The Owners Of Strata Plan 57895 and Pyramid Constructions (WA) Pty Ltd
[2017] WASAT 4
•11 JANUARY 2017
THE OWNERS OF STRATA PLAN 57895 and PYRAMID CONSTRUCTIONS (WA) PTY LTD [2017] WASAT 4
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 4 | |
| BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) | |||
| Case No: | CC:521/2016 | 4 AND 5 OCTOBER 2016 | |
| Coram: | MR C RAYMOND (SENIOR SESSIONAL MEMBER) MR J FISHER (SENIOR SESSIONAL MEMBER) | 11/01/17 | |
| 48 | Judgment Part: | 1 of 1 | |
| Result: | Complaint upheld in part and dismissed in part | ||
| B | |||
| PDF Version |
| Parties: | THE OWNERS OF STRATA PLAN 57895 PYRAMID CONSTRUCTIONS (WA) PTY LTD |
Catchwords: | Building Services (Complaint Resolution and Administration) Act 2011 (WA) Complaints by individual lot owners in strata scheme and by strata company in respect of same alleged faulty and unsatisfactory regulated building services Whether applicant or strata company the appropriate complainant Whether party can rely on expert report when expert does not participate in expert conferral and not called to give evidence Whether regulated building service not carried out in a proper and proficient manner, or faulty or unsatisfactory Whether carrying out variation in compliance with contract but not in compliance with building licence unsatisfactory work or work not carried out in proper and proficient manner Whether justice of the case requires costs award Effect of s 83 of State Administrative Tribunal Act 2004 (WA) |
Legislation: | Building Code of Australia Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(1), s 11(1)(d) Legal Practitioners (State Administrative Tribunal) Determination 2012 (WA) Legal Profession Act 2008 (WA) State Administrative Tribunal Act 2004 (WA), s 87, s 87(3) Strata Titles Act 1985 (WA), s 17, s 33 |
Case References: | Cachia v Hanes (1994) 179 CLR 403 Hoskins and Daniel Vinci t/as D'Vinci Contracting [2011] WASAT 188 Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S) McNab and Pyramid Constructions (WA) Pty Ltd [2017] WASAT 3 Rainbow Pty Ltd and Hawkins & Anor [2007] WASAT 216 (S) |
Orders | 1. Leave is granted to withdraw the following complaint items and the complaint items are withdrawn, namely, items 1.3 to 1.8 inclusive, 1.10, 2.4, 3.3, 4.2, 4.4, 4.6, 5.2 to 5.4 inclusive,7.3, 7.5, 7.8, 8.5, 8.6, 11.1, 12.1, 12.3, 12.7, 13.4, 13.5, 13.7, 13.8, 14.6, 16.3, 17.9, 19.5, 19.7, 19.8, 22.2, and 25.1 to 25.8 inclusive.,2. The following complaint items are dismissed, namely, items 1.2, 2.2, 2.3, 2.5, 3.2, 4.3, 4.5, 5.5, 5.6, 6.1 to 6.5 inclusive,7.1, 7.2, 7.6, 7.7,8.3, 9.1(i) to (iii) inclusive, 9.4, to 9.7 inclusive, 12.2, 12.4 to 12.6 inclusive, 13.3,13.6, 13.6.1, 14.2, 14.3, 14.7, 16.2, 16.5, 17.1 to 17.4 inclusive, 17.7, 17.8, 17.10, 18.2, 18.4 to 18.7 inclusive, 19.2 to 19.4 inclusive, 19.6, 21.1 to 21.24 inclusive, and 26.1 to 26.6 inclusive.,3. By consent and in settlement of complaint item 18.1 the respondent must on or before 8 February 2017 and at Lot 18 remedy the water damage to the living room ceiling and do all things necessary to achieve an aesthetically acceptable result.,4. Pursuant to s 36(1)(a) of the Building Services (Complaint Resolution and Administration) Act 2004 (WA) the respondent must on or before 7 March 2017 and at the strata scheme known as Urbano Uno at 128 Brown Street, East Perth, carry out the following remedial work.,(a) Lot 1,(i) Complaint 1.1 - Bedroom 1 - moisture damage below window,Action required,Take all necessary action in a proper and proficient manner to remove the cause and effect of water damage and to achieve an aesthetically acceptable result. ,(ii) Complaint 1.9 - Dining room - ceiling to wall crack,Action required,Take all necessary action in a proper and proficient manner to remove the cause and effect of the ceiling to wall crack and to achieve an aesthetically acceptable result. ,(b) Lot 2,(i) Complaint 2.1 - Bedroom1 - water ingress window frame and damage to wall,Action required,Take all necessary action in a proper and proficient manner to remove the cause and effect of water ingress through the window frame and damage to the wall and to achieve an aesthetically acceptable result. ,(c) Lot 3,(i) Complaint 3.1 - Bedroom 2 - roof leak in corner of ceiling closest to balcony,Action required,Take all necessary action to in a proper and proficient manner remove the cause and effect of the roof leak in corner of ceiling closest to balcony and to achieve an aesthetically acceptable result.,(d) Lot 4,(i) Complaint 4.1 - Floor boards rising and bowing,Action required,Take all necessary action in a proper and proficient manner to remove the cause and effect of the floor boards rising and bowing and to achieve an aesthetically acceptable result.,(e) Lot 5,(i) Complaint 5.1 - Bedroom 1 - water ingress from the external slab and adjacent brickwork nib,Action required,Take all necessary action in a proper and proficient manner to remove the cause and effect of water ingress from the external slab and adjacent brickwork nib and to achieve an aesthetically acceptable result.,(f) Lot 7,(i) Complaint 7.4 - Bedroom 2 - wall damp and paint bubbling,Action required,Take all necessary action in a proper and proficient manner to remove the cause and effect of damp in the wall and paint bubbling and to achieve an aesthetically acceptable result.,(g) Lot 8,(i) Complaint 8.1 - Dining room - window ingress into dining area above window, mould on cornice, moisture damaging metal work and sill, damage to outside area above window,Action required,Take all necessary action in a proper and proficient manner to remove the cause and effect of water ingress, mould and damage to metal work, sill and outside area and to achieve an aesthetically acceptable result.,(ii) Complaint 8.2 - Dining room - water ingress evident on southwest floor and lower wall area of dining room, mould growing on wall,Action required,Take all necessary action in a proper and proficient manner to remove the cause and effect of water ingress, mould and damage to metal work, sill and outside area and to achieve an aesthetically acceptable result.,(iii) Complaint 8.4 - Bathroom - inaccessible exhaust fan,Action required,Take all necessary action in a proper and proficient manner to ensure access is provided to the exhaust fan and to achieve an aesthetically acceptable result.,(h) Lot 9,(i) Complaint 9.1(iv) - Water ingress to the right of the window in the west facing bedroom wall and mould on the wall,Action required,Take all necessary action in a proper and proficient manner to remove the cause and effect of water ingress and mould and to achieve an aesthetically acceptable result.,(ii) Complaint 9.2(i) - South facing window has water ingress and mould,Action required,Take all necessary action in a proper and proficient manner to remove the cause and effect of water ingress and mould and to achieve an aesthetically acceptable result.,(iii) Complaint 9.2(ii) - Water ingress to the left of the south facing window and mould from ceiling to the floor in the corner