Selkirk v The Owners - Strata Plan No 2661 (No 2)

[2025] NSWCATCD 70

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Selkirk v The Owners – Strata Plan No 2661 (No 2) [2025] NSWCATCD 70

Hearing dates:

On the papers, last submissions received 1 July 2025

Date of orders:

14 July 2025

Decision date:

14 July 2025

Jurisdiction:

Consumer and Commercial Division

Before:

D Robertson, Principal Member

Decision:

(1) Pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) a hearing in respect of the respondent’s Miscellaneous Matters Application filed on 30 May 2025 is dispensed with.

(2)      The Miscellaneous Matters Application is dismissed.

(3)      The respondent is to pay the applicant’s costs of the Miscellaneous Matters Application as agreed or assessed.

Catchwords:

CIVIL PROCEDURE – Civil and Administrative Tribunal Act s 41 – extension of time for compliance with orders – applicable principles

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Strata Schemes Management Act 2015 (NSW)

Cases Cited:

Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104

Mania v NSW Land and Housing Corporation [2022] NSWCATAP 376

The Owners – Strata Plan No 93804 v M Services & Maintenance Pty Ltd [2024] NSWCATCD 54

Texts Cited:

Nil

Category:

Consequential orders

Parties:

Simone Selkirk (Applicant)
The Owners – Strata Plan No 2661 (Respondent)

Representation:

Counsel: A Rizk (Applicant)

Solicitors: Sachs Gerace Lawyers (Applicant)
Mills Oakley (Respondent)

File Number(s):

2024/00071125

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. On 30 December 2024 I published orders in this matter, which included orders (the Work Orders) requiring the Owners – Strata Plan No 2661 (the Owners) to undertake work as follows:

“(3)   [T]o engage a suitably experienced, qualified, licensed and insured contractor to undertake repairs to the brick walls in the bathroom of Lot 5 in Strata Plan No 2661 sufficient to ensure that tiling and/or a waterproof membrane can be applied to the walls.

(4)   [T]o engage a suitably experienced, qualified, licensed and insured contractor to carry out investigations in relation to the kitchen side of the wall dividing the kitchen from the bathroom of lot 5 in Strata Plan No 2661 with a view to determining the nature and causation of any defects in that wall and devising an appropriate rectification scope.”

2. The Work Orders required the Owners to complete the work within two months of the publication of the decision, that is by 28 February 2025.

3. By a Miscellaneous Matters Application filed on 30 May 2025 the Owners have sought an extension of time to comply with the Work Orders until 30 September 2025.

4. The applicant opposes the grant of an extension of time.

5. On 4 June 2025 I made orders for the filing and exchange of submissions concerning the Owners’ application for an extension of time. The Owners filed submissions on 11 June 2025, together with a statement of Elizabeth Boots dated 10 June 2025 and Exhibit EB-1. The applicant filed submissions on 25 June 2025, and the Owners filed submissions in reply on 1 July 2025.

6. Ms Boots’ statement sought to explain the delay in completion by the Owners of the work the subject of the Work Orders.

7. Ms Boots is, and has been since 31 March 2021, the chairperson of the Owners’ strata committee.

8. Ms Boots’ evidence, which is not the subject of contest, as far as it goes, sets out the following chronology:

1. The Owners’ strata manager commenced seeking quotations for the carrying out of the works on 28 January 2025, that is four weeks after the orders. In light of the time of year I consider that delay to have been understandable and, if an extension of time had been sought at that time, I would have had no hesitation in granting an extension of time of one month.

2. A tradesperson undertook an inspection of the applicant’s apartment on 5 February 2025 and indicated that an engineer’s report and a scope of works would be required.

3. On 7 February 2025, Landlay Consulting Group Pty Ltd supplied a fee proposal for the preparation of a scope of works.

4. On 10 February 2025, the strata committee instructed the strata manager to obtain a further fee proposal, which was provided by Noviion Engineering that day.

5. On 14 February 2025, the Owners’ solicitors wrote to the applicant’s solicitors seeking the applicant’s agreement to a six week extension of time for compliance with the Work Orders.

6. On 17 February 2025, the strata committee sought a reduction in fees from Noviion Engineering, which was agreed to.

7. However, the strata committee decided not to proceed with either fee proposal and instead communicated directly with two building firms, Sydney Wide Building Services and Easy Trades, asking whether those firms would carry out the works without an engineering scope of works.

8. On 18 February 2025, the strata committee received an email from Easy Trades which indicated:

“We don’t believe an engineer will be required, however this will be determined once we go on site to review for quoting.”

