Symes v SP 31731

[2001] NSWSC 527

CITATION:	Symes v SP 31731 [2001] NSWSC 527
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 1987/00
HEARING DATE(S):	26/04/01, 27/04/01, 01/05/01
JUDGMENT DATE:	27 June 2001
PARTIES :	Douglas Symes - Appellant The Proprietors Strata Plan No 31731 - Respondent
JUDGMENT OF:	Barrett J

LOWER COURT JURISDICTION :	Strata Titles Board
LOWER COURT FILE NUMBER(S) :	128/86/96
LOWER COURT JUDICIAL OFFICER :	Magistrate Orchiston

COUNSEL :	Mr M.D. Young/Mr R.J. Kelly - Appellant Mr M.A. Bradford - Respondent
SOLICITORS:	David Le Page - Appellant Alex Ilkin & Co - Respondent
CATCHWORDS:	REAL PROPERTY - Strata and related titles - Body corporate's duty to keep common property in good and serviceable repair - Whether wall entirely within lot is common property - Whether wall on boundary between lots is common property - Whether floor tiles entirely within lot are common property - PRACTICE AND PROCEDURE - Appeal by way of stated case - Question of law arising on stated case - Whether particular items are common property is question of law - Whether there was evidence of fact found - When determination affected by erroneous decision of law need not be remitted
LEGISLATION CITED:	Strata Titles (Freehold Development) Act 1973 Strata Schemes Management (Miscellaneous Amendments) Act 1996 Strata Schemes Management Act 1996 Justices Act 1902 Justices Amendment (Appeals) Act 1998 Statute Law (Miscellaneous Provisions) Act (No 2) 2000 Local Government Act 1919
CASES CITED:	Ex parte Anderson (1920) 20 SR (NSW) 207 Wheeler v Cahill (1943) 61 WN (NSW) 1 Cook v Evans (1948) 65 WN (NSW) 289 Allen v Kerr (1995) Aust Torts Reports 81-354 Waterloo Holdings Pty Ltd v Timso (NSWCA, 18 August 1997, unreported) Glover v Macdougall [1976] 2 NSWLR 359 Proprietors of Strata Plan No 6522 v Furney [1976] 1 NSWLR 412 Simons v Body Corporate Strata Plan No 5181 [1980] VR 103 North Wind v Proprietors Strata Plan 3143 [1981] 2 NSWLR 809 Burgchard v Holroyd Municipal Council [1984] 2 NSWLR 164 Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46 Hunyor v Tilelli (McLelland CJ in Eq, 24 April 1997, unreported) Coulton v Holcombe (1986) 162 CLR 1 George Hudson Ltd v Australian Workers' Union (1923) 32 CLR 413 Mitchell v Nestle Australia Ltd (1988) 36 ACrimR 119 Ex parte Shara; re Cox (1956) 73 WN (NSW) 283
DECISION:	Appeal dismissed with costs

35

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

WEDNESDAY, 27 JUNE 2001

1987/2000 - SYMES v THE PROPRIETORS STRATA PLAN NO 31731

JUDGMENT

HIS HONOUR:

Background and jurisdiction

1 The appellant appeals to the Court from orders made by a Strata Titles Board (constituted by a magistrate) on 30 April 1997 upon an appeal to that Board from an order made by the Strata Titles Commissioner on 1 March 1996. The appeal to the Board was initiated under s.128 of the Strata Titles (Freehold Development) Act 1973 appearing in Part 5 of that Act.

2 Part 5 of the Strata Titles (Freehold Development) Act 1973 was repealed by the Strata Schemes Management (Miscellaneous Amendments) Act 1996 with effect from 1 July 1997 when the Strata Schemes Management Act 1996 and cognate legislation superseded it. However, saving provisions in the Strata Schemes Management Act 1996 continued in force certain provisions of the Strata Titles (Freehold Development) Act 1973. In particular, clause 4(1) of Schedule 4 to the Strata Schemes Management Act 1996 provided:

“An order made by the Commissioner or a Strata Titles Board under the Strata Titles (Freehold Development) Act 1973 or the Strata Titles (Leasehold Development) Act 1986 is taken to have been made by an Adjudicator or the Strata Schemes Board under the corresponding provision of this Act.”

3 The effect of this provision was to cause the decision of the Strata Titles Board made on 30 April 1997 to be treated as if it were an order of the Strata Schemes Board under s.177 of the Strata Schemes Management Act 1996. The avenue of appeal from the Board thereby became that provided by s.200 of the Strata Schemes Management Act 1996 the principal sub-sections of which are:

“(1) An appeal lies to the Supreme Court against an order made by the Board under this Chapter.
(2) An appeal lies in the same cases and in the same way as it would lie under Part 5 of the Justices Act 1902 if the order were a determination that a justice or justices made, at the time the order took effect, in the exercise of summary jurisdiction on an information or complaint.”