affecting carpet and skirting boards to the right of the window,Action required,Take all necessary action in a proper and proficient manner to remove the cause and effect of water ingress and mould, damage to skirting boards and carpet (by cleaning, repair or replacement) and to achieve an aesthetically acceptable result.,(iv) Complaint 9.2(iii) - The ceiling corner to the left of the south facing window has mould and water ingress,Action required,Take all necessary action in a proper and proficient manner to remove the cause and effect of water ingress and mould and to achieve an aesthetically acceptable result.,(v) Complaint 9.3 - Ensuite - shower recess has about 10 drummy tiles,Action required,Take all necessary action in a proper and proficient manner to remove and replace tiles as necessary and to achieve an aesthetically acceptable result.,(i) Lot 13,(i) Complaint 13.1 - Bedroom 1 - water ingress at bottom right corner of main feature window with mould and bubbling plaster,Action required,Take all necessary action in a proper and proficient manner to remove the cause and effect of water ingress, mould and bubbling plaster and to achieve an aesthetically acceptable result.,(ii) Complaint 13.2 - Bedroom 2 - water ingress at bottom of window sill with bubbling plaster and paint,Action required,Take all necessary action in a proper and proficient manner to remove the cause and effect of water ingress, mould, bubbling plaster and paint and to achieve an aesthetically acceptable result.,(j) Lot 14,(i) Complaint 14.1 - Living room - moisture evident to ceiling and wall near living area window,Action required,Take all necessary action in a proper and proficient manner to remove the cause and effect of moisture evident to ceiling and wall near living area window and to achieve an aesthetically acceptable result.,(ii) Complaint 14.4 - Living room - moisture is evident to the floor and wall near the living area window (southwest corner),Action required,Take all necessary action in a proper and proficient manner to remove the cause and effect of moisture evident to the floor and wall near living area window (southwest corner) and to achieve an aesthetically acceptable result.,(iii) Complaint 14.5 - Bedroom 1 - previous repairs to water damage near the bedroom window evidence burst air bubbles from plaster mixture applied,Action required,Take all necessary action in a proper and proficient manner to remediate previous repairs and remove the cause and effect of bubbles in plaster and to achieve an aesthetically acceptable result.,(k) Lot 16,(i) Complaint 16.1 - Bedroom 2 - window drainage or flashing system inadequate resulting in water permeating brickwork and affecting plaster,Action required,Take all necessary action in a proper and proficient manner to remove the cause and effect of water permeating brickwork and affecting plaster and to achieve an aesthetically acceptable result.,(ii) Complaint 16.4 - Balcony - base of column and awning support bracket rusting,Action required,Take all necessary action in a proper and proficient manner to remove the cause and effect of rusting of support bracket and to achieve an aesthetically acceptable result.,(l) Lot 17,(i) Complaint 17.5 - Bedroom 1 window - window leaks causing damp in walls and aid in mould growth,Action required,Take all necessary action in a proper and proficient manner to remove the cause and effect of window leak damp in walls and mould and to achieve an aesthetically acceptable result.,(ii) Complaint 17.6 - Bedroom 1 - vertical crack,Action required,Take all necessary action in a proper and proficient manner to remove the cause and effect of the vertical crack and to achieve an aesthetically acceptable result.,(m) Lot 18,(i) Complaint 18.3 - Bedroom 1 - water damage to wall, skirting and carpet,Action required,Take all necessary action in a proper and proficient manner to remove the cause and effect of water damage to wall, skiting and carpet (by cleaning, repair or replacement) so and to achieve an aesthetically acceptable result.,(n) Lot 19,(i) Complaint 19.1 - Living room skirting board in southwest corner has come apart apparently due to water ingress,Action required,Take all necessary action in a proper and proficient manner to remove the cause and effect of water ingress including repair or replacement of the skirting board and to achieve an aesthetically acceptable result.,(o) Lot 20,(i) Complaint 20.1 - Bedrooms - water leaking through all bedroom windows causing damage to sills, walls and plaster,Action required,Take all necessary action in a proper and proficient manner to remove the cause and effect of water leaking through windows and damage to sills, walls and plaster and to achieve an aesthetically acceptable result.,(p) Lot 22,(i) Complaint 22.1 - Ceiling tiles - water leak stains on several ceiling tiles,Action required,Take all necessary action in a proper and proficient manner to remove the cause and effect of staining to ceiling tiles and to achieve an aesthetically acceptable result.,(q) Lot 24,(i) Complaint 24 - Leaks in boardroom ceiling and six leaks through slab,Action required,Take all necessary action in a proper and proficient manner to remove the cause and effect of leaks in ceiling and through slab and to achieve an aesthetically acceptable result.,5. The respondent must within the time stated in order 4 above make good any damage resulting from compliance or attempted compliance with order 4.,6. The respondent must on or before 31 January 2017 pay to the applicant costs fixed in the sum of $15,986.75 being:,(a) $9,380 in respect of expert witness fees;,(b) $1,360 in respect of legal fees; and,(c) $5,246.75 in respect of costs of investigation and compilation of the Complaint Schedule.,7. The parties have liberty to apply in the event that any practical difficulty arises in complying with orders 4 or 5 above.,8. The applicant must within seven days of receipt of these reasons for decision give a copy thereof to the individual owners of lots within the strata scheme who applied separately to the Tribunal for orders in respect of the same items of complaint the subject of these proceedings, namely, the owners of lots 2, 6, 9, 16, 17, 18, 21, 22 and 24. |
