Shousha v The Owners Strata Plan 2657

[2021] NSWCATCD 6

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Shousha v The Owners Strata Plan 2657 [2021] NSWCATCD 6

Hearing dates:

15 December 2020

Date of orders:

21 May 2021

Decision date:

21 May 2021

Jurisdiction:

Consumer and Commercial Division

Before:

Member Paull, Senior Member

Decision:

1. The Respondent at its own cost is to remove all existing windows and associated security bar grills and fly screens from lot 2 in that strata scheme and replace those windows with new aluminium windows to be attached to new frames and reinstate the removed security bar grills and fly screens.

2. In complying with Order 1 the Respondent is to engage properly qualified and licensed tradespersons, commence the work within 6 weeks of these orders taking effect and complete the work within 2 weeks of commencement.

3. Application SC20/06873 is otherwise dismissed.

4. The Parties have until 31 May to seek leave to apply for costs.

Catchwords:

Owners Corporation’s obligation to maintain common property.

Legislation Cited:

Strata Schemes Act 2015 (NSW)

Category:

Principal judgment

Parties:

Samir Shousha v The Owners SP 2657

Representation:

Mr Rivera, Rivera Legal for the Applicant.
The Respondent-self-represented.

File Number(s):

SC20/19171

Publication restriction:

Nil

REASONS FOR DECISION

1. These proceedings came before me for the first time on15 December 2020, for substantive hearing.

2. The applicant lot owner in SP 2657 tendered a medical certificate and sought to be represented by Mr Rivera, solicitor. In light of the medical evidence, this unopposed application was granted.

3. The respondent, being the Owners Corporation of the subject strata scheme, was represented by Mr Loho, Secretary of the Strata Committee.

Background

4. The applicant owns two separate lots in SP2657, being lots 1 and 2, which he leases as investment properties.

5. In bringing these proceedings against the respondent Owners Corporation of that scheme, the applicant claims that the respondent is in breach of its obligations under the Strata Schemes Management Act 2015 (the SSMA) to maintain and repair the common property, in particular the common property windows pertaining to his lots.

6. The applicant seeks monetary redress and the replacement of the windows and timber frames in Lot 2.

The matters in dispute

The Lot 1 Windows

7. The applicant maintains that all windows in this lot were replaced in June 2009, mainly by Windowline, who was engaged by the respondent.

8. The applicant says that as part of this process he made a direct payment to Windowline in June 2009, for $2578.00, which sum he now seeks from the respondent.

9. The applicant also seeks reimbursement of $2,200 which he says he paid to “another company”.

10. The applicant maintains that he made these payments as part of an agreement he reached with the respondent at a time when the respondent did not have the funds to meet its obligations under the SSMA to repair the windows.

11. The applicant states that he has repeatedly tried to recoup this sum from the respondent over the years and now brings these proceedings seeking a money order for the $2,200 he says he paid to the unnamed contractor and the $2578 he says he paid to Windowline, plus interest.

12. The respondent agrees that the windows in issue are common property.

13. At first the respondent was unsure if it had replaced all the Lot 1 windows, but as the hearing progressed the respondent appeared to agree that this was the case.

14. The Respondent was also initially unsure as to whether, as the applicant alleges, it entered into an agreement some time in 2009, for the applicant to pay the contractors directly for some of the Lot 1 windows. At the conclusion of the evidence and in its oral submissions, the respondent denied any such arrangement.

The Lot 2 Windows

15. Although the applicant concedes that the respondent rectified the kitchen and bathroom windows in Lot 2, he disputes the workmanship and it appears he now seeks the replacement of all windows.

16. The respondent does not refute the need for this, however, a dispute arose between the parties as to who bears the responsibility for the security grill bars in place. This matter remains a sticking point. There is a similar issue in regard to the flyscreens.

17. The applicant complains that some 3 windows in the lot are screwed down to stop them from opening.

18. The applicant seeks a work order for the respondent to replace the windows in the lot which includes removing and replacing the security grill bars.

19. The respondent acknowledges no defective work in relation to the bathroom and kitchen windows it has rectified.

20. The respondent agrees that it has not replaced the other Lot 2 windows, having done so for windows relating to other lots, saying that this is because the applicant has been un-cooperative.

21. When all the evidence panned out at the hearing, it appeared that there is agreement that the Lot 2 windows need replacement. Whether the existing wooden window frames remain and whether the respondent is liable for the removal and reinstatement of security bar grills and fly screens, remains in issue.

The car space

22. The applicant seeks compensation for what he alleges was the respondent’s unauthorised use, for a 1 week period, of the Lot 2 car space in June 2016, at $80 per week.

