of Arbitrators and Mediators Australia (WA Chapter) for the appointment of an independent architect or building consultant experienced in impartial dispute resolution services to carry out the following functions independently of the parties:
(a)to investigate, and if necessary engage on behalf of the respondent, a suitable contractor to assist in the investigation of the cause of water ingress to the western perimeter and approximate centre of the living, dining and kitchen areas, of the applicants lot and to determine the most appropriate means to prevent such water ingress;
(b)to prepare a scope of the necessary remedial work;
(c)depending upon the nature of the remedial work required, to manage a tender process on the obtaining of quotations on behalf of the respondent;
(d)to engage, on behalf of the respondent, the most appropriate contractor or contractors to carry out the necessary remedial work and to make good any damage occasioned thereby; and
(e)to supervise and ensure the satisfactory completion of all such work.
4.The respondent must do all things necessary to ensure that there are sufficient funds to meet the costs of complying with these orders including, if necessary, the calling of an extra ordinary general meeting to raise a special levy against all lot proprietors.
5. The application is otherwise dismissed.
(the 2013 Orders)
Included in the aspects of the 2013 application which were otherwise dismissed were the applicant's request for orders that the respondent paint and or repair damaged parts of the floor and walls, as well as any electrical cables and connections damaged by water ingress.
It is not in dispute that the respondent appointed JP Fisher Consulting Pty Ltd pursuant to order 3 of the 2013 Orders, and Zinclad Pty Ltd was retained to undertake works to the roof in 2014 pursuant to the 2013 orders (the 2014 works). The specific works undertaken during the 2014 works were the subject of evidence in the present matter, which is detailed below.
The applicant maintains that notwithstanding the 2014 works, the applicant's lot remains uninhabitable because of water ingress, wind ingress, and excessive noise emanating from the roof.

Procedural history

On 13 September 2016, the applicant applied to the Tribunal pursuant to s 83(1) of the ST Act for resolution of a dispute, seeking the following orders:
1.To repair roof over unit 30/221 Clontarf Road to standard as it was or good enough that property is habitable – as it is now its not good enough.
2.To repair interior damaged from years of water ingress in to it. Parquetry, walls, rotten cupboards, floors, electricity.
3.To follow the Strata Title Act accordingly and protect my property to the standard as the rest.
4.To order Council of Owners to pay me all my expenses incurred in previous two SAT sittings as well as my lawyer expenses.
At the directions hearing on 10 October 2016, Senior Member Aitken dismissed the application for proposed order 4 pursuant to s 47(1)(a) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) on the grounds that it was misconceived because the Tribunal had no jurisdiction to make that order. At that directions hearing, the Tribunal clarified the applicant's remaining allegations:
[T]he applicant alleges that the roof which was installed by the respondent pursuant to the orders made by the Tribunal on 3 December 2013 in Matter Number CC 1183 of 2013 is not in good and serviceable repair because:
(a)it leaks and there is water ingress into the applicant's lot;
(b)it allows wind into the applicant's lot; and
(c)it makes excessive noise.
At a further directions hearing on 12 December 2016, Senior Member Aitken ordered that the applicant, by no later than 20 February 2017, must file with the Tribunal and provide to the respondent all documents on which he wished to rely at the final hearing, including expert reports, together with a list of witnesses he proposed to call at the final hearing.
Although the applicant provided documents and witness statements to the Tribunal, he did not provide copies to the respondent. The applicant is unrepresented in the proceedings, and in recognition of this as, well as the Tribunal's obligations pursuant to s 32(3), s 32(6)(c) and s 32(7)(a) of the SAT Act, the Tribunal afforded him latitude. The hearing listed for 27 April 2017 was vacated and reprogrammed for hearing on 27 June 2017.
At a further directions hearing on 12 June 2017, the Tribunal was informed that although copies of the applicant's documents were eventually provided to the respondent, the witness statements were not. Accordingly, the Tribunal gave the respondent leave to file further evidence in response to the applicant's witness statements by 16 June 2017.
By correspondence received by the Tribunal 14 June 2017, the applicant said he misunderstood the need to file and serve all of his evidence by 20 February 2017, and sought leave to adduce further evidence. Copies of his further evidence were annexed to his letter to the Tribunal. The applicant did not provide the respondent with a copy of these materials. The applicant's application and copies of documents and photographs were placed in a Supplemental Hearing Book with the admission of these documents (and any consequent request for an adjournment) to be considered as a preliminary issue at the hearing on 27 June 2017. The respondent did not object to the admission of the documents in the Supplemental Hearing Book and elected to proceed on 27 June 2017.
The matter proceeded to hearing before Member Whitney and Senior Sessional Member Affleck on 27 June 2017, 24 October 2017, and 25 October 2017.

The Tribunal's jurisdiction

Section 83(1) of the ST Act provides as follows:
The State Administrative Tribunal may, pursuant to an application of a strata company, an administrator, a proprietor, a person having an estate or interest in a lot or an occupier or other resident of a lot, in respect of a scheme, make an order for the settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by this Act or the by-laws in connection with that scheme … .
In the present matter, the applicant's complaint is that the roof which was installed by the respondent pursuant to the 2013 Orders is not in good and serviceable repair, is not properly maintained, and/or is in need of renewal or replacement. Section 35(1)(c)(i) of the ST Act requires that a strata company keep the common property in good and serviceable repair, properly maintained and, where necessary, to renew and replace the common property. This is irrespective of whether damage or deterioration to the common property arises from fair wear and tear, inherent defect or any other cause.
The applicant's concerns about the adequacy of the roof prior to the 2013 Orders, as well as his concerns about damage to the applicant's lot attributable to the roof as at 2013, were dealt with by the Tribunal at its hearing in 2013. Proposed order 2, to the extent that it refers to damage incurred prior to 2014, was dismissed as part of the 2013 Orders. As such, this aspect of the application is misconceived and or lacking in substance and is hereby dismissed pursuant to s 47(1)(a) of the SAT Act.
The only issues remaining in the present matter are whether the Tribunal is satisfied on the evidence that:
•the respondent is currently in breach of its duty under s 35(1)(c)(i) of the ST Act to keep the roof in good and serviceable repair, properly maintained and or, if necessary, renewed and or replaced; and or
•the applicant's lot has been damaged by water ingress occurring after the 2014 works were completed.
This matter falls within the Tribunal's original jurisdiction: s 15 of the SAT Act.

Evidence before the Tribunal

The documents admitted into evidence are as follows:
1)Exhibit 1 Hearing Book, being the documents included in the HB pages 1 228 inclusive, comprising:
a)Tribunal application 13 September 2016 and supporting documents HB pages 1 33;
b)letter applicant to Tribunal 28 February 2017 HB pages 34 35 (tendered by applicant);
c)diagram and comments, Alexander L Mandegay 12 January 2017, HB page 36 (tendered by applicant);
d)diagram and comments, Alexander L Mandegay 12 January 2017, HB page 37 (tendered by applicant);
e)diagram and comments, Alexander L Mandegay 12 January 2017, HB page 38 (tendered by applicant);
f)diagram and comments, Alexander L Mandegay 12 January 2017, HB page 39 (tendered by applicant);
g)report Alexander L Mandegay 12 January 2017 HB pages 40 42 (tendered by applicant);
h)email David Smith to applicant 22 November 2016 HB page 43 (tendered by applicant);
i)email to Heritage Group from applicant 3 December 2016 HB page 44 (tendered by applicant);
j)email to SAT from applicant 6 December 2016 HB page 45 (tendered by applicant);
k)email to Heritage Group from applicant 18 November 2016 HB page 46 (tendered by applicant);
l)applicant's diagram and comments HB page 47;
m)report Steve Rainwest Roofing Pty Ltd 7 November 2016, photographs, and tax invoice HB pages 48 51 (tendered by applicant);
n)emails between Steve Rainwest Roofing Pty Ltd and applicant 8 November 2016 HB page 52 (tendered by applicant);
o)witness summary Roy Stockley Davis dated 20 October 2016 HB page 53 (tendered by applicant);
p)witness summary Mr G Salemi dated 6 November 2016 HB page 54 (tendered by applicant);
q)witness summary Mr A McNabb dated 6 November 2016 HB page 55 (tendered by applicant);
r)witness summary Mr Ben Terasaki and Ms Sharon Blettner dated 9 December 2014 HB page 56 (tendered by applicant);
s)witness summary Ms Jessie Nadilo dated 4 September 2016 HB page 57 (tendered by applicant);
t)witness summary Mr Robert Bowell dated 17 November 2016 HB page 58 (tendered by applicant);
u)letter John Detheridge Strata Services to applicant 15 March 2010 HB pages 59 60 (tendered by applicant);
v)witness summary Olivares Liborio dated 25 May 2016 HB page 91 (tendered by respondent);
w)contract for repair of roof dated 22 April 2014 HB pages 92 114 (tendered by respondent);
x)BA3 certificate of design compliance dated 5 May 2014 HB pages 115 117 (tendered by respondent);
y)engineering drawings and covering letter Reed Engineers Pty Ltd HB pages 118 126 (tendered by respondent);
z)BA1 application for building permit certified dated 11 May 2014 HB pages 127 130 (tendered by respondent);
aa)witness summary Tobias Paul Zillessen and exhibits HB pages 131 143 (tendered by respondent);
bb)witness summary Gerald Neil Goodwin HB pages 131 143 (tendered by respondent);
cc)statement of fact and opinion John Patrick Fisher dated 8 June 2017 HB pages 146 187 (tendered by respondent);
dd)witness summary Vera Dorothy Clayton and exhibits HB pages 188 203 (tendered by respondent);
ee)witness summary Mark Fullerton HB page 204 (tendered by respondent);
ff)witness statement Harry Clayton HB page 205 (tendered by respondent);
gg)extracts Bureau of Meteorology HB pages 206 217 (tendered by respondent); and
hh)witness summary Edith Frances Atkinson and exhibits HB pages 218 228 (tendered by respondent).
2)Exhibit 2 Supplemental Hearing Book, being the documents included in the HB pages 229 261 inclusive, comprising:
a)application to adduce further evidence 14 June 2017 HB page 229;
b)applicant's summary of roof issues HB pages 230 232;
c)applicant's photographs, diagrams and written comments HB pages 233 245;
d)witness statements already tendered at HB pages 53 58 at HB pages 246 251;
e)applicant's diagram HB page 252;
f)extracts from certificate of design compliance HB pages 246 251 with applicant's handwritten commentary.
3)exhibit 3 (being a video/movie filed on behalf of the respondent and viewed during the hearing);
4)exhibit 4 (being Bureau of Meteorology data tendered by the respondent);
5)exhibit 5 (being a letter from Frankie Atkinson and Vera Clayton to the Tribunal dated 28 November 2016 tendered by the respondent);
6)exhibit 6 (being a letter from the respondent's solicitor to the Tribunal dated 30 May 2017 tendered by the respondent);
7)exhibit 7 (being an email letter from the respondent's solicitor to the Tribunal dated 23 October 2017 tendered by the respondent enclosing a report from Reed Engineers Pty Ltd dated 19 October 2017 and extracts from online catalogue from Bunnings Warehouse);
8)exhibit 8 (being an enlarged copy of photo 24 located at HB page 194 tendered by the respondent); and
9)exhibit 9 (being a printout of a search of the Board of Engineers Malaysia website tendered by the respondent).
The Tribunal also heard and considered oral evidence from the following witnesses:
1)Mr J J Seferovic;
2)Mr J Fisher;
3)Mr O Liborio;
4)Mr T P Zillessen;
5)Mr M Fullerton;
6)Ms V D Clayton;
7)Mr H Clayton; and
8)Ms E F Atkinson.