Summary | The applicant and 10 lot owners in a strata scheme comprising 24 lots lodged complaints with the Building Commissioner under s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) against the respondent. All of the complaints were advanced as separate complaints but were heard together with the evidence being evidence in all matters.,The applicant's complaints in relation to the 10 lots, the subject of separate proceedings, were identical to those made by the proprietors of those lots. It was necessary for the Tribunal to determine whether the applicant or individual proprietor was entitled to advance the duplicated complaints. The Tribunal found that one particular complaint could not be advanced by the applicant and it was dismissed while three complaints which the applicant had acquiesced in an individual owner pressing in his own right were found to be complaints which only the applicant could advance.,The Tribunal considered 158 complaint items. Many of the complaint items were not pressed on the basis that it had been advised the complaint was withdrawn either well prior to, shortly before, or at the hearing based on a joint expert report following conferral in accordance with the Tribunal's usual practice. The Tribunal granted leave to withdraw the complaint items sought to be withdrawn as well as in respect of a number of complaint items which the respondent had remedied by the date of the expert conferral. Also based on the joint expert report the respondent advised the Tribunal that it consented to remedial work orders in respect of many items of complaint.,The applicant applied for legal costs, payment of expert witness fees and the cost of investigation and compilation of its Complaint Schedule. The Tribunal found that the justice of the case called for a costs order in favour of the applicant. Save in one respect the applicant had necessarily to incur the costs claimed and could not otherwise have advanced its case, which had been disputed to a significant extent by the respondent until shortly before the hearing. The exception related to costs incurred in respect of a particular expert witness concerning ventilation issues on which the applicant was unsuccessful and all of the costs of that witness were disallowed.,The Tribunal held that s 87(3) of the State Administrative Tribunal Act 2004 (WA) allowed costs to be awarded in respect of legal advice given by solicitors who had not appeared in the proceedings, as well as costs incurred in having persons other than a legal practitioner investigate and assist in the compilation of a Complaint Schedule. The Tribunal was satisfied that the task was of a factual nature involving assessment of whether or not building work was faulty or unsatisfactory customarily undertaken by building consultants rather than legal practitioners.,Having regard to all of the circumstances of the case the Tribunal determined that the appropriate course was for the applicant to be allowed one half of the costs reasonably and necessarily incurred. The total costs claimed were assessed by the Tribunal and were reduced from the total claimed of $43,841.81 to the amount fixed by the Tribunal of $15,986.75. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) CITATION : THE OWNERS OF STRATA PLAN 57895 and PYRAMID CONSTRUCTIONS (WA) PTY LTD [2017] WASAT 4 MEMBER : MR C RAYMOND (SENIOR SESSIONAL MEMBER)
- MR J FISHER (SENIOR SESSIONAL MEMBER)
- Applicant
AND
PYRAMID CONSTRUCTIONS (WA) PTY LTD
Respondent
Catchwords:
Building Services (Complaint Resolution and Administration) Act 2011 (WA) Complaints by individual lot owners in strata scheme and by strata company in respect of same alleged faulty and unsatisfactory regulated building services Whether applicant or strata company the appropriate complainant Whether party can rely on expert report when expert does not participate in expert conferral and not called to give evidence Whether regulated building service not carried out in a proper and proficient manner, or faulty or unsatisfactory Whether carrying out variation in compliance with contract but not in compliance with building licence unsatisfactory work or work not carried out in proper and proficient manner Whether justice of the case requires costs award Effect of s 83 of State Administrative Tribunal Act 2004 (WA)
Legislation:
Building Code of Australia
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(1), s 11(1)(d)
Legal Practitioners (State Administrative Tribunal) Determination 2012 (WA)
Legal Profession Act 2008 (WA)
State Administrative Tribunal Act 2004 (WA), s 87, s 87(3)
Strata Titles Act 1985 (WA), s 17, s 33
Result:
Complaint upheld in part and dismissed in part
Summary of Tribunal's decision:
The applicant and 10 lot owners in a strata scheme comprising 24 lots lodged complaints with the Building Commissioner under s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) against the respondent. All of the complaints were advanced as separate complaints but were heard together with the evidence being evidence in all matters.
The applicant's complaints in relation to the 10 lots, the subject of separate proceedings, were identical to those made by the proprietors of those lots. It was necessary for the Tribunal to determine whether the applicant or individual proprietor was entitled to advance the duplicated complaints. The Tribunal found that one particular complaint could not be advanced by the applicant and it was dismissed while three complaints which the applicant had acquiesced in an individual owner pressing in his own right were found to be complaints which only the applicant could advance.
The Tribunal considered 158 complaint items. Many of the complaint items were not pressed on the basis that it had been advised the complaint was withdrawn either well prior to, shortly before, or at the hearing based on a joint expert report following conferral in accordance with the Tribunal's usual practice. The Tribunal granted leave to withdraw the complaint items sought to be withdrawn as well as in respect of a number of complaint items which the respondent had remedied by the date of the expert conferral. Also based on the joint expert report the respondent advised the Tribunal that it consented to remedial work orders in respect of many items of complaint.
The applicant applied for legal costs, payment of expert witness fees and the cost of investigation and compilation of its Complaint Schedule. The Tribunal found that the justice of the case called for a costs order in favour of the applicant. Save in one respect the applicant had necessarily to incur the costs claimed and could not otherwise have advanced its case, which had been disputed to a significant extent by the respondent until shortly before the hearing. The exception related to costs incurred in respect of a particular expert witness concerning ventilation issues on which the applicant was unsuccessful and all of the costs of that witness were disallowed.
The Tribunal held that s 87(3) of the State Administrative Tribunal Act 2004 (WA) allowed costs to be awarded in respect of legal advice given by solicitors who had not appeared in the proceedings, as well as costs incurred in having persons other than a legal practitioner investigate and assist in the compilation of a Complaint Schedule. The Tribunal was satisfied that the task was of a factual nature involving assessment of whether or not building work was faulty or unsatisfactory customarily undertaken by building consultants rather than legal practitioners.
Having regard to all of the circumstances of the case the Tribunal determined that the appropriate course was for the applicant to be allowed one half of the costs reasonably and necessarily incurred. The total costs claimed were assessed by the Tribunal and were reduced from the total claimed of $43,841.81 to the amount fixed by the Tribunal of $15,986.75.