23. The respondent disputes using the car space, pointing out that the applicant has failed to point out who exactly is said to have used the car-space. In the manner alleged.

Personal items

24. The applicant seeks $3771 compensation from the respondent on the basis that the respondent disposed of his personal items, putting them in the garbage, in May 2016.

Loss of rental for Lot 2

25. The applicant seeks $460 per week from May 2019 and ongoing, totalling some $34,500 at the time of initiating these proceedings.

26. The applicant relies on evidence from Mr Paul O’Donnell (whose report is in evidence) to argue that as a result of the window issues, lot 2 is uninhabitable.

27. The respondent refutes any liability for the rent claimed.

Findings on the matters in dispute

The Lot 1 windows

28. The difficulty the respondent has is that due to the considerable time that has now lapsed since the agreement alleged by the applicant, whereby the applicant was to pay the contractors directly for the window repairs and be reimbursed, there has been a change in the membership of the strata committee. The respondent has no collective knowledge or memory of the matters the applicant alleges.

29. That said, the applicant must still be put to the task of proving his case and he has not augured well in this regard.

30. It appears that the applicant has been attempting without success since at least 2011, to have the respondent (as then constituted) recognise any such agreement (see for example, the AGM Notice March 2011).

31. Thus it must be assumed that as long ago as 2 years after the event, the respondent, as then constituted, did not appear to recognise the agreement the applicant now seeks to enforce several years later.

32. Further and most relevantly, the applicant has no documentation or any other substantive evidence to support if an agreement was reached; if so, when; and if so, what terms were agreed upon with the respondent over payment of the windows.

33. The applicant’s very loose and general account of a transaction he says was agreed to in 2009, whereupon he was to pay for some window repairs that were the respondent’s responsibility, is not particularised or substantiated in any way.

34. True, it is, that the applicant has produced an email from Windowline which refers to a “Total job value “of $7291” and that $2758 was “received from Samir” (the applicant) and $4713 from “Strata”.

35. There is, however, no particularisation or elaboration as to what exactly these amounts relate to and certainly nothing to support a case that the applicant paid the $2758 on the basis of an agreement reached with the respondent, whereby he was then to be repaid by the respondent at some later date.

36. The applicant’s situation is even more tenuous in respect of the $2,200 he says he paid to an unidentified contractor.

37. As the respondent quite persuasively submits, the matters in issue go back over 10 years and it seems rather curious that the respondent at that time made a decision to replace windows if it had no funds to do so and even more incredibly, that the respondent would enter into a particular arrangement only with the applicant, 1 lot owner in a 21 lot scheme.

38. It is convenient to address here the points made by the applicant‘s solicitor (in relation to this and other matters in dispute) concerning the conduct of the respondent’s case.

39. Firstly, that the respondent has not raised evidence to rebut that of the applicant and has not cross-examined the applicant on many of the matters in dispute.

40. In relation to the latter point, it must be remembered that the respondent was self-represented and so although given the opportunity to cross-examine, the respondent’s ability to do so was limited. There is no doubt from the matters put forward by the respondent that it took direct issue with many parts of the case presented by the applicant.

41. In relation to the evidence issue, it is not correct to say that the respondent produced no evidence. Mr Loho gave evidence, as did Mr Pavo, before the Tribunal. The respondent relied on the documents marked R1 in contradicting the applicant’s case. Once again it must be kept in mind that the respondent was self- represented.

42. Before continuing, it is also convenient to note here, for completeness, two further matters

43. One is that given the time that has elapsed since the alleged agreement, there is real concern that the applicant is statute barred from suing on an agreement going back to 2009.

44. The other is that to make the money order sought, the Tribunal must find its powers under the Strata Schemes Management Act 2015 (the SSMA).

45. The applicant argued that he is entitled to bring this application as an “interested person” being a lot owner (see s226(1)(d).

46. While this may be the case, the Tribunal must still be empowered to make the specific order sought.

47. I am not completely convinced that there is any specific provision in the SSMA that allows the Tribunal to make the order sought for the matters here in issue.

48. In light of my findings on the facts, as outlined above, it is not necessary to pursue these matters any further and I dismiss this part of the claim.

The Lot 2 windows

49. The applicant relied primarily on the expert evidence of Mr O’Donnell, whose report, as I have noted, is in evidence and marked A1.

50. While, as the applicant submitted, its evidence was not directly refuted, it is not the case that it must automatically accepted. Like all evidence it must be examined and evaluated.