4 The applicable procedure under Part 5 of the Justices Act at the relevant time was by application in writing to the justice or justices concerned to state and sign a case setting forth the facts and grounds of the determination for the opinion of the Supreme Court. The procedure was available only in a case where the determination of the justice or justices in the exercise of summary jurisdiction was challenged “as being erroneous in point of law”. The duty of the Court was stated in s.106 of the Justices Act:

“The court shall hear and determine the questions of law arising on such case, and shall:
(a) reverse, affirm, or amend the determination in respect of which the case was stated, or
(b) remit the matter to the justice or justices with the opinion of the court thereon, or
(c) make such other order in relation to the matter as seems fit:
Provided that the Court may cause the case to be sent back for amendment, and thereupon it shall be amended accordingly, and judgment shall be delivered after it has been so amended.”

5 The provisions of Part 5 of the Justices Act 1902 to which I have just referred are no longer in force. That Part 5 was repealed by the Justices Amendment (Appeals) Act 1998 which inserted a new Part 5 but, in so doing, stated that that new Part 5 was to apply only to orders made after is commencement, with the result that the Part 5 applying immediately before the commencement of the Justices Amendment (Appeals) Act 1998 continued to be the operative enactment in relation to the present matter. Furthermore, s.30 of the Interpretation Act 1987 caused that position to continue when the Statute Law (Miscellaneous Provisions) Act (No 2) 2000 repealed the Justices Amendment (Appeals) Act 1998.

The stated case procedure

6 The stated case procedure under the now superseded provisions of Part 5 of the Justices Act 1902 which I must follow here involves a limited avenue of appeal. The guiding principles which emerge from the provisions themselves and from the case law, including, in particular, the judgments of members of the Full Court and Court of Appeal in Ex parte Anderson (1920) 20 SR (NSW) 207, Wheeler v Cahill (1943) 61 WN (NSW) 1, Cook v Evans (1948) 65 WN (NSW) 289, Allen v Kerr (1995) Aust Torts Reports 81-354 and Waterloo Holdings Pty Ltd v Timso NSWCA, 28 August 1997, as well as the decision of Yeldham J in Glover v Macdougall [1976] 2 NSWLR 359, may be stated briefly.

7 First, s.106 of the Justices Act requires the Court to hear and determine “the question or questions of law arising on any such case”. It follows that the only questions that the Court may determine are questions of law and that the only questions of law it may determine are those raised by the stated case itself.

8    Second, it may be that a question of law will have been included in the stated case at the request of the applicant even though that question was not taken at the hearing below or brought to the attention of the tribunal. But this does not mean that the Court, upon the hearing of the stated case, is entitled to determine questions of law beyond those arising on the stated case itself.

9    Third, the Court must accept the facts recited in the stated case as the ultimate facts for considering the questions of law it is required to determine. It may presume that the party at whose request the case was stated has discharged its duty to ensure that the stated case contains the findings below and recites all facts as found below on which that party wishes to rely.

10    Fourth, while the transcript of the proceedings below, including the transcript of the decision, may properly be introduced into evidence upon the hearing of the appeal by way of stated case, the use to which that transcript may be put is limited. It is not open to the Court to review the reasoning processes disclosed in the transcript except in so far as they may be raised by the stated case; nor is it open to the Court to refer to the evidence below except insofar as there is a question of law whether there is any evidence of primary facts found.

The subject of the appeal

11    The matter in issue is responsibility for repairing certain apparent defects which allow water to penetrate enclosed areas within the part of Lot 32 which is on the top floor (Level 11) of a strata title residential flat building in Smith Street, Wollongong. The Strata Titles Commissioner determined that responsibility lay with the body corporate. The Strata Titles Board held that it did not.

12    The order of the Strata Titles Commissioner made on 1 March 1996 was as follows:

“An order is made under s.105(1) of the Strata Titles Act 1973 requiring The Proprietors - Strata Plan 31731 to comply with s.68(1)(b) of the Act and take such action as necessary to rectify the water penetration problem through the common property concrete floor or at floor level into the lot known as Unit 32 in Strata Plan 31731.”

13    On appeal, the Strata Titles Board made three determinations, two of which are the subject of the stated case. The Board held, first, that if there was water penetration of Lot 32 at floor level of Level 11, it was not the responsibility of the body corporate. This was Determination 2. The Board held, second, that if there was water penetration through the external eastern wall into Lot 32 on Level 11, it was not the responsibility of the body corporate. This was Determination 3. The determinations, as set out in the stated case, were in the following terms:

“ In relation to Determination 2 :-
(i) The stipulated conditions attached to the local council approval for the construction of the sunrooms on Level 11 of the building were never complied with during the life of the approval, or since.
(ii) The sunroom was not legally constructed for habitable use.
(iii) The lack of a rebate to the sunroom is not a defect in the original common property concrete slab on level 11 of the building, and was not integral to the slab.
(iv) The Body Corporate is not liable to rectify the water penetration into the sunroom at floor level.
In relation to Determination 3 :-
(v) Given the grounds of Determination 2 above, the common walls on level 11 of unit 32, including the eastern wall, do not bound approved habitable rooms.
(vi) The eastern wall is exempted from compliance with the waterproofing standards for habitable use set by the Building Code of Australia that it be impervious to water penetration.
(vii) The Body Corporate is not liable to rectify water penetration, if there be any, through the eastern wall.”