Category: B
Representation:
Counsel:
Applicant : Mr S McDonald (As Agent)
Respondent : Mr R Shaw
Solicitors:
Applicant : N/A
Respondent : Lavan Legal
Case(s) referred to in decision(s):
Cachia v Hanes (1994) 179 CLR 403
Hoskins and Daniel Vinci t/as D'Vinci Contracting [2011] WASAT 188
Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S)
McNab and Pyramid Constructions (WA) Pty Ltd [2017] WASAT 3
Rainbow Pty Ltd and Hawkins & Anor [2007] WASAT 216 (S)
Introduction
1 The applicant, the Owners of Strata Plan 57895 (strata company), lodged a complaint with the Building Commissioner pursuant to s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA)(BSCRA Act) relating to a regulated building service provided by Pyramid Constructions (WA) Pty Ltd (Pyramid) in the construction of a multistorey strata titled apartment building at 128 Brown Street, East Perth. The name of the strata scheme is Urbano Uno.
2 It appears that lot owners in respect of 10 of the total number of 24 lots within the strata scheme lodged complaints completely overlapping the items of complaint made by the strata company to avoid the risk of any complaint item failing by reason of lack of standing. Under s 33 of the Strata Titles Act 1985 (WA) (ST Act) where the proprietors of lots the subject of a scheme are jointly entitled to take proceedings the strata company is expressly empowered to take the proceedings. The owners of such lots are entitled to jointly take proceedings in respect of the common property included within the scheme as common property is held by the proprietors as tenants in common in shares proportional to their unit entitlements (s 17 ST Act). On the other hand, a strata company has no standing to make a claim in respect of damage to a lot the title of which is held by the proprietor thereof.
3 All of these complaints were referred by the Building Commissioner to the Tribunal for determination pursuant to s 11(1)(d) of the BSCRA Act.
4 The 11 separate matters were listed for hearing over three days commencing on 4 October 2016. Due primarily to the extent of agreement reached by the expert witnesses in conferral prior to the hearing in accordance with the Tribunal's usual practices, the hearing was concluded in two days. The matters had not been consolidated. At the commencement of the hearing the Tribunal directed that the matters be heard together and that the evidence be evidence in all matters. The strata company, and individual lot owners, save for a Mr McNab (the owner of Lot 21), seek remedial work orders in respect of their complaints.
5 While separate reasons will need to be given in each other matter it will be possible to incorporate by reference aspects of the reasons which follow to avoid unnecessary repetition.
The issues
6 The resolution of the following issues will be determinative of the matter.
1) In respect of each item of complaint is the strata company or the individual lot owner the appropriate complainant entitled to any remedy?
2) Has the building work the subject of each item of complaint been carried out in a manner which is not proper or proficient or which is faulty or unsatisfactory?
3) Should the strata company be entitled to an award of costs for recovery of legal costs, expert witness fee and costs of investigation and compilation of the Complaint Schedule in the sum of $43,841.81?
The appropriate complainant
7 The strata company is obviously the appropriate complainant in relation to any complaint item forming part of the common property as provided by s 33 of the ST Act referred to above.
8 In its decision in McNab and Pyramid Constructions (WA) Pty Ltd [2017] WASAT 3 (McNab), the Tribunal considered whether an individual owner could make a complaint in respect of common property and in the circumstances in which this complaint and the related complaints by individual owners had been made and conducted, held that Mr McNab was not entitled to advance any complaints related to common property. For the reasons given in that decision, which we incorporate by reference, because the individual owners and Pyramid are happy for the strata company to make and advance the complaints in these proceedings we will adopt a pragmatic view of the issue. Where the evidence is not clear that the complaint item relates to part of a lot we will proceed on the basis that it relates to common property.
Has the building work the subject of each item of complaint been carried out in a manner which is not proper or proficient or which is faulty or unsatisfactory and if the latter, what amount should be awarded?
9 Expert evidence was given in relation to the matters in issue in this matter by the following witnesses:
• for the strata company - Mr Timothy John Wilson, a consulting engineer, and Mr Chintana Saman Athukorala, a mechanical engineer, (who both provided written reports dated 22 July 2016 and 19 July 2016 respectively);
• for Pyramid - Mr Richard Charles Machell, a builder and building consultant, (who also provided a written report dated 26 August 2016); and
• for Mr McNab - Mr Neville Ivan Harrison, a builder and building consultant, (who also provided written reports dated September 2012 and July 2016).
10 All experts attended a joint conferral conference and in accordance with the Tribunal's usual practice signed a joint expert report. Messrs Harrison, Machell and Wilson focussed on all building work issues while Mr Athukorala addressed only complaints related to ventilation issues.
11 In a letter to the Tribunal dated 3 October 2016 (the day before the hearing) and copied to all parties, the solicitors for Pyramid endeavoured to categorise the various claims based largely, as we understand, on the agreements reached by the expert witnesses in the joint expert report (Pyramid's 3 October 2016 letter). In Pyramid's 3 October 2016 letter it set out the complaint items in the following categories:
• those agreed as requiring an order to remedy or pay;
• the complaints in common with a number of proceedings relating to a missing exhaust vent in the various bathrooms;
• the complaint items already compromised in proceedings before the Building Commission;
• the matters rejected by the expert witnesses or which were withdrawn; and
• the other live issues.
12 The strata company and all individual applicants present were understood to have agreed with the categorisation by Pyramid save in relation to a few particular complaint items and those items have been addressed below based on any qualification expressed.
13 We address the expert evidence in considering each complaint item below. In many instances the complaint items can be dealt with very briefly as the expert witnesses are in agreement and the Tribunal accepts their view. The complaint items raised in the strata company's complaint are numbered to coincide with the particular lot number associated with the complaint item. That numbering was repeated in the complaints of the 10 owners who have made their own complaints. We have adopted the same numbering.
Lot 1
14 The complaints in relation to Lot 1 are advanced only by the strata company, there being no corresponding complaint by the proprietor of Lot 1.
Complaint 1.1 - Bedroom 1- moisture damage below window
15 The expert witnesses agreed in the joint expert report prepared in accordance with the Tribunal's usual practice, that the moisture damage below the window of bedroom 1 reflects faulty workmanship. Pyramid in its 3 October 2016 letter agrees that a remedial work order should issue and it will be so ordered.
Complaint 1.2 - Moisture damage on ceiling/wall above vanity and shower in bathroom
16 The expert witnesses agreed in the joint expert report that existing moisture levels are minor, inconsistent with an active floor/wall leak and could be as a result of a number of possible causes. It was not suggested that the other possible causes reflected faulty, unsatisfactory work or work not carried out in a proper and proficient manner by Pyramid. We accept this evidence.
17 This complaint item will accordingly be dismissed.
Complaint items 1.3 to 1.8 and 1.10
18 The Complaint Schedule reflects that complaint items 1.3 to 1.8 and 1.10 were withdrawn. Those items were not addressed by the expert witnesses in their joint report. An order will accordingly issue granting leave to withdraw and withdrawing these complaint items.