The issues

1)whether the respondent is in breach of its duty under s 35(1)(c)(i) of the ST Act to keep the roof in good and serviceable repair, properly maintained and or, if necessary, renewed and or replaced; and
2)whether the applicant's lot has been damaged by water ingress occurring after the 2014 works were completed.

Applicant's contentions and supporting evidence

The applicant's first contention is that the 2014 works did not restore the roof to good and serviceable repair and it requires replacement again. There are several aspects to his contention.
First, the applicant maintains that the roof is not structurally sound. He claims the building was originally designed and built as a monocoque structure (a structure which carries both tensile and compressive forces within the skin and can be recognised by the absence of a load carrying internal frame) and the replacement of Brownbuilt roof panels with the materials used in the 2014 works (Lysaght KLIP-LOK® Classic 700 manufactured from .48 Colorbond steel) has destroyed the monocoque structure (because the Brownbuilt is 'riveted' (button punched) together at the laps whereas the KLIP-LOK® is not).
Second, the applicant claims that the Lysaght KLIP-LOK® Classic 700 manufactured from .48 Colorbond steel was not fit for purpose in any event because it:
•is not suited for use on a mono-pitched roof (a roof consisting of a single sloping surface) and can only be used to construct a dual-pitched roof (a roof consisting of two sloping surfaces);
•is not suited for use on a flat roof with a pitch of 1 degree, such as the roof of the strata complex;
•is not suited for use in the Fremantle area generally because it is a high wind area; and
•is not suited for use on a 10 metre high building.
Third, the applicant claims that the roof as constructed is defective, insufficient or inadequate because:
•the KLIP-LOK® sheets lift and open in windy conditions, allowing wind and water into the roof space above the applicant's lot, which then seeps/blows into the applicant's lot through the ceiling. The lifting and opening of the KLIP-LOK® sheets also causes significant noise in the applicant's lot during storms;
•water builds up on the KLIP-LOK® panels, transgresses the 40 millimetre high ridges, is wind driven into the KLIP-LOK® joints into the roof space above the applicant's lot, and then seeps into the applicant's lot through the ceiling; and
•wind and water ingress occurs through the underside of the 40 millimetre high ridges of the KLIP-LOK® panels because the area is not fully enclosed or sealed.

The applicant's second contention is that by reason of water ingress consequential to the defects in the roof after the 2014 works, the ceilings, walls, and parquetry floors of the applicant's lot have sustained damage.
In support of these contentions, the applicant tendered a report dated 12 January 2017 prepared by Alexander Lola Mandegay, civil and structural engineer of M & H Rise Structure (the Mandegay report). The Mandegay report provides in its entirety as follows:
Have been hired by Mr John J Seferovic of Unit 30 / 221 Clontarf Rd to check up and state problems of the roof over his property which lasts for over 10 years?
General structural statement
The building on 221 Clontarf Road Strata plan 6593. Previous address 341 Carrington Street Hamilton Hill.
At first sight it is visible that building is made of two separate structural units. Main building comprises basement and first floor. Top of the building second level is not structurally integrated in it,
On the second level, there is also two lose / not integrated / brick work one, representing stair wheel other looks like abandoned lift shaft. Units on the top floor are separate brickwork It was built without top floor hard enclosure as concrete to integrate it with main building?
As that we call it 221/B
221/B Is a brickwork covered with metal made monolete structural enclosure membrane on which outer side represent roof. Membrane angle of fall is 1 % or 100mm/ in total length of 10 000mm.
Membrane is fabricated of /1 mm galvanised still plates in riveted standing seam technology as a monolith /one piece / structural enclosure to the top of brick work.
It cannot be removed without endangering structural unity of that brickwork on that level.
Without that enclosing membrane as structural monolith cover, top units are open brickwork?
The Membrane, when properly assembled, riveted to substructure, has weight of about 12.500 gr /M2 with total weight of about 8.5 Tons of monolith metal structure cover to that brick work.
To repair or reroof structure membrane units. It should be done in a manner of changing membrane metal units one by one and rivet them straight back in position. No alternative
Particulars of
Safety, static and seismic implications.
There is not visible structure static or seismic standard applied there to support that brick work?
All what is there is that Heavy structure enclosure. Without that:
Unit 30 fire safety questionable / It will burn 3-5 times quicker /
Winds entering ceiling and living space always.
Not possible to maintain thermal balance standards as in the other enclosed units.
Without enclosing membrane cover, there is not safe escape route.
Any seismic tremor of vertical amplitude over 3 + Righter scale on that height
will break down that lose brick work and stair wells. There is no alternative escape route.
Simple diagram will show you where is roof enclosure problem,
As seen here. 29 other units are properly enclosed from all 6 sides Unit 30 only from 5 sides.
Membrane removed
Mounted steel structure brackets on Unit 30 pulling down on lose brick wall. Danger
Re installed corrugated roof is not of adequate standard to replace membrane. It had not function of enclosing Unit 30 top side, it is made of separate lose corrugate plates, that under the pressure and force of the winds opening living space of the Unit 30 to the weather. With all consequence of producing unbearable noise and random water leaks.
Additional
Strata company.
Strata Title Act by Law States;
No structural or integral part of the building structure should be removed, tampered with or changed at any time.
In case unit 30/221 Clontarf Rd. Strata company or strata contractors had removed; structure enclosing monolete membrane cover. Strata company not entitled to change design or materials or standard of it. Only to replace it or renew as it was, as to preserve structural unity specially in case 221 B structure. Part unit 30
Strata company should hire an Engineering Firm to restore original structure enclosing membrane enclosure to preserve second level 221 / B brick work structural unity to the minimum standards as it was.
All other options will be more expensive and would not produce any better safety standard for that part of building 221 B. .
There is dire need for an escape route from second level building part 221 B.Stair well is brickwork only. Strata company should; Consult; Cockburn Council Housing Administration to supply. The Standard and new Program for static, safety and seismic applications for existing buildings as 221 structure.
All drawings, inspection reports, surveyor report insurance requirements and covers
Also, consult lawyers to explain Strata company obligations on above mentioned case as well a new: Techniques for the safety, static and seismic rehabilitation of existing buildings if applicable.
Hope that all details are covered and that this report will explain problems with second level of the building and top of the building Structural Enclosure Membrane.
Kind Regards
Alex Lola Mandegay
Perth January 12 / 2017
(HB pages 40 - 42, errors in original)
The Mandegay report is accompanied by several diagrams, including the following diagram reproduced from HB page 66:
Mr Mandegay did not attend to be cross-examined on his evidence despite the Tribunal's orders dated 12 December 2016 requiring the applicant to ensure his witnesses attend the final hearing. The applicant tendered no evidence as to Mr Mandegay's qualifications or professional registration. Mr Mandegay's report is not signed and does not contain an acknowledgment from Mr Mandegay that he has read the Tribunal's guide for experts giving evidence in the Tribunal or agrees to be bound by the expert's obligations stated in that guide. This was a requirement of all expert evidence pursuant to the Tribunal's orders dated 12 December 2016.
The applicant also tendered an email dated 22 November 2016 from a witness identified as David Smith, Director Building Compliance, Heritage Group (WA) Pty Ltd. Mr Smith's email provides, in its entirety, as follows:
I refer to your email regarding the report that would be suitable to submit to SAT.
I agreed to look at your roof because you were referred by Dethridges. I mentioned at the time that my workload would not permit me to carry out a full building audit. The inspection of your roof, in my opinion, is not fit for purpose, but to prepare a full building audit on the installation, you require a copy of the manufacturer's design installation specifications and wind loading. If the manufacturer is not known then Lysarghts design specification manual is to be used. Part of the reporting process will require that 2 to 3 sections of tiling be removed.
I do not engage in carrying out building audits for individuals that are a part of a strata scheme and only undertake building audits at the instruction of the strata scheme. For you to proceed further you will need to engage a building surveyor to prepare the report. I'd also advise that your complaint be removed from SAT and your action should be taken out in the District Court
If a SAT order is issued in your favour, they do not have the authority or the power to insist that the Strata Company carries out the rectification work. They will then direct you to the District Court.
I would estimate that the cost to rectify the current roof installation be between $9,500 and $11,000, depending on what consequential damage is caused to the internal ceiling tiles. Additionally there would be court costs, solicitors costs and the building surveyor's fee to prepare a formal report (Building surveyor around $4,000). It may be more cost efficient to carry out the work yourself.
(HB page 43, errors in original)
It is unclear whether Mr Smith's email is tendered as expert evidence. Mr Smith did not attend to be cross-examined on his evidence despite the Tribunal's orders dated 12 December 2016 requiring the applicant to ensure his witnesses attend the final hearing. The applicant tendered no evidence as to Mr Smith's qualifications or professional registration. Mr Smith's email is not signed and does not contain an acknowledgment from Mr Smith that he has read the Tribunal's guide for experts giving evidence in the Tribunal or agrees to be bound by the expert's obligations stated in that guide. This was a requirement of all expert evidence pursuant to the Tribunal's orders dated 12 December 2016.
Finally, the applicant tendered a report dated 7 November 2016 from a witness identified as Steve Roiahn of Rainwest Roofing Pty Ltd. Mr Roiahn's report provides as follows:
I have inspected the above unit, which has had a roof replacement recently as the owner has been complaining of excessive noise from above his unit
As the material and profile of the roof is ok, the roof has been fixed with concealed brackets, which is also acceptable in these circumstances.