14    I should refer in more detail to the location of the walls in question, noting that none of the matters I am about to mention is, on my understanding, in dispute between the parties. Two sections of wall are relevant to Determination 2. One is on the northern side of the enclosed area of the part of Lot 32 on Level 11 and divides the enclosed area from a deck. The second section joins the first at right angles and divides the enclosed area from the western perimeter of the deck. These adjoining sections of wall are wholly within Lot 32. Because they are involved in Determination 2, I shall refer to them together as “the No 2 wall”. A single wall is involved in Determination 3. It is situated on the eastern boundary of the part of Lot 32 on Level 11, that is, the boundary between that part of Lot 32 and the part of Lot 34 which is on Level 11. This single wall is referred to below as “the No 3 wall”.

15    Determination 2 refers to water penetration “at floor level”. The floor is of concrete construction with a covering of ceramic tiles. I shall refer to these as “the surface tiles”. It does not appear to be clear from the Board’s determination whether water entered between the base of the wall and the surface of the floor (whether it be concrete or tiles at that point) or between the underside of the surface tiles and the upper surface of the concrete. Both possibilities must therefore be addressed.

Overview of issues

16    It is appropriate to begin by outlining legal issues which, to my mind, are relevant to the dispute between the parties. I do so by reference to the Act of 1973 as if it were still in force.

17 The dispute is confined to responsibility for repair. It was common ground that the only possible source of a duty on the part of the respondent to repair is the provision referred to in the order of the Strata Titles Commissioner, namely, s.68(1)(b)(i) which obliges a body corporate to “properly maintain and keep in a state of good and serviceable repair … the common property”. It was also common ground that this section extends to making good things which have never been right, as well as rectifying deterioration from an original state: Proprietors of Strata Plan No 6522 v Furney [1976] 1 NSWLR 412; Simons v Body Corporate Strata Plan No 5181 [1980] VR 103; North Wind v Proprietors Strata Plan 3143 [1981] 2 NSWLR 809.

18    A fundamental issue is therefore whether the parts of the building in question in these proceedings are “common property”. If they are, s.68(1)(b)(i) applies to them. If they are not, the section does not apply. The position in relation to one part may, of course, not be the same as the position in relation to the other. If the s.68(1)(b)(i) obligation did come into play in relation to any relevant part of the building, there is a further question as to the nature and scope of that obligation.

19    Determination 3 related clearly to water penetration through a wall. Determination 2, on the other hand, concerned water penetration “at floor level” - from which, as I have said, I infer that water entered either between the base of the wall and the concrete or tiles below that base or between the underside of the surface tiles and the surface of the concrete on which they are laid. The status of the No 3 wall as common property was in issue in the appeal heard by me and is relevant to the s.68(1)(b)(i) question. In the case of Determination 2, there is no dispute about the status of the concrete floor: it is clearly common property. The status of the No 2 wall (that is, the wall which meets the floor in the area of water penetration) is, however, in contention in the same way as that of the No 3 wall - as, of necessity, is the status of the surface tiles.

20    If the s.68(1)(b)(i) obligation comes into play, it may be necessary to consider the content of the obligation and whether, as the Board found, the circumstance that relevant parts of the common property were not lawfully constructed may be relevant to that content.

Boundary walls as common property

21    The definition of “common property” is in s.5(1):

“ ‘common property’ means so much of a parcel as from time to time is not comprised in any lot.”

22    Under the same section, the term “parcel” in this context refers to:

“the land from time to time comprising the lots and common property the subject of a strata scheme.”

23    The definition of “lot” is as follows:

“one or more cubic spaces forming part of the parcel to which a strata scheme relates, the base of each such cubic space being designated as one lot or part of one lot on the floor plan forming part of the strata plan, a strata plan of subdivision or a strata plan of consolidation to which that strata scheme relates, being in each case cubic space the base of whose vertical boundaries is as delineated on a sheet of that floor plan and which has horizontal boundaries as ascertained under subsection (2), but does not include any structural cubic space unless that structural cubic space has boundaries described as prescribed and is described in that floor plan as part of a lot.”

24    Everything within a parcel must thus be either a lot or common property. Common property is the residual category. Once the lots and their content are identified and ascertained, everything else in the parcel becomes common property.

25    As the definition says, a lot consists of one or more cubic spaces, with “cubic” not necessarily having here its strict meaning in geometry: s.5(3). The definition of “lot” goes on to describe the cubic space by reference to three characteristics. First, its base must be designated as one lot or part of one lot on the floor plan forming part of the strata plan. (I shall come to the definition of “floor plan” in a moment.) Second, that base’s vertical boundaries must be delineated on a sheet of the floor plan. Third, the horizontal boundaries must be as ascertained under s.5(2).

26    “Floor plan” is also defined by s.5(1). One of the characteristics of a floor plan is that it defines by lines the base of each vertical boundary of every cubic space being or forming part of a lot. By virtue of s.5(2), if the base of any wall corresponds substantially with any such line, the boundary of the relevant cubic space is the inner surface of that wall. It follows that where the base of a wall corresponds substantially with a line which represents the boundary between two adjoining lots, neither lot includes the wall. Each lot ends at what is, from the perspective of its cubic space, the wall’s inner surface. The material between those surfaces is therefore not within either lot. Likewise, if the base of a wall corresponds substantially with a line which divides a lot from common property such as a hallway, the lot ends at what is, from the perspective of its cubic space, the inner surface of the wall, so that the wall, like the hallway, is common property.