Complaint 1.9 - Dining room - ceiling to wall crack
19 The expert witnesses agreed in the joint expert report that the crack reflects faulty workmanship. Pyramid in its 3 October 2016 letter agrees that a remedial work order should issue and it will be so ordered.
Lot 2
20 The complaints in relation to Lot 2 are advanced by the strata company and by the proprietor of Lot 2, Mr Xi Lin.
Complaint 2.1 - Bedroom1 - water ingress window frame and damage to wall
21 The expert witnesses agreed in the joint expert report that the crack reflects faulty workmanship. Pyramid in its 3 October 2016 letter agrees that a remedial work order should issue and it will be so ordered.
Complaint 2.2 - Dining room - small cracks on top of corner window door to balcony
22 The expert witnesses agreed in the joint expert report that the crack does not constitute faulty workmanship. We accept that evidence.
23 The strata plan shows that the division between the interior of Lot 2 and the balcony, which must comprise of what is described as the window door, is totally within Lot 2. The strata company is not entitled to advance this complaint. It follows however that the complaint advanced by the proprietor will also fall to be dismissed because the work is not faulty, unsatisfactory nor has it been carried out in a manner which is not proper or proficient.
Complaint 2.3 - Water ingress to bathroom
24 The expert witnesses agreed in the joint expert report that no water ingress could be identified. We accept that evidence and the complaint will accordingly be dismissed.
Complaint 2.4 - Broken skirting
25 The expert joint report reflects that this item had already been remedied by Pyramid. In its 3 October 2016 letter Pyramid identified this complaint as being withdrawn or rejected by the experts.
26 We consider that the appropriate order is that leave be granted to withdraw the complaint item and that it be withdrawn.
Complaint 2.5 – Kitchen - rangehood installed without air filters
27 The expert joint report reflects that this item is not faulty or unsatisfactory. That conclusion was not challenged by any party. In its 3 October 2016 letter Pyramid identified this complaint as being withdrawn or rejected by the experts.
28 We consider that the appropriate order is that this complaint item be dismissed.
Lot 3
29 The complaints in relation to Lot 3 are advanced only by the strata company, there being no corresponding complaint by the proprietor of Lot 3.
Complaint 3.1 - Bedroom 2 - roof leak in corner of ceiling closest to balcony
30 The expert witnesses agreed in the joint expert report that the crack reflects faulty workmanship. Pyramid in its 3 October 2016 letter agrees that a remedial work order should issue and it will be so ordered.
Complaint 3.2 - Bedroom 2 - window leak
31 The expert joint report reflects that this item is not faulty or unsatisfactory. That conclusion was not challenged by any party. In its 3 October 2016 letter Pyramid identified this complaint as being withdrawn or rejected by the experts.
32 We consider that the appropriate order is that this complaint item be dismissed.
Complaint 3.3 - Rangehood installed without filters
33 The Complaint Schedule reflects this complaint item is withdrawn and consequently the expert witnesses did not address this item in their joint report.
34 An order will issue granting leave to withdraw and withdrawing this item.
Lot 4
35 The complaints in relation to Lot 4 are advanced only by the strata company, there being no corresponding complaint by the proprietor of Lot 4.
Complaint 4.1 - Floor boards rising and bowing
36 The expert witnesses agreed in the joint expert report that the crack reflects faulty workmanship. Pyramid in its 3 October 2016 letter agrees that a remedial work order should issue and it will be so ordered.
Complaint 4.2 - Balcony water pooling
37 The Complaint Schedule reflects this complaint item is withdrawn and consequently the expert witnesses did not address this item in their joint report.
38 An order will issue granting leave to withdraw and withdrawing this item.
Complaint 4.3 - Exhaust vent missing in bathroom
39 The complaint is that the drawings approved by the City of Perth show an exhaust grille in the laundry and bathroom but no vent has been installed in the bathroom.
40 Mr Athukorala dealt with this issue in relation to other apartments, namely, units/lots 13 and 18 but it is not in issue that the situation in Unit 4 is identical.
41 The joint expert report reflects if the vent had been installed in accordance with the approved drawings it would have performed better than that as constructed.
42 Pyramid was required by the terms of the building licence to construct in accordance with the approved drawings. The experts agreed that it was unsatisfactory for Pyramid not to have applied to the licensing authority to amend the building licence. Whether building work is unsatisfactory, or as we think the experts intended to suggest, that it had not been carried out in a proper and proficient manner, is of course an ultimate conclusion which only the Tribunal can determine.
43 Mr Athukorala in his report recorded that the missing vent was removed in accordance with amended mechanical service design drawings which was also confirmed by Mr Maseryk, a director of Pyramid. Mr Maseryk stressed that Pyramid is a builder not a mechanical engineer and that it had no reason to challenge the amendment with which it was contractually bound to comply. Mr Athukorala's report acknowledges that the as constructed system complies with the relevant Australian Standard AS1668.2. In his oral evidence Mr Athukorala stated that he could not say the as constructed system did not comply with the Building Code of Australia (National Construction Code).
44 By not applying for an amendment to the building licence we find Pyramid did not carry out the building works in a manner which is technically proper and proficient. But no consequence flows from this. There is nothing to suggest that if such application had been made it would not have been approved, and the work itself is not faulty or unsatisfactory simply because another system would work better than it.
45 This complaint will therefore be dismissed.
Complaint 4.4 - Rangehood installed without filters
46 The Complaint Schedule reflects this complaint item is withdrawn and consequently the expert witnesses did not address this item in their joint report.
47 An order will issue granting leave to withdraw and withdrawing this item.
Complaint 4.5 - Bathroom - ceiling water stains
48 The expert joint report reflects that this item is not faulty or unsatisfactory. That conclusion was not challenged by any party. In its 3 October 2016 letter Pyramid identified this complaint as being withdrawn or rejected by the experts. We consider that the appropriate order is that this complaint item be dismissed.
Complaint 4.6 - Living room - downlights pose fire hazard
49 The expert joint report reflects that they understand this item of complaint to have been remedied. The Pyramid 3 October 2016 letter suggests this item of complaint is withdrawn or rejected by the experts.
50 We consider the appropriate order is that leave be granted to withdraw the item and that it is withdrawn.
Lot 5
51 The complaints in relation to Lot 5 are advanced only by the strata company, there being no corresponding complaint by the proprietor of Lot 5.