The rattling of the roof even in light roof seems to be coming from the roof sheeting which is clip fixed (unsure why) as usually there is no problem with this system used.
However this can be rectified by also rib fixing the roof sheets, which should remove the rattling
Also there are some extremely wide roof flashings which need to be fastened with more fixings, and also angle securely fixed to prevent vibration.
I have attached photos to help better explain the situation.
(HB page 48, errors in original)
It is unclear whether Mr Roiahn's report is tendered as expert evidence. Mr Roiahn did not attend to be cross-examined on his evidence despite the Tribunal's orders dated 12 December 2016 requiring the applicant to ensure his witnesses attend the final hearing. The applicant tendered no evidence as to Mr Roiahn's qualifications or professional registration. Mr Roiahn's report is not signed and does not contain an acknowledgment from Mr Roiahn that he has read the Tribunal's guide for experts giving evidence in the Tribunal or agrees to be bound by the expert's obligations stated in that guide. This was a requirement of all expert evidence pursuant to the Tribunal's orders dated 12 December 2016.
The applicant also tendered six unsworn lay witness statements. Mr R S Davis's evidence (dated 20 October 2016) is as follows:
I Roy Stockley Davis have known Mr John J Seferovic from Clontarf Road Unit 30/221 for over 20 years.
I have visited John house on many occasions. I have been present to hear noise banging and plate scratching and have seen water leaks in the unit.
I have also allowed John J Seferovic to stay and live in my house during times when Fremantle bad weather, usually for about a week at a time until the weather clears. This has happened many times over the last few years.
I hope that these is a way to restore roof over John's unit so he can live there in his old age.
(HB page 53, errors in original)
Mr G Salemi's evidence (dated 6 November 2016) is as follows:
It is to testified that I know John J Seferovic from unit 30/221 Clontarf road since I come to live here.
Here I testified that I know John problem with the roof long ago I was called by John at night times last on 0 01:00 hours to witness noise and banging of the roof in September and October It was impossible to stay and live there and as well when rain was getting inside the unit in previous years.
(HB page 54, all errors in original)
Mr A McNabb's evidence (dated 6 November 2016) is as follows:
I would like to testified that I know Tenant in unit 30/221 Clontarf Road Mr John J Seferovic
I confirm that there is excessive banging and noise from the roof especially in winter when winds, and in storm affected days. It also interfering with my resting and sleeping in my unit.
(HB page 55, errors in original)
Mr B Terasaki's and Ms S Blettner's evidence (dated 9 December 2014) is as follows:
This is a statement to verify that we (Ben Terasaki and Sharon Blettner, former residents of unit 29, 221 Clontarf Rd) have heard loud banging noises from the roof, and believe them to be caused by loose fittings from maintenance that was carried out several months ago.
(HB page 56, errors in original)
Ms J Nadilo's evidence (dated 4 September 2016) is as follows:
I have known Mr John J Seferovic of Unit 30/221 Clontarf Road for many years.
Over this time, I have been aware of problems with the roof over his property. I have helped John prevent water damage to the property by covering furniture in plastic and placing containers to collect water. I also have heard loud banging noises from the roof in cases where there are Fremantle storm winds.
I also allowed John to rent the basement area of my house for years, over the winter months when it was impossible to rest and sleep in his unit.
On one visit to John unit last year with new roof situation did not change.
(HB page 57, errors in original)
Mr R Bowell's evidence (dated 17 November 2016) is as follows:
I have known Mr John Seferovic from Unit 30/221 Clontarf Road for many years.
Lately I heard of problems associated with roof over John unit.
I have lived in Unit 30 / 221 Clontarf Rd for 14 years before John. For all that time. I have never heard any noise or banging of the roof. It never leaks any rain or similar problems in any Storm in that time.
Unit 30 was the best unit in that building.
(HB page 58, errors in original)
None of these witnesses attended to be cross-examined on their evidence despite the Tribunal's orders dated 12 December 2016 requiring the applicant to ensure his witnesses attend the final hearing.
The only oral evidence tendered on behalf of the applicant's case at the hearing was his own. The applicant gave evidence and was cross‑examined for approximately five hours. Most of the applicant's evidence concerned why he considered the 2014 works did not result in a roof that was fit for purpose. The applicant did not seek to qualify himself as an expert, and indicated that he did not purport to give expert evidence in his own matter. Rather he maintained that the documentary evidence tendered (such as the Mandegay report and the Lysaght Design and Installation Guide (HB pages 173 180)) were sufficient to support his claims. Nevertheless, most of the oral evidence tendered by the applicant was in respect of technical matters about which he had no documented expertise.
Likewise, the applicant's evidence included hearsay from a range of witnesses (expert and lay) from the chief engineer of Lysaght to employees of the Cockburn Council who he claimed to have spoken to about various technical matters. The Tribunal asked the applicant on numerous occasions to limit his evidence to his own personal knowledge of information but was either unable or unwilling to do so.
The applicant gave evidence that he experienced water and air ingress, as well as significant roof noise after the 2014 works were completed. The applicant gave evidence that he experienced water ingress on 5 February 2015 and 3 May 2015. All transcript excerpts are uncorrected.
WHITNEY MS: All right. Starting with September 2014, tell us the dates that you got water ingress in the apartment and where. I think that would be useful.
SEFEROVIC, MR: One was directly in my printer.
WHITNEY MS: All right. What day?
SEFEROVIC, MR: That was – I call them on 5 – I write it down – my fault. That was on 5 – sorry – 3 May, 2.15.
WHITNEY MS: Okay. 3 May [2015].
SEFEROVIC, MR: That's the second. The first leak was on 5 February [2015]. Nobody come. I call and nobody come. And then on 5 May John [Fisher] come and strata manager, so they - - -
WHITNEY MS: And where did it leak on 3rd of – on 5 February - - -
SEFEROVIC, MR: (indistinct) on my – on my desk.
WHITNEY MS: Just let me ask the question. On 5 February 2015 where did it leak?
SEFEROVIC, MR: It's a leak on my desk on – directly on the paper on my printer. And then a leak on top of my computer on a desk I have there. Okay. And there's a picture there about that leak. And a leak on the other connection to the original roof down the – down the wall and lift my [parquetry]
WHITNEY MS: Sorry, lifted?
SEFEROVIC, MR: My [parquetry]
WHITNEY MS: Okay. So that was also on 5 February?
SEFEROVIC, MR: Yes. After that I don't know, because I'm not spending any storm or winters in that unit, not possible to live there.
WHITNEY MS: Okay. So - - -
SEFEROVIC, MR: Is probably totally infested.
WHITNEY MS: So when did the – what happened on 3 May 2015?
SEFEROVIC, MR: Well, they – they come, check our (indistinct)
WHITNEY MS: No, to 3 May 2015.
SEFEROVIC, MR: '15, yes. John [Fisher] come and then some people come and they tried - - -
WHITNEY MS: No, you need to – what, did water come in on 3 May 2015? If so, where? You need to take us through the facts, because we don't at know this.
SEFEROVIC, MR: Yes. I am telling you. Near the main door, down the – down the wall and (indistinct) It's still there (indistinct)
WHITNEY MS: And that was on 3 May.
SEFEROVIC, MR: Yes, 3 May. And then a leak on my - - -
WHITNEY MS: And you say and someone inspected that. You said - - -
SEFEROVIC, MR: Well, the people come after John [Fisher] and the strata manager. I can't remember who - - -
WHITNEY MS: Who were the people?
SEFEROVIC, MR: John Fisher and the strata manager. Maybe someone else. I can't at remember. My memory too bad.
WHITNEY MS: They came on 3 May?
SEFEROVIC, MR: Because they – too many times they come. I can't at keep that all in mind.
WHITNEY MS: Okay.
SEFEROVIC, MR: And John check up water on my printer and I show him around, which I keep my – my shoes, okay, and was (indistinct) was wet. After that I don't at know how many times where the leak, because I'm not waiting there. Not possible to live there. My unit is there not for live in it, not for rent, not for sale. Totally ruined.
WHITNEY MS: And you're saying that this damage, the lifting of the parquetry on 3 May 2015 and the water leaking on the desk onto the top of the computer caused damage after the roof works were undertaken in 2014.
SEFEROVIC, MR: That's six months already.
WHITNEY MS: All right.
SEFEROVIC, MR: They lay roof on September. I wasn't at here. I can't tell which day.
WHITNEY MS: Yes.
SEFEROVIC, MR: But I return on 26 October from Europe from my trip.
WHITNEY MS: All right. So what damage on 5 February? You said it leaked onto the computer. What damage or what damage to the apartment occurred?
SEFEROVIC, MR: Only that parquetry. It leak in my printer and printer is gone and then went down on my – one of those cupboards, which was open on the desk. So on three, four, four cupboards on the side of the desk.
WHITNEY MS: Cupboards of the desk.
SEFEROVIC, MR: Yes.
WHITNEY MS: Okay. What other rain ingress occurred causing damage to the property after the works in 2014?
SEFEROVIC, MR: That's – that's that. Before that was bigger.
WHITNEY MS: Okay. So just those two times in 2015 and the rest you don't at know, because you weren't there.
SEFEROVIC, MR: No, I don't know.
WHITNEY MS: Okay.
SEFEROVIC, MR: Probably [every]where, but I keep everything what I have covered with plastic. Okay. Any time I leave the house – home I must cover everything. Or if I sit there I must for strata company watching so many thousand days in a roof when is going to leak.
WHITNEY MS: All right.
SEFEROVIC, MR: Can you imagine?
(T:36 - 39; 27.06.17)
The applicant confirmed in cross-examination that the only water leaks to the applicant's lot since the 2014 works were on the above dates.
THIES, MR: Yes. But that's one of the only times that it had leaked.
SEFEROVIC, MR: No. It has leaked twice. I – I (indistinct) also on 5 February and 3 March, I think.
THIES, MR: Yes. So that's the only times that it has leaked then.
SEFEROVIC, MR: Just only times, but is that enough or you want more?
(T:64 - 65; 27.06.17)
During cross-examination, the applicant identified photo 10 from HB page 202 as a photograph of a piece of paper on his desk bearing a brown stain from water ingress on 3 May 2015 (T:116 117; 27.06.17). The applicant confirmed that photographs 4 and 5 on HB page 201 showed the ceiling over the desk seen in photo 10. He also confirmed that he saw water on the table in the same spot as the paper in photo 10 on 15 September 2016, as well as a damp patch on the ceiling over the area. He did not see water drops (T:123 126; 27.06.17).

