The Owners Corporation - Units Plan No 107 v Jason Perkins
[2018] ACTMC 18
•24 August 2018
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | The Owners Corporation – Units Plan No 107 v Jason Perkins |
Citation: | [2018] ACTMC 18 |
Hearing Dates: | 5 April 2018 |
DecisionDate: | 24 August 2018 |
Before: | Magistrate Fryar |
Decision: | See [15] – [16] |
Catchwords: | CIVIL LAW – Enforcement proceedings – Owners Corporation Application for enforcement of Tribunal Orders – compliance with Tribunal Orders – appropriate work to comply with Tribunal Orders. |
Legislation Cited: | Unit Titles (Management) Act2011 (ACT), Part 8 |
Parties: | The Owners Corporation – Units Plan No 107 (Enforcement Creditor) Jason Perkins (Enforcement Debtor) |
Representation: | Mr W Staples (Enforcement Creditor) Mr J Perkins on his own behalf (Enforcement Debtor) |
| Solicitors Bradley Allen Love Lawyers (Enforcement Creditor) | |
File Number: | EM 279/2017 |
MAGISTRATE FRYAR:
Introduction
Jason Perkins (‘the Enforcement Debtor’) is the owner of unit 35 of 6 MacLaurin Crescent Chifley ACT (Units Plan No. 107). For some time there had been a problem with water egress from the bathroom of unit 35 into the bathroom of unit 34. In 2016 the Owners Corporation – Units Plan No. 107 (‘the Enforcement Creditor’) took action against Mr Perkins in the Australian Capital Territory Civil and Administrative Tribunal (‘ACAT’) seeking orders that: (a) he refurbish his bathroom to prevent water egress into unit 34 using a qualified and licensed contractor; and (b) recovery by the applicant of costs incurred to date to repair the leaks in unit 35 and the costs associated with the application. The application was brought under Part 8 of the Unit Titles (Management) Act 2011 which deals with, inter-alia, disputes between an owners corporation and an owner.
The Tribunal made findings that Mr Perkins had an obligation to stop unreasonable water egress from his bathroom into a slab. There was much discussion about a ‘Megaseal’ option and the Tribunal member noted that ‘Megaseal’ was not a solution that was acceptable to the Executive Committee of the Owners Corporation. However, the evidence of another expert plumber was that it may be an effective remedy for a short period, especially if the bathroom is more appropriately used. The Tribunal found in such circumstances that it was not necessary or appropriate to order that Mr Perkins undertake a complete bathroom renovation and that he was entitled to try the ‘Megaseal’ treatment. Obviously if it did not work he would be required to try something else.
Accordingly on 8 December 2016 the Tribunal made the following Orders:
1. The respondent is to ensure that the tiling, grouting and sealing in his bathroom is maintained in a manner that ensures that water egress from the bathroom to the slab is unlikely to cause damage to the slab, neighbouring units or other common areas of the complex.
2. The respondent is to arrange for appropriate work to be undertaken within 90 days of the date of this Order.
3. The respondent is to ensure that the work is undertaken to a professional standard by appropriately licensed or qualified tradespeople.
4. The respondent is to provide a report to the Owners Corporation confirming:
(a) that the bathroom is water resistant to an acceptable standard, having regard to the age and construction of the building; and
(b) that any risk of water egress to the slab or damage to the unit below has been minimised; and(c) how long the remedy is likely to last.
Mr Perkins gave evidence in this Court by way of affidavit dated 15 March 2018 deposing that he had sought to comply with the Orders made by the Tribunal. He did so by engaging SealMasters ACT in February 2017 to undertake the ‘Megaseal’ style treatment to the bathroom of his unit. At the time the treatment was undertaken he was advised that it would most likely take 6 months for the areas that were saturated to fully dry out. He advised that in March 2017 he received a further communication that there were still leaks into unit 34. Immediately he did a further inspection of the bathroom and took further steps to re-silicon the taps to attempt to ascertain the reason for the water egress. He also undertook additional work in the bathroom to try to limit excessive moisture within the bathroom by installing two exhaust fans in the ceiling of the bathroom to vent any moist air within the bathroom.