9. The email also stated:

“[T]he plumbing works will be required to be completed before any wall repairs are made. All plumbing works for the bathroom are set in the render which will cause the owners a lot of issues when completing the bathroom if it is rendered before plumbing works are complete.”

10. The email incorporated a photograph of the bathroom, which appears to show some pipework in situ within the walls, and other pipework detached from the walls.

11. Between 17 February and 3 March 2025, the strata manager, under instruction from the strata committee, sought further quotations from other builders.

12. Sydney Wide Building Services provided a quote on 3 March 2025. This quote related only to the first Work Order, that is Order 3 requiring the repair of the bathroom walls.

13. On 4 April 2025, the strata committee approved the acceptance of the Sydney Wide Building Services quote.

14. On 8 April 2025, the Owners solicitors emailed the applicant’s solicitor advising that the strata committee had “approved to proceed with the attached quote submitted by Sydney Wide Building Services”. The email also stated:

“We have also been advised that there will also be a need for Unit 5’s bathroom contractor to liaise with the Owners’ contractor with respect to the render.”

15. On 1 May 2025, the strata committee received a quote from Easy Trades with respect to the repair of the kitchen wall.

16. On 9 May 2025, the Owners’ solicitors emailed the applicant’s solicitor, asking:

“Could you please advise whether your client’s bathroom contractor can liaise directly with the Owners Corporation’s contractor?”

17. It does not appear there was any response from the applicant or her solicitors to that email.

18. On 2 June 2025 the Owners’ solicitors emailed the applicant’s solicitors:

“We are instructed that Easy Trades cannot carry out the works in accordance with order 3 until Ms Selkirk’s bathroom works have first been carried out. Further, we are instructed that the kitchen works cannot commence in accordance with order 4 until the bathroom is rectified. Essentially, the Owners cannot carry out the works the subject of the orders until such time that Ms Selkirk’s bathroom works are complete.”

19. The applicant’s solicitors responded the same day:

“Can you please identify specifically what works are required to be completed prior to the OC being in a position to complete its works scope.

If there is a written communication from Easy Trades, please provide it.”

20. On 4 June 2025 the Owners’ solicitors wrote to the applicant’s solicitors. That letter included the following:

“1.1   We are instructed that any plumbing works will be required to be completed before any wall repairs are made. All plumbing works for the bathroom are set in the render. Whilst the works can be undertaken it will create significant issues for Ms Selkirk when completing the balance of the bathroom works if the walls are rendered before plumbing works are completed.

1.2    As such, we are attempting to organise and allow Ms Selkirk to carry out necessary plumbing works before the walls are rendered making access to the pipework almost impossible. Once the plumbing works are completed, the repairs work ordered by the Tribunal to be carried out by the Owners can be undertaken.

1.3    We are instructed that the above was first communicated via telephone to the Owners’ strata manager on 18 February 2025, then followed up via the enclosed email.”

21. The letter attached the email from Easy Trades of 18 February 2025.

Owners’ submissions

9. The Owners submitted that they had taken all reasonable steps to comply with the work orders.

10. They submitted that:

“The execution of the work orders has disclosed that the works required to the brick wall surrounding the bathroom are interconnected with other works to the bathroom that are not the subject of the Work Orders. The Tribunal has made no orders in the s 106 proceedings requiring the Owners Corporation to undertake any plumbing works. However as pointed out by Easy Trades, the Owners Corporation’s rectification of the brick walls cannot be undertaken until the plumbing infrastructure for the new bathroom itself has been installed within the walls.”

11. The Owners submitted that the works required by Order 3 “cannot be undertaken independently of the bathroom works, as the bathroom works require installation of the plumbing pipework and other apparatus.”

Applicant’s submissions

12. The applicant submitted that:

“[T]he evidence adduced by the OC is woefully inadequate in explaining the delay.”

13. The applicant identified four periods:

1. 31 December 2024 to 27 January 2025;

2. 3 March 2025 to 4 April 2025;

3. 5 April 2025 to 1 May 2025; and

4. 9 May 2025 to 11 June 2025,

during which, she submitted, the Owners appear to have done nothing.

14. The applicant further submitted that:

“[B]y 3 March 2025, the OC had received three quotes [including Easy Trades and Sydney Wide Building Services]. It was still in a position to have at least the brickwork repairs carried out relatively close to the deadline.”