In cross-examination, Mr Thies, counsel for the respondent, questioned the applicant further about the cause of the water ingress:
THIES, MR: Well, you – well, I'm trying to understand how you're saying the water is actually getting into your unit.
SEFEROVIC, MR: Well, I'm telling you.
THIES, MR: Well - - -
SEFEROVIC, MR: Because wind – wind moved the sheets, lift up the water, water come over the rib which is 50 millimetres, fall is 200 millimetres, and water rise up and rise up over that curve. If wind move the sheet, water is going in. So no, that's engineer (indistinct).
THIES, MR: Sorry, does that – are you saying that the sheets are not separating? You said there was movement between the sheets and they opened. That's your words.
SEFEROVIC, MR: Yes. Those my words, and that's what happened.
THIES, MR: And you've used – well, how are the sheets opening? Can you explain to us how the sheets are opening? What do you mean by the sheets are opening?
SEFEROVIC, MR: Sheets are laid down, okay? They are not - - -
THIES, MR: There's two sheets. There's a whole sequence of sheets placed next to each other.
SEFEROVIC, MR: Yes. Yes. And most of those, on the end of the roof, they fly because wind come (indistinct) – wind come (indistinct) try to explain.
THIES, MR: Yes. But let's just – I was trying to get you to explain why you're saying that the sheets are opening. Let me ask you: did you ever see a sheet open?
SEFEROVIC, MR: No. I can hear it. I don't go on the roof. [I am eighty-] two years old.
THIES, MR: But you have been on the roof at some stage, haven't you?
SEFEROVIC, MR: 10 years ago, yes.
THIES, MR: 10 years ago?
SEFEROVIC, MR: Yes.
THIES, MR: And you told us when we were there that Mr Mandigay didn't go on the roof either.
SEFEROVIC, MR: No. He didn't. He has telescopic camera, (indistinct) on a balcony measurement everything, and he took – connected to computer and check up everything.
THIES, MR: Okay.
SEFEROVIC, MR: You don't need to go up there. Today, a new era.
THIES, MR: Yes. But as far as these sheets go, and you're saying that they are opening, when you say 'opening', you mean there's a space that opens up through which water and air can move? Is that what you're saying?
SEFEROVIC, MR: That's a fun question.
THIES, MR: Well, you're using the words. So I don't understand.
SEFEROVIC, MR: I'm using the words. Water won't go in if there is no wind. It's – my roof is - - -
THIES, MR: Do you mean the water won't go in - - -
SEFEROVIC, MR: Yes. I explain - - -
THIES, MR: Just – no. Let me ask the questions. Do you mean that the water won't go in if the sheets don't open up? Yes or no. It's just simple.
SEFEROVIC, MR: Yes. But you're supposed to (indistinct) that. What you asking me though? Water won't go in - - -
THIES, MR: (indistinct) this is what your case seems to be on and how the water is getting in there, because let me put it to you that Mr Fisher and Mr Zillessen from Zinc Clad and Mr Fullarton from Zinc Clad say that it's not possible for water to get in, and that – their evidence will be that the sheets do not open up. So what I'm saying to you - - -
SEFEROVIC, MR: Their evidence won't be good enough because they didn't put roof according to the set programs in this booklet. Okay?
THIES, MR: Well, their evidence will be that they did follow the instruction in the booklet.
SEFEROVIC, MR: They need these, okay? Well, I can't tell you that. I tell you that my roof is like umbrella, okay?
(T:65 - 67; 27.06.17)
Mr Thies also asked the applicant about the outcome of a recent water spray test at the applicant's lot:
THIES, MR: … So Monday – not yesterday but last week – Mr Fisher and Mr Zillessen and Mr Fullarton came to your unit and they went onto the roof; is that correct?
SEFEROVIC, MR: Yes. That was kid's experiment.
THIES, MR: Okay. Now, when they did that, they took a [hose] and they sprayed water onto the roof and you were inside your unit while that was happening?
SEFEROVIC, MR: Correct.
THIES, MR: And did you see any water coming into your unit?
SEFEROVIC, MR: Well, that's - - -
THIES, MR: No. Yes or no? Did you see any water coming into the unit, please?
SEFEROVIC, MR: No, sir. No water but - - -
THIES, MR: Thank you. That's all. That's the only thing that we need to hear.
(T:83; 27.06.17)
The applicant also gave evidence that he experienced significant roof noise during a storm on 6 April 2017.
WHITNEY MS: 6 April.
SEFEROVIC, MR: - - - 2017, and I took the noise level meter – decibel metre – from the (indistinct) engineers and I bring it up and storm start from 9.30. And I measure noise in my unit, was 82 decibels. And I went to unit 24, because that man doesn't sleep – barely – and I measured in his unit – he's 24 – it was only 40 decibels. Madam, that's two (indistinct).
WHITNEY MS: Okay. Where's your evidence of that?
SEFEROVIC, MR: That's evidence that the roof is too noisy.
WHITNEY MS: No. No. No. Your evidence of the readings?
SEFEROVIC, MR: Evidence of the readings. From the – that's from the instrument which showing you the noise.
WHITNEY MS: You've got a picture of it, or - - -
SEFEROVIC, MR: I don't have it. There is a hundred of them. Some of them is – can be joined to the (indistinct) – what they call it.
…
WHITNEY MS: All right. But you don't have the evidence of those readings?
SEFEROVIC, MR: No. I'm telling you everyone can come and put that meter there and say yes, that's (indistinct) and then go in the other units on the other house and say well, that's a huge difference.
WHITNEY MS: Okay.
(T:55 - 56; 27.06.17)
During cross-examination, the applicant confirmed that he had never personally seen the roof sheets lifting and opening, but that he was certain that the banging noises he heard from the roof was caused by the roof sheets opening and closing, and not a PVC conduit attached to the roof.
THIES, MR: No. Let me stop you there for a second, please. You said you can't tell me, and that – the reason – and let me just check with this, with you – is because you didn't see them install the roof. You haven't been on the top of the roof, so you don't know how they installed the roof.
SEFEROVIC, MR: Why should I do that in a clear mind?
THIES, MR: No. I'm just – please. Please, just answer the question. Did you see them install the roof?
SEFEROVIC, MR: No, I didn't. I haven't been here. I called (indistinct), I can't - - -
THIES, MR: So – no. That's – no, I don't need a long, long explanation. Just a simple answer, please, if you would, Mr Seferovic. So you didn't see the installation done and you don't know how the sheets were laid down and you can't really tell us that the sheets do open up. That's just your theory, that the sheets open up.
SEFEROVIC, MR: It's not theory if a roof starts to bung, okay? That means it's opening (indistinct) I'm showing. Do you want to hear?
…
THIES, MR: So you mentioned the roof banging. Did you see any particular part of the roof banging with your eyes?
…
SEFEROVIC, MR: Okay. I haven't seen it, but let you assume (indistinct).
THIES, MR: No. That's all that I need to know. So you haven't seen - - -
SEFEROVIC, MR: How can I see roof? How do you mean I can see roof?
THIES, MR: With your eyes. You just look and you see. Because you see, what Mr Zillessen says is, for example, when we went up on the roof in November last year, there was a PVC conduit which went to the position where your air conditioner used to be, and that conduit runs all the way along the top of the building and they secured that afterwards. So that could move; that could create a banging noise.
…
SEFEROVIC, MR: I don't know that they left a pipe on top of my roof.
THIES, MR: No. Please. Please, listen to me. If the pipe moved up and down on top of the roof, it could make a banging noise, couldn't it? It's yes or no.
SEFEROVIC, MR: No. No. Because if they left some pipe, that's their problem. I don't know for that.
WHITNEY MS: Well, that wasn't the question that was asked. The question that was asked is if there was piping on the roof, could it bang in the wind?
SEFEROVIC, MR: Why should be pipe there?
WHITNEY MS: That's not the question. The question is if there was pipe on the roof, could it bang and make a noise?
SEFEROVIC, MR: I don't know.
WHITNEY MS: Okay. That's fair enough.
THIES, MR: Okay.
SEFEROVIC, MR: I don't believe that they keep a pipe on the top of roof.
WHITNEY MS: Okay.
(T:68 - 70; 27.06.17)
The applicant also denied in cross-examination that the banging noise he said he heard from the roof could be caused by the wind rattling a satellite dish installed on the balcony near the applicant's lot as demonstrated in a video tendered by the respondent (T:112 113; 27.06.17).
During cross-examination, the Tribunal asked the applicant to clarify precisely what his wind/air ingress complaint pertained to.
WHITNEY MS: Perhaps you could clarify what the complaint is.
SEFEROVIC, MR: Yes. I will clarify. We talking here of two different places. The roof space should be insulated from ceiling space, but is not. So any wind which is coming bottom the roof is a pressurising air in my ceilings and leaking aside these straw mats, as well as the – what's the name – fence. So there is a big wind bottom in my ceiling space and shouldn't be there. Roof space and ceiling space should be divided, but they are not, because there is no decking, no membrane. That's all what is - - -
WHITNEY MS: Okay. So that's it then. So that is what you've said then.
AFFLECK MR: Yes.
SEFEROVIC, MR: Yes…
(T:147; 27.06.17)
…
WHITNEY MS: Are you saying that there's wind actually in the apartment?
SEFEROVIC, MR: Yes, it's a pressurised when you – when there's a storm, like, say, on 21st when was wind over 80 – 86 kilometre striking Freemantle and Scarborough. I don't know – it was taking my breath out. It's a vacuum inside. You know when such a wind blowing it's probably pressure on the roof is anywhere between 200, 300 newtons. That's a huge - - -
WHITNEY MS: All right. All right.
SEFEROVIC, MR: - - - power.
WHITNEY MS: We're not going to take scientific evidence here. So I just want to clarify factually what you're saying is happening. You're saying there's a like a vacuum or a pressurising taking place inside your apartment?
SEFEROVIC, MR: Yes, because coming through this - - -
WHITNEY MS: [to Mr Affleck:] Does that make sense to you?
SEFEROVIC, MR: - - - corrugated course.
AFFLECK MR: I understand the argument.
THIES, MR: The vacuum or the pressurisation that you're talking about is inside the actual roof space. It's above the ceiling and below the metal roof, isn't it?
SEFEROVIC, MR: Mr Thies, a roof is not put like that. That got roof space and the ceiling space. We don't have, because we don't have decking. This roof is not membraned as a previous roof. That's it. No more words.
THIES, MR: What I'm saying to you, if you can imagine this room and it being flat across and joined everywhere to the walls, except for one pole, which is your – equivalent to your kitchen fan, there is no way that no matter how much the pressure is above it air will come through unless there's a hole in the ceiling that it can come through. That's correct, isn't it?
SEFEROVIC, MR: No, it's not correct. You are wrong.
THIES, MR: Well, where does the air come through?
SEFEROVIC, MR: I tried to explain, but you won't hear.
THIES, MR: No. Just tell me where. Tell me in your - - -
SEFEROVIC, MR: Around – around the – around the – the straw mats are no porous. You know porous? That they leaking. Then around them where this coming to the beams. Okay. That's an empty space.
THIES, MR: But, Mr - - -
SEFEROVIC, MR: And wind – wind easily can pass through it.
THIES, MR: There's no gap in the ceiling anywhere near the beams. Correct?
SEFEROVIC, MR: No, you are wrong.
THIES, MR: Yes? Well, did you think that maybe you should bring some photos to prove that, because it's certainly going to be the evidence of all the other witnesses that there is no gap where the air can come through - - -
SEFEROVIC, MR: Well, probably - - -
THIES, MR: - - - into the - - -
SEFEROVIC, MR: - - - for a wind you don't need a gap of three metres. It's enough a few millimetres if there's pressure between roof and ceiling - - -
THIES, MR: A few millimetres?
SEFEROVIC, MR: - - - it will be cold.
THIES, MR: Yes. But you could see a gap of a few millimetres, and you could put your hand there and feel it.
SEFEROVIC, MR: Yes, of course you can.
THIES, MR: But you didn't show us or mention that during the inspection, did you? You just said the air was coming through the ceiling fan. Correct?
SEFEROVIC, MR: That's where is the hole.
THIES, MR: No. Just answer me. That's correct. You did not tell us - - -
SEFEROVIC, MR: Correct.
THIES, MR: - - - during the inspection about any other hole. Is that correct, please?
SEFEROVIC, MR: There's – there's no hole - - -
THIES, MR: No, Mr Seferovic. During the inspection in May this year did you tell us about any other hole in the ceiling, big or small, where you thought air might be coming through? Yes or no.
SEFEROVIC, MR: I don't know. I – I can't remember anyone asking.
THIES, MR: Well, I put it to you that Frankie Atkinson did ask you, 'Where's the air coming through?' and you said, 'The ceiling fan.'
SEFEROVIC, MR: Yes, but there is two ceiling - - -
THIES, MR: Well, that's all there is to it. She did ask you and you didn't tell us. Correct?
SEFEROVIC, MR: I don't know. Can't remember that question, but the – if she asked me probably I would tell her. I'm not here to find any hole. The – the pressure from the bottom the roof either like pressure in a ceilings, okay, which should not – should be insulated - - -
(T:149 - 152; 27.06.17)
THIES, MR: If I can refer you to that diagram that you did, with the arrows and the leaks, which is at page 235.
SEFEROVIC, MR: Yes. I remember that. Page 25?
THIES, MR: 235. See you've used the word 'wind vortex'?
SEFEROVIC, MR: Correct.
THIES, MR: Could you explain to us what you mean by a wind vortex?
SEFEROVIC, MR: Well, when the wind energise up the wall, okay, it's come on that place if it's not protected, okay, and it start to roll back. Okay.
THIES, MR: Okay. So with your hand, you're doing a movement I might describe - - -
SEFEROVIC, MR: Moving my hands. That's done because water is a place where – where some things are just stop.
THIES, MR: No. No. No. Stick with me for a moment. A vortex, you've used the word "wind vortex" and you are moving your hand around. And I put to you the common meaning of a vortex is a swirling – swirling type motion. So it's wind moving around. It's not just going in one straight direction. Correct?
SEFEROVIC, MR: It's a press bottom, that roof, okay, and it can't escape nowhere. Okay.
THIES, MR: Okay. So - - -
SEFEROVIC, MR: And then is (indistinct)
THIES, MR: Sorry. Let me just ask you a question. If wind hits the overhanging roof here, which is in your previous picture 234, it will tend to make a motion and swirl around it?
SEFEROVIC, MR: Correct. Is stop the wind going any direction.
THIES, MR: Okay. That's all I wanted to know. Thank you. And it's this motion of wind that is getting through the gap into the ceiling that you're talking about. Correct?
SEFEROVIC, MR: Correct, because there is no distance between ceiling and the roof area.
THIES, MR: Yes. And that's the gist of your complaint basically. This vortex wind is getting through what you call a gap?
SEFEROVIC, MR: Well, they became injectors then and (indistinct)
THIES, MR: Yes. I understand you're going to use the word 'injectors', but that's the gist of your complaint, that the vortex wind is getting through the little holes under the ridge which you're calling 'injectors'.
SEFEROVIC, MR: Yes.
THIES, MR: Yes?
SEFEROVIC, MR: I shouldn't tell that – that engineer who construct the roof - - -
THIES, MR: No. No. Please. Please. We're agreed that's what your complaint is about. It's not getting through any other gap or hole. It's this vortex wind that's going through the little ridge holes into the ceiling. Correct?
SEFEROVIC, MR: I don't know.
THIES, MR: No. That's what you just said before. Do you want to change what you're saying is the gist of this complaint?
SEFEROVIC, MR: I don't want to change nothing. That's where the wind stops. Wind is aggravate up the 10 metres of wall.
THIES, MR: You say you might get some wind coming up the wall. That's part of it. Correct?
SEFEROVIC, MR: Some wind.
THIES, MR: Some wind? Okay.
SEFEROVIC, MR: Some wind, so all speed the winds come up there. You know, when you – when the wind - - -
THIES, MR: No. Just stop. Let me keep asking you a couple of questions and then I will let you go. That's the gist of your complaint, that this vortex wind that you've drawn there – and you've drawn it with arrows in quite a number of different directions, haven't you? You've put arrows in different directions?
SEFEROVIC, MR: Yes.
THIES, MR: So that indicates there's wind moving around in a different ---
SEFEROVIC, MR: It's indicate that these supporting brackets are closed now and wind ricocheting can't expand, okay, and ricocheting back - - -
THIES, MR: Yes.
SEFEROVIC, MR: - - - and going this side.
THIES, MR: But it's not the brackets that you're complaining about. It's the fact of this wind or a vortex or some kind of movement that is going into the roof through what you call injectors. Correct?
SEFEROVIC, MR: Correct.
THIES, MR: Correct?
SEFEROVIC, MR: They became injectors then.
THIES, MR: Yes. And those injectors are the little holes created by the ribs of the corrugated roof sheets. Correct?
SEFEROVIC, MR: Yes. And there is 29 of them there.
THIES, MR: You've counted the number of ridges all the way along?
SEFEROVIC, MR: Yes. And I calculate how much of space that's taking to push the wind in.
THIES, MR: Yes. Okay. When you - - -
SEFEROVIC, MR: Same is on the other side.
THIES, MR: No. Stop for a minute, please. I'm just going to put to you one final thing. Those holes are blocked. They have been blocked by a silicone foam.
SEFEROVIC, MR: I don't know.
THIES, MR: Okay. But it's simple. Yes?
SEFEROVIC, MR: Then where is – where is the wind from?
THIES, MR: If you don't know, that's fine, but it means that your theory doesn't hold any weight at all because, if they're blocked, air can't go through, can it?
SEFEROVIC, MR: Don't know what they put or what they don't put.
THIES, MR: Okay. That's it. If you don't know, that's it.
SEFEROVIC, MR: No. But I know that wind must come from there. There is no other opening and this is not enclosed like all the other buildings on the wall.
THIES, MR: I understand all of that argument. Yes. Thank you. That concludes my - - -
SEFEROVIC, MR: Okay. More questions?
THIES, MR: - - - cross-examination.
(T:163 - 166; 27.06.17)