51. Mr O’Donnell only examined the windows in Lot 2. In his opinion full replacement of the windows and frames is necessary. In particular, he gave evidence that the frames of the bathroom and kitchen windows (being the windows it is agreed the respondent has rectified) have rot and that what is required is to remove them, replace the frame and reinstall windows.

52. As the security bar grills are located internally, Mr O’Donnell opined that they must be removed to allow the window replacement but that once this is done they can be re-used. In his opinion these grills are an “annexation” to and hence “part of “the windows and allow the windows “to function”.

53. These matters were ventilated in the examination and questioning of the evidence before the Tribunal. On further questioning Mr O’Donnell admitted that the windows could function quite independently of the security bar grills and that in his costings he had priced for new items.

54. Mr Loho gave evidence that as a member of the strata committee for the last 2 years and as a lot owner who has resided in the premise for some 4 years, he was aware that the scheme’s common property windows were rotting and that this prompted the respondent to take action in relation to replacing windows throughout the building. As a result, all windows have been replaced except those in Lot 2.

55. According to the respondent the applicant’s indecisiveness on whether to allow for repair or replacement; and responsibility for the security bar grills, are the cause of this.

56. Mr Loho gave further evidence that where the windows with security bar grills were replaced in the scheme (except those pertaining to lot 2) the lot owners at their own expense have had those bars removed and reinstalled. Mr Pava, for the respondent, also gave evidence that this was the case.

57. While in cross-examination Mr Loho agreed that the respondent had not produced any evidence to substantiate this point, he remained adamant that this was the case and elaborated on his experience with his own lot, located on the ground floor near Lot 2, where, at his own expense he had paid for the removal and reinstallation of the security bar grills at a rate of $80 per bar per window plus GST.

58. It was the applicant’s submission that Mr O’Donnell’s evidence that the lot 2 windows, including the repaired kitchen and bathroom windows, do not function; that the frames are rotting; and that the security bar grills are part of the windows, stands unrefuted and that he was not cross-examined on this evidence and hence it should be accepted.

59. I have already dealt above with the issue of cross-examination. I have also stated the need to evaluate and consider the O’Donnell evidence in light of the other matters put to the Tribunal.

60. The respondent submits that although the parties originally agreed to the supply and installation of aluminium bathroom and kitchen windows (see the Sale Order at page 6 of the respondent’s documents) the applicant kept changing his mind between whether the way forward was replacement or repair.

61. It was also the respondent’s case that the replacement of the windows in Lot 2 was hindered by the security bars dispute, a delay caused by the applicant and which may have contributed to further deterioration in the windows.

62. At the end of the day, as the evidence panned out at the hearing, it emerged that the parties are in agreement that the windows in question are common property; that they should be replaced; and what remains in dispute is who bears the responsibility for the security bar grills and fly screens; and whether the replacement aluminium windows should be adhered to the existing wooden frames or new ones.

63. The evidence of Mr O’Donnell that both the windows and the frame should be replaced is not refuted by any direct, corresponding evidence to the contrary.

64. While it may be the case that the frames were not replaced for other windows, the Tribunal is only being asked to determine the state of the Lot 2 windows and there is no evidence, expert or otherwise, to rebut Mr O’Donnell’s observations that the window frames are in such a state of disrepair that they, too, should be replaced.

65. There is no evidence to rebut Mr O’Donnell’s evidence that in undertaking this process the security bar grills will need to be removed and reinstated.

66. The issue of who bears responsibility for the security bar grills is less clear cut and I must say that I find as somewhat a stretch, Mr O’Donnell’s view that they are part of the “furniture” of the windows.

67. That said, I do accept as plausible his uncontradicted evidence that the removal of these grills is necessary to remove and replace the windows. In my view, it must stand to reason, therefore, that as the respondent is liable to remove and replace the windows, the respondent is responsible to ensure that the security bar grills are removed for that process and reinstated at the completion of that process. The same applies to fly screens.

68. I therefore propose to order the respondent to discharge its obligation to repair and maintain the common property by removing the Lot 2 windows and to replace them with aluminium widows, in keeping with the aluminium windows installed throughout the scheme. As part of that process the respondent is to install new window frames and to remove and reinstall any security bar grills and fly screens that are in place.

The car space

69. The applicant gave evidence that he could not use the car space for 1 week, commencing 26 June 2016, when it was occupied by Botany Council “wheely bins”, and that this arose as a result of the respondent’s lack of care.

70. The applicant failed to establish who exactly was responsible for placing the bins in the car space at the relevant time nor any link between these alleged actions and the respondent’s obligations under the SSMA.

71. The applicant failed to provide any evidence of the market rental of the car space at the relevant time and as such failed to substantiate the quantum claimed.