15. The applicant submitted:

“17   The closest the OC comes to justifying its failure is to say that the brickworks cannot be done unless Ms Selkirk undertakes certain plumbing works. That is not an adequate or satisfactory explanation. The OC cannot seek to defer compliance with Tribunal Orders by suggesting that Ms Selkirk needs to undertake certain works. The Tribunal’s orders are not conditional. They must be complied with. The OC could have sought to appeal the Work Orders or sought to vary / set them aside at the appropriate juncture. It did not do so, and the Work Orders must be complied with in their present form.

18   Further, if certain works are a necessary precondition to the brickwork repairs, then the OC should carry out those works as incidental or as preparatory to the existing Work Orders. That is particularly where the OC has not even sought to establish whether the relevant plumbing is common property or lot property (and in fact, as the walls in question appear to involve lot boundary walls, any plumbing contained therein is highly likely to be common property and the responsibility of the OC to remediate in any event).”

16. I note immediately that the last sentence of that submission fails to acknowledge my findings in the substantive decision at [201]-[206].

17. The applicant also submitted that the evidence that plumbing work is necessary before the walls can be repaired is “weak at best”. The applicant further pointed out that it is Sydney Wide Building Services, not Easy Trades, who, according to Ms Boots’ evidence, have been retained to carry out the bathroom works.

Owners’ reply submissions

18. The Owners submitted that the applicant’s submissions “ignore the contribution to delay on account of the Owners Corporation waiting for a response from the applicant herself.”

19. The Owners submitted that it had, through its solicitors, advised the applicant’s solicitors that the applicant’s bathroom contractor would need to liaise with the Owners’ contractor with respect to the render on 8 April 2025, that that request was followed up by the Owners’ solicitors on 9 May and 2 June 2025 and that only on 2 June 2025 did the Owners’ solicitors received a response requesting specific identification of the works required to be completed before the Owners would be in a position to carry out the works.

20. The Owners submitted “that the steps it has taken between 31 December 2024 to date demonstrate a clear willingness to comply with the work orders.”

Consideration

21. My directions of 4 June 2025 indicated that, “subject to any submissions to the contrary made by the parties” the Tribunal would determine the application for an extension of time on the basis of the written submissions and without a hearing. Neither party indicated that they sought a hearing in respect of the application for an extension of time.

22. Having read the submissions, I am satisfied that the question for determination can be adequately determined on the basis of the written submissions and I will make an order pursuant to section 50 of the Civil and Administrative Tribunal Act 2013 (NSW) dispensing with a hearing of the Miscellaneous Matters Application.

23. Section 41 of the Civil and Administrative Tribunal Act 2013 (NSW) gives the Tribunal power to extend the time for “for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction”. That includes the extension of time for compliance with orders of the Tribunal: Mania v NSW Land and Housing Corporation [2022] NSWCATAP 376 at [36].

24. In The Owners – Strata Plan No 93804 v M Services & Maintenance Pty Ltd [2024] NSWCATCD 54 at [24]-[30] I considered the principles governing the exercise of the discretion to extend time for compliance with orders. It is not necessary to repeat what I said there.

25. In the circumstances of this case, the factors relevant to the exercise of the discretion include, paraphrasing Ipp JA in Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104 at [43]:

1. The attempts that have been made to comply;

2. The length of the delay;

3. The reasons for the delay;

4. Whether the delay was deliberate (although I note there is no suggestion to that effect in this case);

5. The conduct of the parties generally; and

6. The hardship or prejudice caused to the Owners by refusing the extension of time or to the applicant by granting it.

26. Having considered the application of those factors in the light of the evidence and the submissions of the parties, I am not persuaded that time for compliance with the Work Orders should be extended.

27. As the applicant points out, there have been substantial periods during which it is not apparent that the Owners were doing anything to comply with the Work Orders.

28. As noted above, I accept that the timing of the decision on 30 December 2024 may have warranted some extension of time by reason of the Christmas shutdown in the building industry, but no good reason has been shown why the work could not have been completed well before now.

29. The Owners appear to have altered course at least once and possibly twice in terms of the contractors to be retained yet have provided no explanation for that decision.

30. Although the Owners are correct in submitting that the applicant did not (either directly or through her solicitors) respond promptly to correspondence from the Owners. I do not find that the applicant’s failure to respond was a substantial cause of the Owners’ delay in complying with the Work Orders. The correspondence from the Owners and their solicitors, to the extent it is included in the evidence before me, was opaque and, prior to 2 June 2025, included nothing to suggest that the works would be delayed by any conduct or failure to act on the part of the applicant.