The respondent's evidence

The respondent's case consisted of a witness statement from John Patrick Fisher dated 8 June 2017, principal of JP Fisher Consulting Pty Ltd, civil engineer. Mr Fisher's statement attests to his education and professional qualifications, professional affiliations, and professional experience. His statement acknowledges that he has read the Tribunal's pamphlet A 'Guide for Experts Giving Evidence' in the SAT and that he agrees to be bound by the expert evidence obligations described therein.
Mr Fisher's statement attests to how he came to be involved in the matter.
The Facts of my Involvement in the Project
9.Mr Seferovic's apartment at 30/221 Clontarf Road, Hamilton Hill, forms part of Strata Plan 6593. The apartment building is a three storey walk up, typical of low cost buildings built during the 1960's. The original roof comprises galvanised steel sheet showing considerable signs of ageing with significant rust marks. When I first saw the roof it was obvious that two areas of Mr Severovic's [sic] roof had been replaced, apparently on different occasions. These areas comprised approximately two thirds of the roof of his apartment. The remainder of his roof together with the rest of the block was original.
10.The issue of roof leakage at the apartment was brought to the attention of SAT in matter CC1103/2013. Senior Member Raymond ordered that the Owners approach the Institute of Arbitrators and Mediators Australia to nominate a building consultant experienced in dispute resolution to investigate the cause of water ingress, determine remedial works to be undertaken and organise a contractor to undertake remedial works and supervise and ensure carrying out of the works.
11.On 8 December 2013 the Owners approached IAMA who nominated me as the consultant. Following a preliminary view I was appointed by the Owners on 6 January 2014.
12.Because of uncertainty about the quality of previous repairs it was decided to replace the entirety of the roof sheets over the apartment.
13.I undertook research about the original roof sheets and found an appropriate match for new roof sheets. On 28 February 2014 I received an email from Mr Vince Carnevale, Business Development Manager WA at sheet manufacturers Lysaght confirming that the existing sheets appeared to be Lysaght Brownbuilt Mark V 406 sheets. Lysaght ceased manufacturing them in 1976. The Mark V 406 was 0.77mm thick, made necessary by the relatively low grade steel and the thickness of the zinc galvanising.
14.The current equivalent that Lysaght manufactures, and which I specified in the contract, is Kliplok 406, a lighter sheet 0.48mm thick comprising high grade steel with a Colourbond paint coating. The profiles of the sheet are very similar. However post contract it was agreed that Kliplock Classic 700 sheets would be used, which are three pans wide instead of two and can be laid at 1° fall instead of the 2° required by Kliplok 406.
15.During the period of construction of the original building substantial overhangs of roof sheet, such as exist on the building, were a popular design in order to provide shade. It was subsequently found that such overhangs experienced uplift in high wind conditions and could also collapse downwards by the weight of a man undertaking maintenance. In consequence the maximum unsupported overhang permitted by the Building Code of Australia was reduced from 1200mm to 600mm.
16.The new design incorporated brackets and a beam to reduce the overhang. The beam and bracket system was structurally designed and certified by Reed Structural Engineers of Main Street, Osborne Park. The roof design was certified by registered building surveyor John Philip Greenwood of certifiers WABCA.
17.During the design Mr Severovic brought to my attention that wind and possibly thermal movement created noise, particularly when strong gales are blowing in winter. The SAT order of 3 December 2013 makes no reference to noise. However given the concerns of Mr Seferovic I determined with the Owners that the design should include the maximum insulation possible, which would both limit acoustic issues and bring the thermal insulation of the roof up to the standards then current. On the advice of Bradford Insulation, a well respected manufacturer of insulation, a double layer of insulation was incorporated into the roof. This comprised a lower layer of 75mm thick Bradford Gold between the timber joists which formed the roof substructure and a layer of sound insulating Anticon 60. The Anticon data sheet shows a noise reduction from 67dB to 61dB when using Anticon 60 insulation with Kliplok sheets. The acoustic noise scale is logarithmic so the noise transmission through the roof would be of the order of 4 times less with insulation. While this is very approximate and affected by numerous other factors, the noise reduction compared to the original roof can be anticipated to be substantial.
18.The design also incorporates gap filling with silicon impregnated foam of all joints between brickwork and roofing and between vertical roof flashing and the building to prevent any possibility of entry of wind blown rain into the apartment.
19.After two rounds of tendering to find an appropriate contractor, Zinclad Pty Ltd was appointed to undertake the works. The contract documents shows photographs of the extent of the works to be undertaken.
20.An application for a building permit was made by Zinclad on 5 June 2014 and approved on 13 June 2014. The works were carried out on 3/4 September 2014, after the winter weather. Appendix 6 shows photographs of work in progress.
21.I visited the site with Zinclad on 18 August 2015 approximately one year after the works were completed. I went onto the roof. Two minor brackets appeared to have pulled loose and were refixed. The works were otherwise satisfactory and there was no further evidence of leaking or noticeable noise from the roof. I did not see any evidence of loose roof sheets.
22.I went into Mr Seferovic's apartment with Frankie Atkinson and Vera Clayton, the representatives of the Owners. I did not see any evidence of new leakage subsequent to undertaking the roof works.
23.I am therefore of the opinion that the repairs were carried out satisfactorily in that they have cured the issues of leakage. I am also of the opinion that the modern roof sheeting, bracketry and insulation materials used are better than those of the original design.
(HB pages 148 151, errors in original)