27    Similar provision is made by s.5(2) in relation to horizontal boundaries where any floor or ceiling joins a vertical boundary of the relevant cubic space. In such a case, it is the upper surface of the floor or the under surface of the ceiling which is the boundary of the lot so that again the material of the floor or ceiling is common property.

28    Boundaries of lots need not correspond with structural features such as walls, floors and ceilings. This is borne out by s.5(2)(b) which refers to boundaries being described on a sheet of the floor plan “in the prescribed manner by reference to a wall, floor or ceiling in a building to which that plan relates or to structural cubic space within that building” [emphasis added].

29    The scheme of the Act is such that lines on plans and physical features of the building combine to identify a lot and its boundaries. Lines on plans alone are insufficient. If a boundary of a lot does not substantially coincide with a wall, floor or ceiling - such as, for example, where there is an open patio or balcony with no structure above - that boundary must nevertheless be delineated “by reference to” such a physical feature. (I leave to one side for the moment the reference in s.5(2)(b) to “structural cubic space” noting, however, that it too anchors matters back to physical features such as vertical structural members other than walls and is thus entirely consistent with the conceptual approach which pays attention to walls, floors and ceilings.)

30    Implicit in all these provisions is an assumption that all relevant physical features (including walls, floors and ceilings) exist when lots and common property come into being. The event which causes them to come into being is registration of a plan as a strata plan: s.7(2). That event also causes the common property to become vested in the body corporate: s.18. Prerequisites to such registration are stated in s.8(1). One of them (provided for in s.8(1)(f)) is that the location plan which, with the floor plan, makes up the strata plan (see s.8(1)(a)) be accompanied by a certificate given by a registered surveyor certifying the existence of any wall, floor, ceiling or structural cubic space which plays a part in the delineation of lot boundaries. With respect to walls, the requirement is that the registered surveyor certify:

“that any wall, the inner surface or any part of which corresponds substantially with any line shown on the floor plan relating to any building erected on that land as a boundary of a proposed lot, exists.”

31    The Act also envisages the possibility that relevant walls may be constructed after registration of a strata plan. Section 14(1)(b) addresses the situation where a building is altered:

“by constructing any wall, floor or ceiling so that a boundary of a lot coincides with the inner surface or any part of that wall, the upper surface or any part of that floor or the under surface or any part of that ceiling.”

Where such construction work is done, the proprietor of the relevant lot is obliged by s.14(1) to lodge at the office of the Registrar-General a building alteration plan which defines by lines the base of each vertical boundary of the lot after the building alteration and satisfies various requirements, including a requirement that the plan be accompanied by a certificate given by a registered surveyor certifying that the wall, floor, ceiling or structural space has been construed. Upon registration of the building alteration plan, a new wall becomes common property.

32    It follows from the above that, subject to possibilities about to be mentioned with respect to non-boundary walls, a wall cannot be common property unless two conditions are satisfied. First, the position of the wall must correspond substantially with a line on the floor plan representing the boundary of a lot. Second, that physical situation must pertain at the time the strata plan is registered or, if it comes to pertain at some later time, it must be depicted in a building alteration plan.

Non-boundary walls as common property

33    The No 2 wall raises the question whether a wall which is not a boundary wall - that is, a wall whose inner surface does not represent the boundary of a lot - may in any circumstances be common property. This is really part of a wider question whether anything within the cubic space which is a lot may be common property.

34    It is, of course, not at all difficult to imagine various situations in which structural parts of a building will be within such a cubic space. An example is a supporting column which runs vertically through the rooms on all storeys. One would expect such a column to be beyond the ownership of any individual lot proprietor in the same way as external walls, floors and roof. All of these together make up the fabric of the building.

35    The status of such a column is covered by the provisions with respect to “structural cubic space”, as defined by s.5(1). That defined term includes

“cubic space occupied by a vertical structural member, not being a wall, of a building”.

36    A “structural member … of a building” is, to my mind, an element of the building which causes it to be a building - something which is part of the collection of connected physical items which causes the whole to stand complete as a single enclosed unit. The definition does not, I think, include material which is added to such a single enclosed unit to enhance its utility or to make it more conveniently habitable, such as an exhaust fan affixed to a bathroom window or floor to ceiling partitioning installed in an office building.

37    Anything which is “structural cubic space” is excluded from a lot by express words in the s.5(1) definition of “lot”, unless “that structural cubic space has boundaries described in that floor plan as part of a lot”.

38 To the extent that a wall is a “vertical structural member”, it is incapable of being “structural cubic space”. This is because of the words “not being a wall” in the definition of “structural cubic space”. Once the cubic space constituting a lot is determined, vertical structural members other than walls within it which are appropriately labelled on the floor plan may be excluded from that lot and thereby relegated to the residual category of common property. But that is not possible in relation to walls. This is confirmed by the decision of Roden J in Burgchard v Holroyd Municipal Council [1984] 2 NSWLR 164.