31. It is not obvious to me why the Owners seek an extension of time for compliance with Order 4, the second Work Order, relating to the kitchen. Order 4 only required the Owners to carry out investigation of the kitchen wall. That was the order which the Owners conceded that I should make. The quotation dated 1 May 2025 from Easy Trades identifies a scope of works for repairs to the kitchen wall, including the door frame and skirting, the preparation and skim coating of the kitchen walls, and preparing and painting the kitchen walls.

32. I do not for the purposes of this application make any determination in relation to whether the obtaining of the quotation is sufficient compliance with Order 4, but there is no evidence to suggest that the Owners need more time to undertake further investigations.

33. The Owners appear to concede that they have not complied with Order 4. Nevertheless, they have not provided any explanation of why compliance with Order 4 has not been possible. The order which became Order 4 was one which, in their written submissions in respect of the substantive decision, the Owners conceded should be made. Implicit in that concession is an acknowledgement by the Owners that the order can be complied with within a reasonable time and without any preconditions.

34. I do not consider that the issue raised by Easy Trades concerning the plumbing in the bathroom should be an obstacle to the completion of the work the subject of Order 3.

35. The Owners conceded in their written submissions in respect of the substantive decision that they were responsible for the repair of the brickwork in the bathroom. They suggested an order should be made requiring them to pay the cost of repair. While I concluded that it was appropriate to make a work order, rather than award the cost of repair, it was implicit in the Owners’ concession regarding responsibility for the cost of repair of the brickwork that the brickwork could be repaired independently of the other work required to restore (or renovate) the bathroom. If the brickwork cannot be repaired independently of other work, then an extension of time is not going to resolve that issue.

36. The applicant maintains that the evidence does not establish that the plumbing in the bathroom needs to be repaired or replaced before the work the subject of Order 3 can be carried out. She has made her position clear. The applicant will not later be heard to suggest that the plumbing in the bathroom did in fact need to be repaired or replaced before the work the subject of Order 3 could be carried out.

37. The work required by Order 3 is to prepare the walls for the application of waterproofing. The only indication, from any person with building expertise, of the extent of problems likely to be created is the statement in the email from Easy Trades of 18 February 2025 that it would “cause the owners a lot of issues when completing the bathroom”. Common knowledge of building procedures and practices would suggest that pipework can be installed and/or replaced, after the walls have been prepared for the application of waterproofing, without complete destruction of the work carried out on the walls in accordance with Order 3. Some damage to the render might be involved but that would be localised and able to be repaired relatively easily.

38. I do not purport to determine the question whether Order 3, properly construed, required the Owners to undertake the repair or replacement of pipework before repairing the walls. I will say only that it is not immediately obvious why that would be the case. If the parties cannot resolve that issue amicably, a further application may be necessary.

39. If the applicant elects not to cooperate with the Owners in ensuring that such pipework as she wishes to be installed in the bathroom is so installed before the Owners carry out work to repair the walls, then that may have consequences in relation to the fitting out of the bathroom, when and if the applicant obtains the consent of the Owners to that work pursuant to s 108 of the Strata Schemes Management Act 2015 (NSW).

26. The prejudice to the Owners from the refusal of the extension of time may be that they are exposed to the imposition of a penalty for failure to comply with orders of the Tribunal. There is a suggestion in the submissions that the applicant has already made application for the imposition of a penalty. It would be inappropriate for me to say anything about the possible outcome of such an application.

27. The applicant maintained in her submissions that the Owners’ failure to carry out the works required by the Work Orders was causing continuing loss of rental income. She did not tender any evidence of the steps she has taken to ensure the bathroom can be repaired or renovated promptly once those works are completed or whether, and to what extent, the repair or renovation of the bathroom has been delayed by the Owners’ failure to complete those works.

28. I am not persuaded that prejudice to either party carries significant weight in determining whether an extension of time for compliance with the Work Orders should be granted.

29. Because I am not satisfied that the Owners have fully or satisfactorily explained the reasons for delay, and because the delay is substantial, I decline to extend the time for compliance with the Work Orders.

Costs

44. The applicant’s submissions sought that the Miscellaneous Matters Application be dismissed with costs. The application is brought in proceedings to which rule 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) applies. Accordingly, special circumstances are not necessary before I may make an order for costs.

45. The application will be dismissed. Costs should follow the event. Accordingly, I will order the Owners to pay the applicant’s costs of the Miscellaneous Matters Application.

orders

46. My orders are:

1. Pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) a hearing in respect of the respondent’s Miscellaneous Matters Application filed on 30 May 2025 is dispensed with.

2. The Miscellaneous Matters Application is dismissed.

3. The respondent is to pay the applicant’s costs of the Miscellaneous Matters Application as agreed or assessed.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 18 September 2025