Mr Fisher also gives an expert opinion in respect of the Mandegay report.
Opinion Regarding the Report of Mr Mandegay
24.I have been provided with a copy of a report from a Mr Alexander Lola Mandegay dated 12 January 2017. I have been asked to provide an opinion on the on the engineering issues which it raises. The paragraphs within the report are unnumbered. In order to comment I have extracted paragraphs from the report in the manner below.
[Mandegay extract:] At first sight it is visible that building is made of two separate structural units. Main building comprises basement and first floor. Top of the building second level is not structurally integrated in it,
On the second level, there is also two lose / not integrated / brick work one, representing stair wheel other looks like abandoned lift shaft. Units on the top floor are separate brickwork It was built without top floor hard enclosure as concrete to integrate it with main building?
25.The building is a three storey structure comprising ground, first and second floors. There is no basement. The structure comprises loadbearing brickwork with an integral concrete slab at first floor and second floor level. The roof structure is a timber joist structure spanning between brickwork walls on which are fixed corrugated steel sheets. This is typical of many low rise buildings of the era. The timber joists will provide lateral stability to the brick walls at roof level. The steel sheets are not designed to provide lateral stability to the entire building, merely a weatherproof covering. However the sheets together with the timber will provide some element of stiffening to the structure. At the time of design it was common practice to ignore any element of stiffening due to the steel sheets. Only since computing has become widespread has it been possible to calculate and incorporate the effect of diaphragms made from lightweight materials. Without doubt the original steel sheet was not designed as a monocoque membrane.
26.The two stair towers are attached to the main building by the concrete floor slabs and via the timber and roof sheets at roof level. The towers will give significant lateral stability to the entire structure but are not relevant to the steel sheet replacement. The building does not have a lift and neither stair tower is designed to accommodate one. See Appendix 3 to this report which includes a satellite photograph taken from Google Maps in 2017. The photograph shows the new roof over Mr Seferovic's apartment and can be compared with the similar photograph from 2014 within the contract which shows the previous roof with two distinct repairs.
[Mandegay extract:] 221/B Is a brickwork covered with metal made monolete structural enclosure membrane on which outer side represent roof. Membrane angle of fall is 1 % or 100mm/ in total length of 10 000mm.
Membrane is fabricated of /1 mm galvanised still plates in riveted standing seam technology as a monolith /one piece / structural Enclosure to the top of brick work.
It cannot be removed without endangering structural unity of that brickwork on that level.
Without that enclosing membrane as structural monolith cover, top units are open brickwork?
The Membrane, when properly assembled, riveted to substructure, has weight of about 12.500 gr /M2 with total weight of about 8.5 Tons of monolith metal structure cover to that brick work.
To repair or reroof structure membrane units. It should be done in a manner of changing membrane metal units one by one and rivet them straight back in position. No alternative
27.The new roof does fall at 1%. The original roof falls at slightly less than 1%. Neither the new nor the original roof is monolithic with the supports forming a monocoque structure. Both are merely attached to the timber by roof screws through the patented roof lips.
28.Neither the original nor the new sheets are riveted. Individual sheets are not riveted to the next but clipped as shown on the data sheet. Neither are the sheets riveted to the timber substructure. It is not possible to change the sheets one by one as proposed in the Mandegay report. As the sheets overlap it is necessary to take each overlapping sheet off the one below in its entirety and only when all sheets are removed then new sheets are laid in an overlap in the reverse order to the removal.
29.The diagrams in the Mandegay report seek to demonstrate that the old and new roofs act structurally in entirely different ways from each other. This is simply incorrect as is evident from the works photographs.
30.The only difference is that the addition of brackets supporting the overhang strengthens the structure. The diagram also shows a significant gap between the wall and the roof in the new design. This is inaccurate. Neither old nor new had a large gap, although uplift on the unbracketed old design may have caused a gap large enough for moisture laden air to pass through with consequent leakage into the apartment. The combination of brackets preventing uplift and the installation of silicon impregnated foam at the joint between brickwork and roof sheets will have sealed any small gap.
31.The original Lysaght Brownbuilt 406 Mark V sheets weigh 8.9 kg/m2 and not 12.51cg/m2 as stated in the Mandegay report.
32.The original sheets can be, and indeed were, removed and replaced without endangering the structural strength of the brickwork, which gains its strength entirely below the level of the roof sheet.
33.The Mandegay report then notes three concerns:
i.That without a monocoque roof the brick structure would collapse in earthquakes with a Richter scale of 3.0 and above. There appears to be no calculated basis for this. As a general principle there is only minor damage sustained to very poorly constructed buildings at Richter scale 4. Buildings are unlikely to sustain more than superficial damage at Richter scale 3. The Richter Scale is logarithmic and therefore an earthquake with a magnitude of 4 would be 10 times as strong as an earthquake of magnitude 3. The Australian Government organisation Geoscience Australia reports that there have been eight significant earthquakes within the range 6.0 to 6.5 in Western Australia within the last 100 years, although none have been close enough to Perth to cause damage. Even the current National Construction Code 2016 makes only brief mention of the need to take account of earthquakes when designing a structure but provides none of the specific guidance as can be found in building codes in areas of the world with high seismicity. The building is not in an area of high seismicity.
ii.That escape exits are insufficient in the event of fire or earthquake. There are two exits from upper levels via the staircases. The escape distances for a Class 2 building of 6m from a sole occupancy unit in a dead end and 45m between escape stairs comply with the current requirement of Clause D1.4 of the National Construction Code 2016. There is no suggestion they were not compliant at the time of construction or with the current obligations of the Strata Management.
iii.That the brackets are dangerous in that they pull down on loose bricks. There is no sign of loose, cracked or otherwise faulty bricks (see photographs). The brickwork generally appeared to be in good condition. The brackets are bolted to the wall as required in the engineering design. The allegation that such a standard steel to brickwork connection is dangerous appears to be entirely unsubstantiated.
34.The report concludes that the roof is not of "adequate standard". While it is not clear why the roof is claimed not to be of adequate standard the allegation appears to be based on the issues outlined above. That is pertaining to noise and structural safety.
35.However a standard must be definable. The report appears to accept that the standard at the time of construction around 1965 was met. The standard current at the time the application for building approval was made in April 2013 was the Building Code of Australia 2013 edition. This has since been superseded and the current code is the National Construction Code 2016. NCC 2016 only specifies noise reduction in walls and floors but, in common with earlier versions of the code does not specify noise reduction levels required for steel roofs. Thus it is not possible to state that noise reduction is not of adequate standard.
36.Structurally NCC2016 requires metal roofs to be compliant with AS 1562.1-1992. The sheets are clipped to brackets, which are in turn fixed to the timber joists. The spacing of the timber joists meets the requirements of maximum distance between fixings of 1800mm at the edge of the building and 2100 internally. The overhang is now braced by additional structure sufficient to comply with the maximum permitted overhang.
(HB pages 151 156, errors in original)
Mr Fisher also comments on the complaint regarding noise.
Complaint Regarding Noise
37.The Mandegay report makes only brief reference to noise and does not demonstrate any measurement taken to provide any numerical assessment. Mr Seferovic himself refers, in his undated letter to the Strata Management written at some time after 6 April 2017, to an occasion on that date when wind speeds reached 10 m/s and that amplitude reached between 8 and 11 m/s. This is difficult to comprehend as amplitude is measured in units of height, e.g.mm and not m/s. No other reference to such measurements has been provided to me.
38.I do not doubt that some wind noise may occur during periods of high winds. However such wind noise is in the very nature of a steel sheet roof. The fact that Mr Seferovic's apartment is on the second floor and the sea is visible from the roof makes it particularly exposed, more so than any other apartment within the development. Mr Seferovic has in the past erected a glazed wind screen outside his front door to provide some physical protection from the wind. That is an owner's risk. In my opinion there was and is now no structural or roofing fault with the apartment. This has been addressed in the repairs undertaken. Wear and tear will, of course, continue throughout the life of the roof but I have seen no signs of excessive wear or vibration since the roof was replaced.
(HB pages 156 ‑ 157, errors in original)
Mr Fisher gave oral evidence at the hearing. He confirmed that he attended an inspection of the applicant's lot in June 2017, during which they conducted a water spray test, and no leaks were apparent. He confirmed that he went into the applicant's lot, and there 'were no leaks that we could see, and the leaks that he had referred to, apparently two leaks, did not appear to leak anymore' (T:189; 27.06.17):
THIES, MR: …Did you also go onto the roof? - - - Yes, we did.
And - - -? - - - I watched the – the water being sprayed onto the roof, and it drained as it should drain, and drained away.
And did you make any investigations in relation to noise complaints? - - -On the day, I was – I had previously been told that there was noise, and I listened while I was in the apartment to the hose pipe being poured onto the roof, and – because we had a mobile phone underneath within the apartment, and a mobile phone with the man holding it on the roof, we agreed that he was holding it above his head, and he's quite a tall guy, and so - - -
AFFLECK MR: The phone? - - -No, sorry, the hose pipe. And this, from a height of what would be probably two metres and a full-on hose, you could certainly hear it dropping onto the roof (indistinct) it was – what shall I say – it wasn't a highly specialised test, it was just what we were able to produce easily.
THIES, MR: And did you find any loose components on the roof? - - -No, not while I was there.
(T:189; 27.06.17)
…
THIES, MR: Can you describe how the old roof meets where the new roof which was installed on and the construction of that, to explain that to the Tribunal?- - -Yes.
AFFLECK MR: [HB] page 186. The roof we were just looking at?- - - [Mr Fisher] If – yes, if you look at 186, you will see that there is a flat flashing – I say flat; it's flat on the top of the flashing. It has vertical edges which go over three pans, as I recall it – sorry – two pans and three ridges, and that ensures that if any water does get under it, it drops into the pan and drops out at the appropriate sloped end. That flashing was made deliberately large because there was no absolute guarantee that one type of sheet would fit next to another type of sheet. They do have slightly different clipping arrangements, and so it's necessary to do something belt and braces to cover them.
THIES, MR: So that extends over the old roof by - - -?---It extends over the old roof as well as the new roof.
Yes. And you looked at that when you were up there last week?---I saw it ‑ ‑ -
Yes?--- - - - when I was up there last week, yes. It still appeared to be in good condition. I didn't pull it around to try and loosen it.
Yes. And was that a location you tested for water?---That was a location that was tested for water, yes, although I have to say that I have to take the word of the people who were testing it, because I was underneath at the time.
Yes. But you were in communication by mobile phone?---Yes.
So they were telling you that they were above that strip to - - -?---They walked all over the roof. I do not recall any conversation that was specifically about that strip, but the roof was tested in each panel.
So - - -?- - -That was done.
AFFLECK MR: (indistinct) each pan?- - -Each pan.
Each pan was tested?- - -Yes.
THIES, MR: So at that particular location where Mr Seferovic says there was a leak since the roof was put on, which is just inside the entrance doorway - - -?---That – I – I actually stood inside the entrance doorway when the hosepipe was being hosed all around the area of roof on top of the doorway, and did speak by mobile phone to the person doing the work up there.
So you're satisfied, are you, that there was no leak around that area?---I'm satisfied there was no leakage at all.
(T:201 202; 27.06.17)
…
[Mr Thies] Yes. I think – I don't want to make you repeat, but it's my own short-term memory problem. You were in the unit while someone was spraying water over the top of that area - - -?---Yes, I was. - - - in particular, the northwest bedroom?---Yes, I was. And there was no water coming through?---There was no water coming in to the northwest bedroom.
(T:204; 27.06.17)
…
[Mr Thies] Were there any aspects of the Klip-Lok installation guide that weren't complied with?---None that I know of, but if you would like to guide me to anything you want to consider, I'm happy to consider it.
(T:204; 27.06.17)
Mr Fisher also gave evidence that it was not possible for wind and water ingress to occur through the underside of the 40 millimetre KLIP‑LOK® panels as maintained by the applicant:
THIES, MR: On the same page that you've got – I think you're looking at [HB] page 234 and 235?- - -Yes.
If you can look at 235 and you will see various arrows done - - -?- - -Yes.
- - - which is Mr Seferovic's writing, and the words "wind vortex" - - -?---Yes. - - - which, as I understand it from Mr Seferovic, describes wind movement in different directions, possibly swirling and coming up the face of the wall, and his confliction is that air and possibly moisture can transgress through the under – or past the under surface of the roof sheeting – cladding and the top of the wall. Do you have an opinion about that?---Yes.
AFFLECK MR: (indistinct) the line of the blue arrows?---Yes.
THIES, MR: Yes. Yes?---Above where it states - - -
AFFLECK MR: Thank you?--- - - - [Mr Fisher] "wind vortex", it would appear that there are a series of arrows that go to – along the top line under the sheet towards the left and inside the building. That's the - - -
THIES, MR: Yes. That's what I'm talking about?---We're – we're referring to. Yes. In - - -
If you want me to qualify it, I will qualify and clarify my understanding of what Mr Seferovic is alleging here, but if you have – if wanting to continue, please do, otherwise I will just - - -?- - - [Mr Fisher] I – I think I can continue fairly easily. The – first of all, there – there obviously is wind. I wouldn't call it a vortex, where that is – wind does not naturally cause a vortex in those situations, but assuming that wind was able to travel upwards and leftwards, it would meet two – I think four barriers. The first is a – an angle. If you look at drawing P234, photograph P234, you will see that there is a grey coloured angle that has nestling in the corner of the angle a – an electrical conduit. The electrical conduit was there originally and actually had to be taken off so that the angle could be fitted. So the first thing that the – the air meets is that angle. That then minimises the holes. As you can imagine, they – there are holes above it where the peaks, as opposed to the troughs, are – of the sheets are, and those holes were then filled with silicone impregnated foam – expanding foam, which expands into place, and fills the gap, and there's no possibility of air getting through there. However, even if it did get through there, it would then meet the – initially either the insulation or the bracket for the insulation, and if you turn to my report at - - -
Maybe 166?---Now, the – I'm looking for the photographs in my report, which I think may be a little further on at 185. At 185, the bottom photograph shows you the two layers of insulation that go in there, and a bracket which holds down the top sheets. The air would, having got as far as the – well, let us say that it got through, although I don't believe it's possible – let us say it got through the foam strip, then it would meet the clip – imagine that the ridges of the sheets are clipped into place – and so it would meet the clip, and either side of that it would meet bulked up the insulation. The insulation goes right across there, and it would then, to get any draft in the apartment, need to go downwards, through an air gap between the insulation sheets and through a second layer of insulation, then through a straw ceiling to reach the interior of the apartment. There are – in fact, that makes it, I think, six barriers to air getting through. The – I would suggest that the chances of air getting through there are nil.
(T:191 193; 27.06.17)
Mr Fisher also confirmed on questioning by the Tribunal that the material used on the roof (KLIP-LOK® Classic 700 .48 BMT) was suitable for a monoslope flat roof with a one degree pitch (T:205 206; 27.06.17).
AFFLECK MR: Is that all right? Mr Fisher, page 174 (indistinct) book please. Below the paragraph 5 there's a heading "Minimum Roof Pitch" and I want you to read the words in black under that?‑‑‑
Minimum roof pitch, our unique anti-capillary side lap allows you to use Klip-Lok Classic 700 on roof pitches from as low as one degree (1 in 50) for a 0.48 BMT and two degrees, one in 30, for a 0.42 BMT.
And in this case you've used .48 so you can go down ‑ ‑ ‑?‑‑‑Point 48.
‑ ‑ ‑ to one degree (one in 50)?‑‑‑Yes.
Yes. Now I want you to turn over the page to page – sorry, figure 6, yes, page 178 and explain to the tribunal, in words of one syllable or less, what it means "our unique anti-capillary side lap"?
…
What's it talking about when it says anti-capillary side lap? What does that mean?
…
Right. Yes. The idea of capillary action is that water will travel naturally between two surfaces pulled up by the molecular forces generally making water travel shall I say. They refer to an anti-capillary side lap clearly deliberately to stop this action and prevent water from climbing up over the sheet and inside any – any area within the sheet.
As it does with corrugated sheeting?‑‑‑Indeed.
So it's the wiggles, if you like, it's also the cleat that holds it together but it's the wiggles if it breaks the capillary action, is that correct?‑‑‑That's correct, yes
Yes. Thank you very much. Good. Thank you.