39    It has been recognised that this causes problems where, for example, unroofed balconies (with railings only) extend beyond the outer walls of a building in what is effectively suspended form. Clearly, it is necessary in such a case that those outer walls be common property even though they are within the lot’s cubic space. As is explained at para 5.490 of Moses, Tzannes and Skapinker, “Strata Titles”, 2nd ed, 1989 (as updated to Release 11), the approach generally taken to such matters is for the boundary of the lot to be delineated in the floor plan by a line corresponding with the outer extremity of the balcony and for another line to be drawn at the position of the wall, with the areas on either side of the latter line being joined by what the authors call a “verticulum” (presumably “vinculum”). The authors then refer to a decision of a magistrate on 29 September 1983 that

“where the wall of the building was shown by an unbroken line and the adjacent cubic space [in my example, the balcony] indicated by a verticulum the intention evinced was that the wall was to be common property notwithstanding that the definition of ‘floor plan’ had not been complied with fully.”

(This is Case 906 reported at page 55,609 of the 1979-90 volume of CCH New South Wales Strata Title Cases).

40    It may be that, in such a case, it is appropriate to regard (and designate) the cubic spaces on either side of the line representing the wall of the building as different “parts” of one lot as referred to in para (a) of the definition of “floor plan” so that the boundary of each part becomes what is, from that part’s perspective, the inner surface of the wall between them and that wall thereby becomes common property. In any event, a wall which is within the boundaries of a lot cannot be common property unless it appears on the floor plan and is there treated in a way which causes it to have that character under the Act.

41 The conclusion just stated takes full account of the law of fixtures as it applies in the strata title situation: cf Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46 per Handley JA. Principle dictates that whatever is attached to a parcel with the intention that it should remain there indefinitely takes its character as lot or common property from the part to which it is attached. It follows that anything attached to a floor the upper surface of which marks a lot’s lower horizontal boundary (or the base of its cubic space) becomes part of that lot.

Status of the No 2 wall

42 I turn to the strata plan which is included as Annexure A to the stated case and is therefore available to me for the purposes stated in Pt 32 r 6 of the Supreme Court Rules. The fact that the No 2 wall does not purport to stand on a boundary of the lot means that the question whether it is common property turns entirely on whether the strata plan identifies it as common property in some manner which causes the Act to afford it that character. The answer is clear. That wall is not shown or identified on the strata plan at all. It is therefore not common property. It forms part of Lot 32.

What does the strata plan reveal about the No 3 wall?

43    Because, in the present case, there is no suggestion that a building alteration plan was prepared and registered, the question whether the No 3 wall is common property falls to be determined by reference to three issues of fact: first, does the wall substantially coincide with the boundary of the relevant lot; and, second (and if it does), did the wall exist when the strata plan was registered; but third (if it does not) does the strata plan by some other means identify the wall as common property? As I understood the submissions of counsel, it is common ground that the first question should be answered “yes” in relation to the No 3 wall. That being so, the only relevant follow-on question in relation to the No 3 wall is whether it existed when the strata plan was registered.

44    The strata plan has endorsed on it the surveyor’s certificate required by s.8(1)(f)(i) of the Act. The certificate is in the form prescribed in Schedule 3 to the now repealed Strata Titles Act Regulations 1974. It merely says that “any wall” the inner surface of which corresponds substantially with a line shown on the floor plan as a boundary exists. The floor plan shows only lines. It does not distinguish between those which are the site of the walls and those which are not. The statement in the surveyor’s certificate as to the existence of walls therefore cannot be related to particular lines and does not allow conclusions to be drawn as to whether a particular line is the site of a wall.

45    Nothing in the floor plan enables one to say where any wall was located when the plan was drawn - except perhaps by inference where an area is shown as “balcony roofed” and, although separated by a line from another part of the same lot, is shown as joined to that other part and thus as being included in that lot in the manner already briefly discussed. That line may, I think, be assumed to be a wall, in whole or in part. But there are no such lines on Level 11.

46    One conclusion as to the structural state of Level 11 can, however, be stated by reference to the strata plan itself, viewed in the context of the statutory scheme just outlined. It comes from a notation appearing on the sheet of the floor plan showing the floor in question, Level 11. That notation is as follows:

“The stratum of part lots 32, 34, 35, where not roofed, is limited in height to 2.4 above their respective concrete floors, upper surface.”

47    It can be inferred from this that part (but not the whole) of Level 11 was roofed when this notation was added to the plan before its lodgment and registration. The existence of some roofing makes it both possible and necessary to infer that there was some form of structural support for whatever roof existed. The notation also justifies an inference that part of the sections of each of Lots 32, 34 and 35 on Level 11 was unroofed; also that the floor was concrete.