Complaint 5.1 - Bedroom 1- damp from 'external'
52 The joint expert report reflects that the experts understood Pyramid accepted the complaint. The Complaint Schedule reflects Pyramid's response that it would check water ingress from the external slab and adjacent brickwork nib, which also demonstrates its understanding of the complaint.
53 Pyramid's 3 October 2016 letter reflects its agreement to a remedial work order in respect of this item and an appropriate order will accordingly issue.
Complaint 5.2 - Living room - crack along ceiling joint; Complaint 5.3 - Balcony - water pooling; and Complaint 5.4 - Kitchen - rangehood installed without air filters
54 The Complaint Schedule reflects these complaint items are withdrawn and consequently the expert witnesses did not address any of these items in their joint report.
55 An order will issue granting leave to withdraw and withdrawing these items.
Complaint 5.5 - Bathroom ceiling water stain
56 The expert joint report reflects that this item is not faulty or unsatisfactory. That conclusion was not challenged by any party. In its 3 October 2016 letter Pyramid identified this complaint as being withdrawn or rejected by the experts.
57 We consider that the appropriate order is that this complaint item be dismissed.
Complaint 5.6 - Missing exhaust vent in bathroom
58 This complaint is identical to that under item 4.3 above and will be dismissed for the same reasons.
Lot 6
59 The complaints in relation to Lot 6 are advanced by the strata company and by the proprietor of Lot 6, Mr John Palassis.
60 Mr Palassis gave evidence in support of the complaints and referred to a report he had filed from Houspect WA, a firm of building consultants, based on an inspection carried out by Mr Brian Gray, stated to be a registered builder. The report states it is not intended to be used in a 'Building Commission Hearing' (although the Building Commission has no statutory authority to conduct hearings and does not do so). Mr Gray did not participate in the joint expert conferral contrary to the Tribunal's directions and we understand Mr Palassis chose not to instruct Mr Gray to do so. Because of this nonattendance the other experts were effectively unable to confer and did not confer in relation to complaint items 6.3 to 6.5 inclusively. Mr Gray was not called as a witness.
61 The expert witness processes of the Tribunal cannot function properly in circumstances such as this. The joint conferral is of enormous utility as experts confer with their peers without any form of restraint resulting often in wide ranging agreement, as occurred in this matter. Without leave of the Tribunal experts cannot give evidence later which is inconsistent with what they have agreed in the joint expert report. If parties are able to avoid this process and still rely on reports from experts, not subjected to open discussion by experts in the same field, the process of conferral and provision of joint reports will become ineffective. In the circumstances we rule that Mr Palassis is not entitled to rely on the Houspect report to support his complaints.
Complaint 6.1- Bedroom 1- rising damp from outside wall
62 The expert joint report reflects that this item is not faulty or unsatisfactory. In its 3 October 2016 letter Pyramid identified this complaint as being withdrawn or rejected by the experts. We note the Houspect report in any event observed that condensation was the likely cause of moisture.
63 We consider that the appropriate order is that this complaint item be dismissed.
Complaint 6.2 - Bathroom - water stains near air vent
64 The expert joint report reflects that this item is not faulty or unsatisfactory. In its 3 October 2016 letter Pyramid identified this complaint as being withdrawn or rejected by the experts.
65 We consider that the appropriate order is that this complaint item be dismissed.
Complaint 6.3 - Linen cupboard - door scraping on raised flooring
66 The experts were unable to confer on this issue. Mr Wilson who was engaged by the strata company did not refer to this matter in his report. Mr Machell for Pyramid observed in his report that the door rubbed slightly on the floor which he attributed to distortion of the door relative to the door frame which could be addressed by adjusting the door hinge, which he considered a maintenance issue.
67 Without the benefit of an expert conferral and in the absence of any expert rebuttal of Mr Machell's opinion we find that it has not been proved that the work carried out by Pyramid is faulty, unsatisfactory or has been carried out in a manner which is not proper or proficient.
68 This complaint item will accordingly be dismissed.
Complaint 6.4 - Kitchen - downlight too close to pantry door
69 The experts were unable to confer on this issue.
70 Mr Wilson who was engaged by the strata company did not refer to this matter in his report. Mr Machell also did not address this issue in his report. The reason for this may be that Pyramid's position is that this issue was compromised during conciliation proceedings conducted by the Building Commission.
71 Mr Palassis did not challenge Pyramid's position. In addition, there is no expert evidence to support the complaint.
72 Complaint item 6.4 will accordingly be dismissed.
Complaint 6.5 - Bedroom - one inline fan inaccessible and sits above the robe
73 The experts were unable to confer on this issue. Mr Wilson who was engaged by the strata company did not refer to this matter in his report. Mr Machell for Pyramid observed in his report that the access hatch provides reasonable access to the fan for any maintenance.
74 Without the benefit of an expert conferral and in the absence of any expert rebuttal of Mr Machell's opinion we find that it has not been proved that the work carried out by Pyramid is faulty, unsatisfactory or has been carried out in a manner which is not proper or proficient. We note Mr Gray in any event expressed an opinion consistent with that of Mr Machell.
75 This complaint item will accordingly be dismissed.
Complaint 6.6 - Bathroom - missing E2 exhaust in bathroom
76 This complaint is identical to that under item 4.3 above and will be dismissed for the same reasons.
Complaint 6.7 - Kitchen - rangehood installed without required air filters
77 The Complaint Schedule reflects this complaint item is withdrawn and consequently the expert witnesses did not address this item in their joint report.
78 An order will issue granting leave to withdraw and withdrawing this item.
Lot 7
79 The complaints in relation to Lot 7 are advanced only by the strata company, there being no corresponding complaint by the proprietor of Lot 7.
Complaint 7.1- Ensuite bathroom - wall next to shower screen damp, corroding and plaster coming off wall
80 The experts agreed in the joint report that some areas of missing grout is allowing water ingress but that it is not possible to ascertain the cause of the missing grout.
81 No evidence was produced showing spalling of plaster.
82 As there is no basis for a finding that the work is faulty or unsatisfactory or not carried out in a proper and proficient manner this complaint item will be dismissed.
Complaint 7.2- Ensuite bathroom - cracked tiles
83 No evidence was produced in support of this complaint and it will be dismissed.
Complaint 7.3 - Kitchen - benchtop incorrectly fitted
84 The expert joint report reflects that this item had already been remedied by Pyramid. In its 3 October 2016 letter Pyramid identified this complaint as being withdrawn or rejected by the experts.
85 We consider that the appropriate order is that leave be granted to withdraw the complaint item and that it be withdrawn.