Findings

Having considered the evidence, including documents, oral evidence, and submissions made at the hearing, the Tribunal makes the following findings:
1)There is a direct conflict between the expert opinions of Mr Fisher and Mr Mandegay on numerous issues. Where there is a direct conflict between their evidence, the Tribunal prefers the evidence of Mr Fisher for the following reasons:
a)The applicant did not tender any evidence to qualify Mr Mandegay as an independent engineering expert and it is not evident from the substance of his report that he is so qualified.
b)The applicant did not call Mr Mandegay as a witness to speak to his report, to address the numerous criticisms of Mr Mandegay's report made by Mr Fisher at paras 24 26 of Mr Fisher's report (HB pages 151 156), or to attest to his inspections, calculations or reasoning supporting his conclusions. Mr Fisher's expert report, to the contrary, was supported by his oral evidence and cross‑examination under oath at the hearing, and was tested by further questioning by the Tribunal's specialist Member (who is an engineer). In such circumstances, the Tribunal finds that Mr Mandegay's report merits less weight than the evidence of Mr Fisher, and the Tribunal prefers Mr Fisher's evidence to Mr Mandegay's evidence where they disagree.
2)The Tribunal finds that the evidence of Mr Smith and Mr Roiahn is of no assistance in determining any of the relevant issues. Mr Smith's evidence is to the effect that his 'look' at the applicant's roof was insufficient to constitute an inspection of the calibre required to support the applicant's case, and that he would be unwilling to conduct such inspection. Mr Roiahn's evidence was to the effect that rattling could be caused by the clip fixing, although he was unsure why this could happen because there was usually 'no problem with this system'. He suggests 'rib fixing' the roof sheets and further fixing of the drypan flashing. Mr Zillessen gave evidence that on about 24 November 2016, he undertook further fixing of flashing (T:25 ‑ 26; 24.10.17). Mr Fisher (T:203; 27.06.17) gave evidence that it is unnecessary and inappropriate to use fastening screws through the KLIP-LOK® sheeting. The KLIP-LOK® mechanism is sufficient to hold the panels together in a water-tight manner. The Tribunal prefers the evidence of Mr Fisher to Mr Roiahn on this point as he is evidently more familiar with the KLIP-LOK® system than Mr Roiahn, whose evidence suggests he does not appreciate that the KLIP-LOK® joins form a water-tight bond.
3)The Tribunal finds that the evidence of the applicant's lay witnesses is of little or no assistance in determining whether the roof over the applicant's lot is now, or has been since September 2014, subject to water or wind ingress or noise. None of the witness statements are specific enough to pin-point particular dates when water or wind ingress or noise occurred. Furthermore, apart from the joint evidence of Mr B Terasaki and Ms S Blettner, none of the statements is contemporaneous. From that statement (dated 9 December 2014) it would appear that there were some noise issues evident immediately following the 2014 works. This is consistent with the evidence of Mr Zillessen at [67] above. Mr Terasaki's and Ms Blettner's evidence does not assist on water or wind ingress to the applicant's lot. The remainder of the evidence may have referred to the period before or after the 2014 works, and as the witnesses were unavailable for examination or cross-examination, this question could not be clarified. For those reasons, it was unable to assist the Tribunal in resolving the factual disputes.
4)The Tribunal is not satisfied on the evidence that the strata complex was designed and built in a monocoque structure as maintained by the applicant. Although the applicant's expert Mr Mandegay attests to this in his report, it directly conflicts with Mr Fisher's conclusions at par 25 of his report that 'without doubt the original steel sheet was not designed as a monocoque membrane'. For the reasons outlined above, the Tribunal prefers and accepts the evidence of Mr Fisher to the evidence of Mr Mandegay on this issue. Furthermore, in the view of the Tribunal's specialist Member, the evidence presented does not support a finding that a monocoque roof was designed or constructed, and the use of a monocoque design would be highly unusual. Had the roof been designed or constructed as part of a monocoque structure, this would have been evident from the engineering drawings at HB page 119 certified by Reed Engineers Pty Ltd.
5)The Tribunal is not satisfied that that the removal of the original roof materials had any impact on the structural soundness of the strata complex and does not accept, on the evidence, that the building is no longer structurally sound by reason of the 2014 works.
6)The Tribunal is not satisfied on the evidence that the Lysaght KLIP-LOK® Classic 700 roofing materials were not fit for purpose as maintained by the applicant. The evidence tendered by the applicant does not support this contention for the following reasons:
a)In respect of the contention that Lysaght KLIP‑LOK® Classic 700 is not suited for use on a monopitched roof and can only be used to construct a dual-pitched roof: The applicant provided the Tribunal with no manufacturer specification, expert evidence or verifiable reference to any relevant provision of the Building Code of Australia or Australian Standard to support this contention. Other than the applicant's own lay interpretation of the KLIP-LOK® Design and Installation Guides (where at HB page 167 and HB page 175 it shows a illustrative diagram of a dual pitched roof) and his claims that he spoke to (but did not call to give evidence) Lysaght's Australian Chief Engineer, there is no basis for this contention. Both Mr Fisher (T:206; 27.06.17) and Mr Zillessen (T:14; 24.10.17) expressed the view that Lysaght KLIP‑LOK® Classic 700 is suited for use on a mono-pitched roof, and is used regularly (and successfully) in Perth for this purpose. The Tribunal is persuaded by their evidence, which is based on professional expertise rather than lay opinion.
b)In respect of the contention that Lysaght KLIP‑LOK® Classic 700 is not suited for use on a flat roof with a pitch of 1 degree (such as the roof of the strata complex): The applicant provided the Tribunal with no manufacturer specification, expert evidence or verifiable reference to any relevant provision of the Building Code of Australia or Australian Standard to support this contention. The Lysaght KLIP‑LOK® Classic 700 Design and Installation Guide (HB page 174) provides that the product is suitable for use 'on roof pitches as low as 1°', and Mr Fisher (T:196, 199, 205; 27.06.17), Mr Zillessen (T:38; 24.10.17), and Mr Fullerton (T:42, 43, 46, 55; 24.10.17) expressed the view that Lysaght KLIP-LOK® Classic 700 is suited for use at a 1° roof slope. The Tribunal is persuaded by their evidence, which is based on professional expertise rather than lay opinion.
c)In respect of the contention that Lysaght KLIP‑LOK® Classic 700 is not suited for use in the Fremantle area generally because it is a high wind area: The applicant provided the Tribunal with no manufacturer specification, expert evidence or verifiable reference to any relevant provision of the Building Code of Australia or Australian Standard to support this contention. In the absence of expert evidence to the effect that the wind in Fremantle exceeds the specifications for the product, the Tribunal is not satisfied that Lysaght KLIP-LOK® Classic 700 is not suited for use in the Fremantle area generally.
d)In respect of the contention that Lysaght KLIP‑LOK® Classic 700 is not suited for use on a 10 metre high building: The applicant provided the Tribunal with no manufacturer specification, expert evidence or verifiable reference to any relevant provision of the Building Code of Australia or Australian Standard to support this contention. In the absence of such evidence, the Tribunal is not satisfied that Lysaght KLIP‑LOK® Classic 700 is not suited for use on a building 10 metres in height.
7)The Tribunal is not satisfied on the evidence that the roof as constructed in 2014 is defective, insufficient or inadequate in any way. The evidence tendered by the applicant does not support this contention for the following reasons:
a)In respect of the contention that Lysaght KLIP‑LOK® sheets lift and open in windy conditions, allowing wind and water into the roof space above the applicant's lot, which then seeps/blows into the applicant's lot through the ceiling: The applicant provided the Tribunal with insufficient evidence to establish this contention. He confirmed that he has never personally seen this happen (T:66; 27.06.17). Mr Mandegay's report contends at HB 41 that the 'separate lose corrugate plates … under the pressure and force of the winds opening living space of the Unit 30 to the weather. With all consequence of producing unbearable noise and random water leaks [sic]'. Mr Mandegay does not, however, provide any factual or technical expert basis for his conclusion. His report does not refer to him having personally witnessed this phenomenon. Mr Mandegay was not called as a witness to enable him to be cross‑examined on this issue, or to respond to the evidence from Mr Zillessen to the effect that this is not possible. Accordingly, the Tribunal does not give weight to Mr Mandegay's evidence in this regard. Rather, the Tribunal prefers the evidence of Mr Zillessen (HB page 136 at para 29) that removal and separation of Lysaght KLIP-LOK® sheets requires a crowbar, a special technique, and significant force, and that once separated, the sheets would not simply snap lock back into position by wind pressure. It would require a substantial and specifically directed downwards force. The Tribunal is therefore not satisfied that it is possible for the Lysaght KLIP-LOK® sheets to lift and open in windy conditions, allowing wind and water into the roof space above the applicant's lot, which could then seep/blow into the applicant's lot through the ceiling.
b)In respect of the contention that Lysaght KLIP‑LOK® sheets lift and open in windy conditions, causing significant noise in the applicant's lot during storms: For the reasons identified above, the applicant provided the Tribunal with insufficient evidence to support this contention and the Tribunal is not satisfied that it is possible for the Lysaght KLIP-LOK® sheets to lift and open in windy conditions causing significant noise in the applicant's lot during storms.
c)In respect of the contention that water builds up on the KLIP-LOK® panels, transgresses the 40 millimetre high ridges, is wind driven into the KLIP-LOK® joints into the roof space above the applicant's lot, and then seeps into the applicant's lot through the ceiling: The applicant provided the Tribunal with insufficient evidence to support this contention. Mr Mandegay's report contends at HB page 37 that 'As when water on the top of the flat roof pushed by winds, start to 'lift up' or 'rollover' the roof and reaching the level over the corrugated ribs. The water must go in [sic]'. Mr Mandegay does not, however, indicate any basis for his conclusion. The Tribunal does not give weight to Mr Mandegay's evidence in this regard. His evidence is contrary to the evidence of Mr Fisher (T:198; 27.06.17) and Mr Fullerton (T:43, 54; 24.10.17). Mr Mandegay was not called as a witness to enable him to be crossexamined on this issue. In the circumstances, the Tribunal prefers the evidence of Mr Fisher and Mr Fullerton that this would be 'highly unlikely' to happen given the slope and rainfall capacity of the roof. The Tribunal is not satisfied that wind or water enters the applicant's lot in this manner as alleged.