48 Another element of the strata plan registration process is found in s.8(1)(e) coupled with s.37. Section 8(1)(e) makes it a prerequisite to registration that the location plan forming part of the strata plan be accompanied by a certificate given by the local government council in accordance with s.37(1). The latter provision requires the council to issue a certificate of approval of the strata plan if it satisfied as to one of two sets of matters, one (para (a)) related to compliance with certain provisions of the Local Government Act 1919 and factual matters related to the relevant building and the other (para (b)) relating mainly to compliance with planning measures which pay no attention to the state of the building. But as was pointed out by McLelland CJ in Eq in Hunyor v Tilelli (unreported, 24 April 1997), the council has a free choice as to which basis it uses. It follows that the existence of a certificate under s.37(1) allows it to be said that the council has formed a positive opinion on one set of matters but provides no basis for saying that it is the set referred to in para (a) rather than referred to in para (b) or vice versa.

49    The crucial factual question relevant to the status of the No 3 wall as common property (ie, whether it existed when the strata plan was registered) cannot be determined merely by reference to the strata plan and must be further investigated in the light of the Board’s findings of fact.

The facts

50    The facts as found by the Board are set out at length in the stated case. I repeat them here verbatim with the same numbering:

(i) Strata Plan No 31731 was registered on 7 January 1987.
(ii) It comprises an 11 storey building at the corner of Smith Street and Wilson Street, Wollongong, known as “North Bay” units (the building) which were constructed in about 1986.
(iii) The appellant purchased Unit 32 in the building in August 1994.
(iv) Unit 32 comprises an area of the building on level 10 and a sunroom area on level 11 (the sunroom).
(v) The sunroom includes a bedroom, study and loungeroom on the northern side, all of which suffer from water penetration resulting in damage to the carpets, curtains and wallpaper, especially when subjected to heavy wind and rain.
(vi) The sunroom was not part of the original building design.
(vii) In September 1985 Development Consent No D85/305 for construction of the building was granted by the local council.
(viii) In December 1985 Building Permit No BA85/2202 for construction of the building was granted by the local council.
(ix) In July 1986 a further Development Application No D86/464 for the construction of sunrooms to each of proposed lots 32, 34 and 35 on level 11 of the building (the sunrooms) was lodged with the local council.
(x) On 27 August 1986 and on 29 August 1986, Development Consent No D86/464 and Building Approval No BA 86/1780 were respectively granted by the local council, valid for 12 months, and subject to compliance with certain stipulated conditions, for the construction of the sunrooms.
(xi) Prior to the registration of the Strata Plan, P & R Design, the architectural consultants to the building, recognised they could not comply with the stipulated conditions required by local council for the construction of the sunrooms as habitable rooms, and that they were then of the view that such a construction was not feasible.
(xii) On 18 December 1986, P & R Design, sought approval from the local council for an amendment application to delete the sunrooms. There was no evidence of formal acknowledgment by council of this amended application, nor were the amended plans stamped. However, before registration of the Strata Plan, the sunrooms application was the subject of further discussions between council and P & R Design.
(xiii) The certifying surveyor on the Strata Plan, Mr Dennis Smith, omitted the sunrooms on level 11 from the Strata Plan, rather inserting a notation in relation to this stratum of the lots for unroofed areas.
(xiv) Mr Smith’s omission of the sunrooms from the Strata Plan was intentional, given his knowledge of the existence of the Building Approval and Development Consent for the sunrooms at the time of certification.
(xv) It was normal local council practice at the time to alert an applicant’s attention to any omission of any part of any unit in a Strata Plan application. There was no evidence to suggest council followed its normal practice on this occasion.
(xvi) At the time of registration of the Strata Plan, there was some form of structure in existence on level 11 of the building. Such structure did not comply, nor was it intended to comply, with the stipulated conditions for council approval for the construction of the sunrooms.
(xvii) On 30 January 1987 a certificate of compliance under s 317A of the Local Government Act 1919 was issued in respect of the original Building Permit BA 85/2202. It did not extend to the further development application for the sunrooms.
(xviii)There was no rebate or step down in the construction of the concrete slab of level 11, and hence between the sunroom interior of Unit 32 and the adjacent exterior balconies.
(xix) The lack of a rebate or step down constituted non-compliance with the relevant Australian Standards, the Building Code of Australia, if applicable, and with good building and engineering practice in relation to habitable use.
(xx) The concrete slabs on all other 10 levels of the building were constructed with the required rebate for habitable use.
(xxi) Level 11 was treated differently in its construction from all other 10 habitable levels of the building with its absence of a physical rebate as part of the original concrete slab, and in its failure in this regard to comply with proper engineering and building practices for habitable rooms. This difference in treatment is consistent with Level 11 not having been constructed for use as habitable rooms.
(xxii) The tiled exterior balconies on Level 11 of Unit 32 were 85mm higher than the internal sunroom floor area.
(xxiii) The tiles laid on the balcony near the bedroom of the sunroom, in particular near the north east corner, were poorly sloped.
(xxiv) The external eastern wall (the eastern wall) of unit 32 on level 11 was common property.
(xxv) There was cracking to the top portion of the eastern wall underneath the roof slab, external to the bedroom of the sunroom.
(xxvi) F1(4)(b) of the Building Code of Australia exempts certain structures from compliance with the waterproofing standards required for habitable rooms that they be required to be impervious to water penetration.
(xxvii) The structure on Level 11 of unit 32, which includes the eastern wall, falls within the category “or the like” in exemption F1(4)(b) of the Building Code of Australia.