Complaint 7.4 - Bedroom 2 - wall damp and paint bubbling
86 The expert witnesses agreed in the joint expert report that dampness reflects faulty workmanship. Pyramid in its 3 October 2016 letter agrees that a remedial work order should issue and it will be so ordered.
Complaint 7.5 - Bedroom 2 - wall damp and paint bubbling
87 The Complaint Schedule reflects this complaint item is withdrawn and consequently the expert witnesses did not address this item in their joint report.
88 An order will issue granting leave to withdraw and withdrawing this item.
Complaint 7.6 - Outside bedroom 2 - wall damp and paint bubbling
89 No evidence was produced in support of this complaint and it will be dismissed.
Complaint 7.7 - Bathroom - missing E2 exhaust in bathroom
90 This complaint is identical to that under item 4.3 above and will be dismissed for the same reasons.
Complaint 7.8 - Kitchen - rangehood installed without required air filters
91 The Complaint Schedule reflects this complaint item is withdrawn and consequently the expert witnesses did not address this item in their joint report.
92 An order will issue granting leave to withdraw and withdrawing this item.
Lot 8
93 The complaints in relation to Lot 8 are advanced only by the strata company, there being no corresponding complaint by the proprietor of Lot 8.
Complaint 8.1- Dining room - window ingress into dining area above window, mould on cornice, moisture damaging metal work and sill, damage to outside area above window
94 The expert witnesses agreed in the joint expert report that the complaint reflects faulty workmanship. Pyramid in its 3 October 2016 letter agrees that a remedial work order should issue and it will be so ordered.
Complaint 8.2 - Dining room - water ingress evident on southwest floor and lower wall area of dining room, mould growing on wall
95 The expert witnesses agreed in the joint expert report that the complaint reflects faulty workmanship. Pyramid in its 3 October 2016 letter agrees that a remedial work order should issue and it will be so ordered.
Complaint 8.3 - Main front door - door not fitting properly
96 The expert joint report reflects that this item is not faulty or unsatisfactory. In its 3 October 2016 letter Pyramid identified this complaint as being withdrawn or rejected by the experts.
97 We consider that the appropriate order is that this complaint item be dismissed.
Complaint 8.4 - Bathroom - inaccessible exhaust fan
98 The expert witnesses agreed in the joint expert report that the complaint reflects faulty workmanship. Pyramid in its 3 October 2016 letter agrees that a remedial work order should issue and it will be so ordered.
Complaint items 8.5 and 8.6
99 The Complaint Schedule reflects that complaint items 8.5 and 8.6 were withdrawn. Those items were not addressed by the expert witnesses in their joint report. An order will accordingly issue granting leave to withdraw and withdrawing these complaint items.
Lot 9
100 The complaints in relation to Lot 9 are advanced by the strata company and by the proprietors of Lot 9, Mr Mark Francis McGeehan and Mr Warren Philips Gibbs.
Complaint 9.1 - Bedroom 1 - water ingress
101 The complaint raises four issues numbered (i) to (iv). It is convenient to address subitem (iv) first.
102 Complaint 9.1(iv) is that there is water ingress to the right of the window in the west facing bedroom wall and there is mould on the wall.
103 The expert witnesses agreed in the joint expert report that the complaint reflects faulty workmanship. Pyramid in its 3 October 2016 letter agrees that a remedial work order should issue and it will be so ordered.
104 Complaint 9.1(i), (ii) and (iii) refer respectively to water ingress at the top right corner of the west facing bedroom wall, the left of the wall having water ingress and mould and the bottom left of the window, frame and sill having water ingress and mould.
105 The expert joint report reflects that these items are not faulty or unsatisfactory. In its 3 October 2016 letter Pyramid identified this complaint as being withdrawn or rejected by the experts.
106 We consider that the appropriate order is that these complaint items be dismissed.
Complaint 9.2 - Bedroom 2 - water ingress
107 The complaint raises three issues numbered (i) to (iii).
108 Complaint 9.2(i) is that the south facing window has water ingress and mould.
109 Complaint 9.2(ii) is that to the left of the south facing window there is water ingress and mould from the ceiling to the floor in the corner affecting carpet and skirting boards to the right of the window.
110 Complaint 9.2(iii) is that the ceiling corner to the left of the south facing window has mould and water ingress.
111 The expert witnesses agreed in the joint expert report that the complaints reflect faulty workmanship. Pyramid in its 3 October 2016 letter agrees that a remedial work order should issue and it will be so ordered.
Complaint 9.3 - Ensuite - shower recess has about 10 drummy tiles
112 The expert witnesses agreed in the joint expert report that the complaints reflect faulty workmanship requiring the replacement of seven to eight drummy tiles in the shower alcove. Pyramid in its 3 October 2016 letter agrees that a remedial work order should issue and it will be so ordered.
Complaint 9.4- Fans inaccessible to service or replace
113 All of the experts agreed in the joint expert report that placing exhaust fans within 600 millimetres of an opening, which we understand to mean an inspection hatch, is sufficient for access. There is no evidence to support this complaint and it will be dismissed.
Complaint 9.5 - Missing exhaust vent
114 This complaint is identical to that under item 4.3 above and will be dismissed for the same reasons.
Complaint 9.6 - Laundry moisture build up on walls around the hot water system due to poor ventilation
115 The expert joint report reflects that this item is not faulty or unsatisfactory. In its 3 October 2016 letter Pyramid identified this complaint as being withdrawn or rejected by the experts. There is no evidence to support the complaint.
116 We consider that the appropriate order is that this complaint item be dismissed.
Complaint 9.7 - Kitchen rangehood installed without air filters
117 The expert joint report reflects that this item is not faulty or unsatisfactory. That conclusion was not challenged by any party. In its 3 October 2016 letter Pyramid identified this complaint as being withdrawn or that it be dismissed.
118 We consider that the appropriate order is that this complaint item be dismissed.
Lot 11
119 The complaints in relation to Lot 11 are advanced only by the strata company, there being no corresponding complaint by the proprietor of Lot 11.
Complaint 11.1
120 The Complaint Schedule reflects that complaint item 11.1 is withdrawn. The item was not addressed by the expert witnesses in their joint report. An order will accordingly issue granting leave to withdraw and withdrawing this complaint item.
Lot 12
121 The complaints in relation to Lot 12 are advanced only by the strata company, there being no corresponding complaint by the proprietor of Lot 12.