The Application
The Enforcement Creditor has now made an application to this Court (filed on 3 October 2017) seeking the following Orders:
1. A declaration that the Enforcement Debtor has breached Order 1 of the Orders made by the ACT Civil and Administrative Tribunal … on 8 December 2016 (‘the Orders’) in that he has not ensured that the tiling, grouting and sealing in his bathroom is maintained in a manner that ensures that water egress from the bathroom to the slab is unlikely to cause damage to the slab, neighbouring units or other common areas of the complex.
2. A declaration that the Enforcement Debtor has breached Order 2 of the Orders in that he has not arranged for appropriate work to be undertaken within 90 days of the date of the Orders.
3. A declaration that the Enforcement Debtor has breached Order 3 of the Orders in that he has not ensured that the work is undertaken to a professional standard.
4. Pursuant to rule 2506 of the Court Procedure Rules 2006 an Order that the Enforcement Debtor be punished for contempt.
5. Pursuant to rule 2470 of the Court Procedure Rules 2006 an Order authorising an enforcement officer to seize and detain the apartment known as unit 35, 6 MacLaurin Crescent Chifley in the ACT.
6. Pursuant to rule 2442(4) of the Court Procedure Rules 2006 an Order that:
(a)the Enforcement Creditor be appointed to carry out the acts required by the Orders;
(b)the Enforcement Creditor be given access to the apartment by the enforcement officer for the purpose of having a suitably qualified tradesperson carry out the acts required by the Orders; and
(c) the Enforcement Debtor be liable for the costs and expenses incurred by the enforcement creditor in having its suitably qualified tradesperson carry out the acts required by the Orders.
7. Costs
8. Any other Orders that the Court considers appropriate.
Consideration
The Enforcement Creditor relied on the affidavit of Caroline Mitchell affirmed on 8 September 2017. This affidavit exhibited a number of documents including: (a) the Orders and Reasons for Decision of the Tribunal dated 8 December 2016; (b) a letter from SealMasters ACT dated 3 April 2017 advising that the risk of water egress to the slab or damage to the unit below arising from water penetrating the tiling, grouting and ceiling of the bathroom has been minimised and that the work done resealing the bathroom is likely to last for a period of 5 years; (c) a further letter from SealMasters ACT dated 7 March 2017 itemising the work completed by SealMasters; and (d) a report prepared by Peter Leary, Peak Consulting, dated 4 July 2017.
In that original July 2017 report Mr Leary observed that: “The continued leaking from bathroom 35 into unit 34 is a direct result of the failure of the waterproofing membrane (if present) of unit 35 bathroom/ laundry. The ongoing use of unit 35 bathroom/ laundry is contributing to water penetration through the actual wall tiles and into the masonry structure of the walls and floor. Water penetration saturates the masonry substrate and according to the findings and observations, eventuates in water dripping into and onto the ceiling of unit 34 bathroom and through the duct riser of the sewer waste vent stack work.” His recommendation then was, based on the Australian Standard ‘AS 3740-2004 Water proofing of wet areas within residential buildings’: “Unit 35 bathroom/ laundry will require a complete refurbishment. This refurbishment will require all wall and floor tiles to be removed, all internal components including those already substantially damaged by water penetration to be removed. A new waterproofing membrane shall be designed and installed in order to provide a fit for purpose performance solution to prevent water exiting the confines of the subject wet area. The refurbishment will require replacement of internal components including those already substantially damaged.” It is clear that although it was not required by the Tribunal, in accordance with this recommendation the complete refurbishment of the bathroom remained the only acceptable course for the Enforcement Creditor. It is also worth noting that at the time the unit building was built, such waterproofing of wet areas was not required.