72. The respondent remained adamant that it did not use the car space for rubbish bin purposes or any other purposes.

73. I therefore find that the applicant has failed to establish this claim.

74. In concluding I note that I have, in any event, some concern as to what specific power the Tribunal has under the SSMA to make the money order sought for the matters here in issue. In light of my findings on the facts, however, it is not necessary to pursue this matter further.

Personal items

75. The applicant claims $3,771 because, as he concedes, he had “stored a number of personal items under and around the balcony and entrance (to Lot 2) for some 3 years”.

76. It is the applicant’s case that in 2016 these items were removed by the respondent without his permission, nor indeed without any notification

77. At page 97 of the applicant’s documents he has listed the items in question and placed a monetary value for each item.

78. There is also the evidence of Mr O’Donnell regarding this matter.

79. The quantum claimed rests on internet searches and there is very little correlation between the similarity and value of the internet items and the similarity and value of the items in question.

80. In addition, it appears that Mr O’Donnell simply adopted his instructions as to the figures claimed and agreed that these figures relate to new items. There is no suggestion that the items in question were new.

81. There is also the documentary evidence of “Kiky” (the caretaker engaged by the respondent) who refers to having cleaned out all the “rubbish” he came across.

82. At pages 17-18 of its documents, R1, the respondent has produced photos that are said to be the items Kiki removed “off his own back” as being “rubbish” which includes shrubs, bricks and a bucket.

83. Thus even if these items were wrongfully disposed of by the respondent (and there is some doubt about this, given that on the applicant’s own account many items were left over a considerable time some on common property) there is no evidence to establish their value and justify the some $3000 damages sought.

84. The claim must fail on this basis alone.

85. Again, given the nature of what is alleged, I have some concern as to the Tribunal’s powers under the SSMA to make the money order sought. In light of my findings on the facts, however, it is not necessary to pursue this further.

Loss of rental for Lot 2

86. Under s 106(5)SSMA the Tribunal may award damages to a lot owner where that lot owner has suffered direct damage from an owners corporation’s failure to maintain the common property.

87. To succeed in such a claim the applicant must establish that the respondent is in breach of its obligation to repair and maintain the common property; the damage that flows from that breach; and must quantify that damage.

88. As noted above, there is no dispute that the respondent rectified the bathroom and kitchen windows. I have accepted the unrefuted evidence of Mr O’Donnell that nonetheless, they remain in a state of disrepair and I have found that they are to be replaced.

89. I have also accepted what emerged as the agreed stance of the parties at the hearing and is certainly the evidence of Mr O’Donnell, that all Lot 2 windows need rectification.

86. The applicant relies on the evidence of Mr O’Donnell to argue that the window situation in Lot 2 rendered that lot uninhabitable. The applicant seeks loss of rent, claiming that to have leased the lot in this uninhabitable state would be in breach of the Residential Tenancies Act 2010.

87. The applicant produced evidence that lot 2 was rented from March 2017 until May 2019. The applicant’s case is that the tenants then vacated because of the window situation.

88. There is no evidence from the tenants or elsewhere to substantiate that this was the case and the evidence is that up until that time the tenants continued to reside in the premises despite the state of the windows.

89. Further and most importantly, the evidence before the Tribunal, in particular the emails and correspondence between the parties, suggests that the blame for the windows not being repaired to date, does not rest solely with the respondent.

90. The evidence (see in particular the Order Document produced by the respondent) supports the respondent’s case that by originally agreeing to replacement aluminium windows for the bathroom and kitchen and then vacillating on this stance, the applicant’s prevarications and further changes of mind, contributed to the windows remaining in their current state of disrepair.

91. The evidence is also that the security bar grills were a delaying factor. Although I have found that the respondent, in replacing the windows is to remove and reinstate the grills, the applicant is under a duty to mitigate his loss. It is not open to the applicant to stop the advancement of the window rectification because of the grills issue and now claim In excess of $35,000 damages because that rectification was not carried out.

92. For the above reasons, I am not satisfied that the respondent is in breach of its obligations under s106(1) SSMA so as to entitle the applicant to an order under s106(5) SSMA.

93. In addition, the evidence of the market rental for the period claimed, May 2019 until the present, is not in evidence.

94. What is in evidence is a lease with the former tenants dating back to 2017. This rent payable under this lease cannot establish the market value for lot 2 from 2019 to the present.

95. I therefore find that the applicant has failed to prove that the respondent is in breach of its obligations under s106 SSMA and has failed to prove the quantum of the amount claimed. I dismiss this part of the claim.

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

Registrar

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

Amendments

28 July 2021 - Parties names updated

Decision last updated: 28 July 2021