51 Three annexures to the Board’s statement of facts, being Strata Plan No 31731 (Annexure A), s.317A Certificate of Compliance, Application for Certificate and Report of Health Inspector (Annexure B) and F1(4)(b) of the Building Code of Australia (Annexure C) were in evidence before me.

Further review of facts relevant to the No 3 wall

52    It will be noted that the Board’s findings of fact include, at item (xxiv), a finding that the No 3 wall “was common property”. To my mind this conclusion that a physical item is within a statutory definition the content and scope of which depend on the construction of provisions of the statute (which is the only conclusion the Board could have intended to state in item (xxiv)) is a conclusion of law albeit, of course, one derived from and based on relevant facts. For reasons already elaborated, a conclusion that the No 3 wall is common property cannot properly be reached, in the context of the strata plan itself and the legislation in which the definition appears, unless it is found as a fact that the wall existed when the plan was registered on 7 January 1987. Although the findings of fact set out in the stated case do not include any express finding to that effect, such a finding is, as just stated, necessarily implicit in the conclusion that the No 3 wall is common property.

53    It is therefore necessary to inquire whether there was evidence before the Board from which such a finding of fact could properly be derived. Resort to the transcript of proceedings before the Board and to the exhibits received in evidence by the Board is permitted for the purpose of that inquiry. Remembering that the crucial date is 7 January 1987, the following evidence of Mr Hodder, Environmental Health and Building Officer of Wollongong Council, is very pertinent:

“Q. Do you recall the development at 8 Smith Street Wollongong?
A. Yes.
Q. Do you remember how many times you visited level 11 of that building?
A. I believe once.
Q. Do you recall when that was?
A. I believe it was in the vicinity of 30 January 1987.
Q. Do you recall when you attended the roof level what structure there was erected in regard to the sunrooms at that time?
A. Yes I do, I recall it.
Q. Would you please tell her Worship?
A. Yes, at the time there were concrete columns supporting a roof structure, it was what I would term the shell of the building I suppose, there were no in fill panels, no windows, doors, or any other fixtures other than concrete, it was a concrete roof, concrete floor, concrete columns.”

54    Later, Mr Hodder gave evidence of a conversation he had with the original purchaser of Lot 32 and with the developer, Mr Graovac, in the course of the inspection of Level 11 on or about 30 January 1987:

“Q. What did you say to you (sic) about the sunroom?
A. Well I asked him, I remember asking the builder as well as Mr Graovac, what they intended to do with the top area and they said at that stage that they hadn’t decided, but the building appeared to be structurally sound and I could see no reason why the certificate shouldn’t be issued.

Q. Did Mr Ferrero say anything to you about occupation of the sunroom?
A. No, when I asked them what their intentions were with that area, because it seemed to me that there would be no point in putting a roof up there if you weren’t going to use it, and they said they were just going to use it basically as a sunning area, somewhere to sunbathe.
Q. To sunbathe?
A. Yeah, until they decided what they were going to do.”

55    There was thus before the Board clear evidence from this Council officer that the structure on Level 11 on or about 30 January 1987 consisted of columns and a roof on a concrete floor, with “no in fill panels, no windows, doors, or any other fixtures”. This, to my mind, amply justifies a finding that the No 3 wall did not exist on or about 30 January 1987 or, to put it the other way, precludes (in the absence of countervailing evidence) a finding that it did exist at that time.

56 It is to be noted that a certificate under s.317A of the Local Government Act 1919 was issued by Wollongong Council on 30 January 1987. This is the Annexure B to the stated case. It is the certificate to which Mr Hodder referred in the second extract above. The certificate states as follows:

“The Council of the CITY OF WOLLONGONG hereby certifies that in the opinion of the Council the building hereunder described in all respects complies with the Local Government Act, 1919, the Ordinances made thereunder, and the plan and Specifications if any, approved by the Council and the Environmental Planning and Assessment Act 1979, and any environmental planning instrument or, if there has been any contravention of the Act or Ordinances or any departure from the approved plan or Specifications or any contravention of the Environmental Planning and Assessment Act, 1979 or any environmental planning instrument, that such contravention or departure is not such as need be rectified.”

57 The “building hereunder described” was simply “brick and concrete multi-storey units car parking under”, identified by reference to the Smith Street address and a reference number corresponding with that of the approval relating to the building before applications relevant to additional development and construction on Level 11 had been made (those later applications and their results being referred to in items (ix) and (x) of the Board’s findings of fact). This uninformative description, coupled with the fact that, in the relevant part of the Local Government Act 1919, “building” includes a part of a building (s. 304), does not provide any basis for saying that any particular wall did or did not exist on Level 11 on the date of the certificate.

58 Other evidence before the Board is, like the s. 317A certificate, unhelpful on the factual question of the existence or non-existence of the No 3 wall on 7 January 1987. Although evidence was given by a second Council officer who had some familiarity with the building at the time of its construction, he did not give evidence relevant to that matter. The only explicit evidence of the physical state of Level 11 in January 1987 was that of Mr Hodder already quoted.