d)In respect of the contention that wind and water ingress occurs through the underside of the 40 millimetre high ridges of the KLIP-LOK® panels because the area is not fully enclosed or sealed: The applicant provided the Tribunal with insufficient evidence to support this contention. Although Mr Mandegay's report contends that wind and water enter the applicant's lot because it is not properly enclosed, Mr Fisher's evidence is that Mr Mandegay's report is incorrect. Mr Fisher says it is not possible for water or wind ingress to occur through the underside of the 40 millimetre high ridges of the KLIP-LOK® panels because they are filled with silicon-impregnated foam which expands into place filling the gap, and making it impossible for air to get through (T:192; 27.06.17). Mr Fisher adds that even if it were possible, water and wind would be prevented from entering by further barriers, including the KLIP-LOK® clip mechanism, and on either side of that, the insulation, and then the ceiling material (T:193; 27.06.17). Mr Fisher gave evidence that the likelihood of wind or water ingress through this mechanism is 'nil'. There is no gap through which wind and or water can enter. Mr Zillessen (T:10 12; 24.10.17) and Mr Fullerton (T48 ‑ 49; 24.10.17) both confirmed that the siliconimpregnated foam was in fact installed. The photograph at HB page 185 confirms the installation of the insulation. Mr Mandegay was not called as a witness to enable him to be crossexamined on these issues, and the applicant's evidence confirmed that Mr Mandegay did not personally inspect the roof. Accordingly, the Tribunal does not give weight to Mr Mandegay's evidence in this regard. Rather, the Tribunal prefers the evidence of Mr Fisher, Mr Zillessen and Mr Fullerton that there is no gap through which wind and or water can enter. The Tribunal is not satisfied that it is possible for water enter the applicant's lot in this manner as alleged.
e)The Tribunal is further satisfied on the evidence of Mr Fisher (T:201 - 202; 27.06.17) that the dry‑pan flashing at the junction of the Lysaght KLIP-LOK® sheets and the Brownbuilt roof decking extends sufficiently over the Brownbuilt decking to prevent water ingress between the two different roofing materials.
8)The Tribunal accepts the applicant's evidence that there is some noise in the lot when strong winds blows. This is confirmed by the evidence of Mr H Clayton and Ms Atkinson, who were (separately) present during strong winds in October 2016. Ms Atkinson gave evidence that with the door closed, she could not hear any significant wind or noise from the storm (HB page 219 at para 12). Mr Clayton described the noise as 'wind generated noise' (T:71; 24.10.17); 'the sound of the wind. If you're out in 40 knots of wind it can be quite noisy, and if it's hitting a building, it seems to generate a little bit more noise … Just a semi-howling.' (T:73 ‑ 74; 24.10.17). The Tribunal is not satisfied on the evidence, however, that the wind noise is attributable to any current defect, insufficiency or inadequacy in the common property generally, or the 2014 works in particular. The Tribunal accepts Mr Fisher's evidence that the wind noise the applicant complains about is inherent in steel sheet roofing, and is not the result of a roofing fault or structural problem (HB page 156 at para 38).
9)The Tribunal accepts the applicant's evidence that from time to time in the past he has heard banging noises from the roof. The Tribunal is satisfied, however, that through maintenance any such issues have been adequately addressed. Mr Zillessen gave evidence that he attended at the applicant's lot on 18 August 2015, 24 November 2016, and 8 December 2016 to conduct inspections and further maintenance in respect of the 2014 works. Several minor maintenance issues were attended to at these visits, including replacing gutter straps, securing a PVC conduit, and securing a dislodged flashing (HB page 133). Maintenance of the roof is an ongoing obligation of the strata company, and the Tribunal is not satisfied there is sufficient evidence of any current defect, insufficiency or inadequacy in the common property generally, or the 2014 works in particular, which causes excessive noise when the wind blows. All of the witness statements tendered by the applicant (HB pages 53 58) pre‑date maintenance in December 2016 securing a PVC conduit over the applicant's lot (which the respondent identified as a potential source of noise). Furthermore, the evidence of Mr Liborio who lives in the unit next to the applicant's is to the effect that he has not heard banging, flapping or vibration noise coming from the roof, and although he can hear rain on the roof during heavy rains, it is 'not that loud' (HB page 91). Although the Tribunal accepts that the applicant genuinely believes the applicant's lot is uninhabitable because of excessive noise, the Tribunal is not satisfied on the evidence that there is presently any reasonable factual basis for this belief, or that any noise is attributable to a current defect, insufficiency, or inadequacy in the common property generally, or the 2014 works in particular.
10)The Tribunal is not satisfied on the evidence that the roof is presently a source of water ingress into the applicant's lot, or that it has been since the 2014 works were completed. The Tribunal accepts that the applicant believes he sustained water ingress through the roof on 5 February 2015 and 3 May 2015 to the areas near the main door (causing damage to the parquetry floor) and to his desk in the bedroom (causing the stain on the paper in photograph 10 at HB page 202). Nevertheless, the Tribunal is not satisfied on the evidence that the stains on the paper were necessarily caused by water ingress through the roof. The extent of the staining on the paper, and its colour, is indicative of the presence of some coffeecolour liquid. If this liquid had entered the applicant's lot through the roof and ceiling, one would expect to see similar staining on the ceiling in the area above the desk. The photographs of that area (photographs 4 and 5 at HB page 201) do not show any staining per se, only a ceiling with colour variations suggestive of incomplete and patchy painting with a brush or roller. The applicant gave evidence that he has not painted the ceiling in the applicant's lot since before the 2014 works (T:127; 27.06.17), so it is not possible that he has painted over the stain. This, and the absence of any expert evidence identifying how such water ingress could be possible after the 2014 works, leads the Tribunal to the conclusion that the stains on the paper have a source other than water ingress through the roof and ceiling.
11)Likewise, the Tribunal is not satisfied on the evidence that the applicant sustained water ingress through the roof on 5 February 2015 or 3 May 2015 to the area near the main door (causing damage to the parquetry floor). The evidence of Mr Zillessen (HB page 132), Ms Clayton (HB page 188), and Ms Atkinson (HB page 219) was that at an inspection on 18 August 2015, there was no visible damage to the parquetry floor as alleged by the applicant. Furthermore, there is no water staining evident in the photographs of the relevant area at HB page 194. The applicant gave evidence that he has not painted the ceiling in the applicant's lot since before the 2014 works (T:127; 27.06.17), so it is not possible that he has painted over the stain. This, and the absence of any expert evidence identifying how such water ingress could be possible after the 2014 works, leads the Tribunal to the conclusion that any wetness the applicant says he felt in the area has a source other than water ingress through the roof and ceiling.
12)Furthermore, the Tribunal is satisfied on the evidence of the spray test conducted in June 2017 and the expert and factual evidence tendered by the respondent that water ingress is not presently an issue. The applicant has tendered no evidence of any water ingress since 2015.
13)The Tribunal is likewise not satisfied on the evidence that the roof is presently a source of air ingress into the applicant's lot, or that it has been since the 2014 works were completed. The Tribunal does not accept the applicant's contention at T:147; 27.06.17 that the roof space is not insulated. This is contrary to the evidence of Mr Zillessen, Mr Fisher, and the photograph at HB page 185, and the applicant's contention undermines the credibility of his claim that the wind comes from under the roof and 'pressuris[es] air in my ceilings and leak[s] aside these straw mats [ceiling panels]' (T:147; 27.06.17) such that it 'take[s] you[r] breath' (T:148, 149; 27.06.17), and creates 'a vacuum inside'. The evidence of Mr Zillessen (HB page 132), Ms Clayton (HB page 188), and Ms Atkinson (HB page 219) was that during an inspection on 18 August 2015, they felt no wind or associated dust particles entering the lot. Furthermore, during an inspection on 16 November 2016, Mr Zillessen looked for, but was unable to locate, any wind penetration point into the applicant's lot other than what may naturally occur through the top of the kitchen exhaust fan duct (HB page 133). Mr Zillessen said he considered some downward movement of air through the flue into the kitchen fan to be normal during extreme weather conditions for the location (HB page 136). This evidence, combined with the absence of expert evidence identifying how air ingress could be possible after the 2014 works, leads the Tribunal to the conclusion that the applicant's evidence on this point lacks credibility and should be given little weight.
14)Although the Tribunal accepts that the applicant genuinely believes the applicant's lot is uninhabitable because of wind and water ingress, the Tribunal is not satisfied on the evidence that there is presently any reasonable factual basis for this, or a finding that the roof is the source of any wind and water ingress, or that wind and water ingress is attributable to any current defect, insufficiency, or inadequacy in the common property generally or the 2014 works in particular.
15)For the reasons set out above, the Tribunal is not satisfied that the roof over the applicant's lot, as replaced during the 2014 works, is not in good and serviceable repair and or not properly maintained. To the contrary, on the evidence presented, the Tribunal is satisfied, and so finds, that the roof over the applicant's lot, as replaced during the 2014 works, is in good and serviceable repair and properly maintained. It is fit for purpose and functioning appropriately. The Tribunal is satisfied that it is not in need of renewal or replacement.
16)In light of the above findings, the Tribunal is not satisfied that after the 2014 works, the applicant's lot was damaged by water ingress attributable to the 2014 works.

Conclusion

Based on the above findings, the Tribunal is not satisfied that the respondent is presently, or has been at any time since September 2014, in breach of its obligations pursuant to s 35(1)(c) of the ST Act in respect of the roof over the applicant's lot. Accordingly, the application must be dismissed.
The respondent seeks an order for costs. The ST Act is clear on this point. Section 81(7) of the ST Act, provides that the Tribunal 'cannot make any order for the payment of costs in connection with an application for an order', with two exceptions. As noted by the Tribunal in The Owners of St John's Court – Rivervale Strata Plan 6052 and Clark [2010] WASAT 126 [69]:
The respondents' application for costs is misconceived. By virtue of s 5 of the SAT Act, in the event of any inconsistency between it and the enabling legislation under which the Tribunal exercises jurisdiction, the provisions of the enabling Act apply. Accordingly, none of the cost provisions of the SAT Act have any application in the face of s 81(7) of the ST Act which provides that the Tribunal cannot make an order for the payment of costs in connection with an application except in two particular circumstances.
Neither of the two exceptions applies in this case. Accordingly, the respondent's application for costs is misconceived and is dismissed.

Orders

The Tribunal orders that:
1.The application is dismissed.
2.There is no order as to costs.

I certify that this and the preceding [83] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS K WHITNEY, MEMBER