The Enforcement Debtor relied on his affidavit sworn 15 March 2018. It annexed a further report of Mr Peter Leary dated 21 December 2017, written after he conducted another inspection of the property in December 2017. Mr Leary stated that there was a significant reduction in the moisture content of all areas investigated, there was no ongoing evidence of water egress from the bathroom of unit 35, and there was no evidence of conditions conducive to cause damage to unit 34 or the slab at the time of his inspection. Mr Leary stated that all moisture readings taken were noted to be significantly lower than those taken in July 2017 and that structures of this type, due to its masonry construction, often take a significant time to dry.
Mr Leary expressed the opinion that there was “no form of topical treatment able to be applied to the existing bathroom fitout which would sufficiently eliminate all possible risk of water egress into the ceiling cavity of unit 34” and suggested that the reduction in moisture may have been a seasonal variation. However, the Orders of the Tribunal did not require the elimination of “all possible risk”. Although it appeared he still maintained his original stance that a complete refurbishment was required, he did not say that the steps the Enforcement Debtor had taken were of no value in achieving the result required by the Tribunal Orders.
Ultimately the complete refurbishment of the bathroom in unit 35 may be the best solution for everyone concerned, but that is not the question before me.
Has the Enforcement Debtor breached the Tribunal Orders?
In relation to Order 1 of the ACAT Orders of 8 December 2016, the evidence before me is that there was most recently no evidence of water egress from the bathroom of unit 35, and certainly none that was likely to cause damage to the slab, neighbouring units or other common areas of the complex. Accordingly there is no evidence on which I could find that the Enforcement Debtor had breached the first Order.
In relation to Order 2, Mr Perkins arranged within 90 days of the date of the Order for SealMasters ACT to apply their treatment. It appears that despite the Tribunal finding that Mr Perkins is entitled to try the ‘Megaseal’ treatment (at paragraph 49 of the Reasons for Decision), the Owners Corporation have formed the view that the ‘Megaseal’ treatment is not ‘appropriate work’ in accordance with the wording of the Order. As I stated above, at this stage all evidence points to the conclusion that there is no water egress from the bathroom of unit 35 and accordingly I find on the balance of probabilities that it was ‘appropriate work’.
This finding is also relevant to whether Mr Perkins has complied with Order 3. The Tribunal considered evidence in relation to the ‘Megaseal’ treatment and I can only assume that given its findings it was satisfied that the company properly authorised to perform such treatment in the ACT and that the Enforcement Debtor proposed to use, was so appropriately licensed or qualified. There is no evidence before me that SealMasters ACT were not such licensed or qualified tradespeople, and there is no evidence before me that their application of the ‘Megaseal’ treatment was not undertaken to a professional standard. The Enforcement Creditor cannot take their pre-formed view that the ‘Megaseal’ treatment is not sufficient to comply with appropriate waterproofing standards and seek to impose that standard in relation to the Orders of the Tribunal. I note the appropriate report was provided to the Enforcement Creditor as required by Order 4 of the Tribunal’s Orders.
Having found that the Enforcement Debtor has not breached the Orders of the Tribunal, the application for Orders 4, 5, and 6 is otiose. I note in fact that no submissions were made on behalf of the Enforcement Creditor in relation to the appropriateness of such Orders. Indeed I am of the view that even were I to find that the Orders had been breached, in the circumstances of this case an application that the Enforcement Debtor be punished for contempt is overly heavy handed and entirely inappropriate.
Findings
Accordingly, I find on the balance of probabilities that the Enforcement Debtor has complied with the Orders of the Tribunal dated 8 December 2016 and the Enforcement Creditor’s application filed on 3 October 2017 is dismissed.
I note the Enforcement Debtor also seeks an award of costs against the Enforcement Creditor (see paragraph 33 of the affidavit of Jason Perkins) and accordingly, I Order that the Enforcement Creditor pay the Enforcement Debtor’s costs to be agreed or taxed.
| I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Decision of her Honour Magistrate Fryar. Associate: Emma Bayliss Date: 24 August 2018 |
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