Status of the No 3 wall

59    There was no evidence before the Board from which it could properly infer that the No 3 wall existed on 7 January 1987. The only evidence as to the nature and state of structures on Level 11 at that time denied the existence of any wall. It was therefore not open to the Board to reach and act upon the conclusion that the No 3 wall is common property. To have done so was erroneous.

Status of the surface tiles

60    These conclusions with respect to the No 3 wall also apply to the surface tiles laid on the concrete floor of the part of Level 11 at the base of the No 2 wall. There was no evidence before the Board from which it could properly infer that those tiles had been laid on or before 7 January 1987. Indeed, the notation on the strata plan with respect to the height of unroofed areas on Level 11 refers explicitly to “concrete floors”. It was therefore not open to the Board to reach and act upon the conclusion that the surface tiles are common property. To have done so was erroneous.

Conclusion and orders

61    For the reasons stated, the Board should have concluded, as a matter of law, that none of the No 2 wall, the No 3 wall and the surface tiles were within the statutory definition of “common property”. The Board should also have concluded, as a matter of law, that the obligation of the body corporate arising under s. 68(1)(b)(i) did not apply to any of those items. The way in which the Board reached the conclusion that the body corporate was not liable to rectify the water penetration at either point was erroneous in point of law, even though the conclusion itself was correct.

62 The question whether the items concerned are common property is a question of law for the reason already stated, namely, that it involves the conclusion that a physical item is within a statutory definition the content and scope of which depend upon the construction of provisions of the statute. Because that question is decisive of the issues arising on the stated case, it is open to the Court, in these proceedings governed by the now repealed provisions of the Justices Act, to dispose of the appeal solely by reference to that question. In Wheeler v Cahill (above). Jordan CJ said:

“It is true that any dissatisfied party may by procuring a case to be stated under s.101 obtain a determination by this Court under s.106 of any question of law arising on the case. It is true also that the jurisdiction so exercisable is not restricted to questions of law which have been specifically raised before the magistrate. It extends to all questions of law which are necessarily involved in his decision whether his attention was drawn to them or not; although the Court will not entertain a point of law not raised before the magistrate if, assuming it to have been taken before him, it is possible that it might have been met by calling further evidence.”

63 To the same effect are the following observations of Isaacs J (with whom Higgins and Starke JJ agreed) in George Hudson Ltd v Australian Workers’ Union (1923) 32 CLR 413 referred to by Jordan CJ:

“Whether represented by counsel or not or, being represented by counsel, whether or not he is habitually accustomed to the recondite intricacies of scientific jurisprudence, if a litigant, merely because some decisive but unusual point escapes attention, were to be debarred from the benefit of the Supreme Court’s ruling on the point, Parliament would have failed to meet an obvious necessity. The decisions I have quoted show that, in the opinion of the Judges who gave them, that failure did not exist; and I agree with them. That establishes, in my opinion, that, so far as the State Act operates, the case stated was open to the Supreme Court to decide every point of law that was relevant to the facts stated.”

64 Because the question whether the relevant items are common property was so central to the proceedings before the Board, I do not consider that principles of the kind discussed in Coulton v Holcombe (1986) 162 CLR 1 preclude my deciding this appeal by reference to that question.

65 Once that point is reached, the Court must decide which of the courses allowed by s. 106 (set out above) it should take. There are essentially three possibilities, namely, to reverse, affirm or amend the Board’s determination, to remit the matter to the Board with the Court’s opinion or to make some other appropriate order. Where the Court finds that a question of law has been wrongly decided below, it should generally remit the matter with the opinion of the Court: Mitchell v Nestle Australia Ltd (1988) 36 ACrimR 119. But this general rule may be departed from where there is no real point in remitting. As Brereton J put it in Ex parte Sharah; re Cox (1956) 73 WN (NSW) 283:

“Sections 101 and 106 make it plain that the appeal is against the determination; and if the magistrate’s decision is justified on the evidence and not affected by an erroneous decision of law the case will not be remitted ( Sangster v Henry (1920) 37 WN (NSW) 135).”

66    Emphasis must be placed on the words “not affected by”. There is no need to remit if the decision of the tribunal appealed from demonstrates an erroneous decision of law but, despite that erroneous decision, the correct result has been achieved - provided always that that result is justified by the evidence. Ex parte Sharah; re Cox was itself a case in which the Court held that the magistrate had been wrong in refusing to admit certain evidence. It was also held that, even if the evidence had been admitted, there would still have been no prima facie case, so that the magistrate had not fallen into error in the substantive conclusion of dismissing the informations. There was accordingly no need to remit the matter to the magistrate.

67    That, to my mind, is exactly the position here. The appropriate course, therefore, is to declare that the parts of the building referred to in these reasons as the No 2 wall, the No 3 wall and the surface tiles are not common property, with the result that the respondent, as body corporate, was not obliged by s.68(1)(b)(i) of the Strata Titles (Freehold Development) Act 1973 to repair any of them. The appeal is dismissed with costs.

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Last Modified: 06/28/2001