Complaint 12.1 - Bedroom 1 cracks in west and north walls and broken skirting board
122 The joint expert report reflects that Pyramid had carried out remedial work to resolve the complaint. In its 3 October 2016 letter Pyramid identified this complaint as being withdrawn or rejected by the experts.
123 We consider that the appropriate order is that leave be granted to withdraw the complaint item and that it be withdrawn.
Complaint 12.2 - Bathroom 2 - damp on left side of toilet coming from shower in main bathroom
124 The joint expert report reflects that during the joint conferral no evidence of moisture in the wall could be detected. The complaint will accordingly be dismissed.
Complaint 12.3
125 The Complaint Schedule reflects that complaint item 12.3 is withdrawn. The item was not addressed by the expert witnesses in their joint report. An order will accordingly issue granting leave to withdraw and withdrawing this complaint item.
Complaint 12.4 - Ensuite - moisture coming through wall
126 The experts agreed in the joint report that some areas of missing grout is allowing water ingress but that it is not possible to ascertain the cause of the missing grout.
127 As there is no basis for a finding that the work is faulty or unsatisfactory or not carried out in a proper and proficient manner this complaint item will be dismissed.
Complaint 12.5 - Bathroom - missing E2 exhaust in bathroom
128 This complaint is identical to that under item 4.3 above and will be dismissed for the same reasons.
Complaint 12.6 - Bedroom - one inline fan inaccessible
129 No agreement was recorded in the joint report in relation to this item as Mr Wilson, the strata company's expert witness, had not previously inspected and reported on the complaint item. In the absence of any evidence supporting the complaint it will be dismissed.
Complaint 12.7
130 The Complaint Schedule reflects that complaint item 12.7 is withdrawn. The item was not addressed by the expert witnesses in their joint report. An order will accordingly issue granting leave to withdraw and withdrawing this complaint item.
Lot 13
131 The complaints in relation to Lot 13 are advanced only by the strata company, there being no corresponding complaint by the proprietor of Lot 13.
Complaint 13.1 - Bedroom 1 - water ingress at bottom right corner of main feature window with mould and bubbling plaster
132 The expert witnesses agreed in the joint expert report that the complaint reflects faulty workmanship. Pyramid in its 3 October 2016 letter agrees that a remedial work order should issue and it will be so ordered.
Complaint 13.2 - Bedroom 2 - water ingress at bottom of window sill with bubbling plaster and paint
133 The expert witnesses agreed in the joint expert report that the complaint reflects faulty workmanship. Pyramid in its 3 October 2016 letter agrees that a remedial work order should issue and it will be so ordered.
Complaint 13. 3 - Kitchen - lifting and cracking of ceiling paint due to no venting of stove exhaust
134 No evidence was provided in support of this complaint and it will accordingly be dismissed.
Complaints 13.4 and 13.5
135 The Complaint Schedule reflects that complaint items 13.4 and 13.5 were withdrawn. Those items were not addressed by the expert witnesses in their joint report. An order will accordingly issue granting leave to withdraw and withdrawing these complaint items.
Complaint 13.6 - Bathroom - missing E2 exhaust in bathroom
136 This complaint is identical to that under item 4.3 above and will be dismissed for the same reasons.
Complaint 13.6.1 - Bedroom - one inline fan inaccessible
137 All of the experts agreed in the joint expert report that placing exhaust fans within 600 millimetres of an opening, which we understand to mean an inspection hatch, is sufficient for access. There is no evidence to support this complaint and it will be dismissed.
Complaint 13.7 - Bathroom - water mark above bath room door from leaking pipe
138 The joint expert report reflects that Pyramid had carried out remedial work to resolve the complaint. In its 3 October 2016 letter Pyramid identified this complaint as being withdrawn or rejected by the experts.
139 We consider that the appropriate order is that leave be granted to withdraw the complaint item and that it be withdrawn.
Complaint 13.8
140 The Complaint Schedule reflects that complaint item 13.8 is withdrawn. The item was not addressed by the expert witnesses in their joint report. An order will accordingly issue granting leave to withdraw and withdrawing this complaint item.
Lot 14
141 The complaints in relation to Lot 14 are advanced by the strata company and by the proprietor of Lot 14, the Housing Authority.
Complaint 14.1 - Living room - moisture evident to ceiling and wall near living area window
142 The expert witnesses agreed in the joint expert report that the complaint reflects faulty workmanship. Pyramid in its 3 October 2016 letter agrees that a remedial work order should issue and it will be so ordered.
Complaint 14.2 - Bathroom - 10 drummy tiles in shower recess
143 Mr Wilson inspected this work but found no evidence of drummy tiles as he reflected in his report. The joint expert report reflects that the experts agreed this work was not faulty and the complaint will accordingly be dismissed.
Complaint 14.3 - Access issue possibly in breach of fire safety requirement
144 No evidence was produced in support of this complaint and it is accordingly dismissed.
Complaint 14.4 - Living room - moisture is evident to the floor and wall near the living area window (southwest corner)
145 The joint expert report records that Pyramid accepts this complaint. Pyramid in its 3 October 2016 letter agrees that a remedial work order should issue and it will be so ordered.
Complaint 14.5 - Bedroom 1 - previous repairs to water damage near the bedroom window evidence burst air bubbles from plaster mixture applied
146 The joint expert report records that Pyramid accepts this complaint. Pyramid in its 3 October 2016 letter agrees that a remedial work order should issue and it will be so ordered.
Complaint 14.6 - Kitchen - splashback tiles are drummy
147 The joint expert report reflects that Pyramid had carried out remedial work to resolve the complaint. In its 3 October 2016 letter Pyramid identified this complaint as being withdrawn or rejected by the experts.
148 We consider that the appropriate order is that leave be granted to withdraw the complaint item and that it be withdrawn.
Complaint 14.7 - Kitchen rangehood installed without air filters
149 The expert joint report reflects that this item is not faulty or unsatisfactory. That conclusion was not challenged by any party. In its 3 October 2016 letter Pyramid identified this complaint as being withdrawn or that it be dismissed.
150 We consider that the appropriate order is that this complaint item be dismissed.
Lot 16
151 The complaints in relation to Lot 16 are advanced by the strata company and by the proprietor of Lot 16, Mr Krispian Brock Venema.
Complaint 16.1 - Bedroom 2 - window drainage or flashing system inadequate resulting in water permeating brickwork and affecting plaster
152 The expert witnesses agreed in the joint expert report that the complaint reflects faulty workmanship. Pyramid in its 3 October 2016 letter agrees that a remedial work order should issue and it will be so ordered.
Complaint 16.2 - Balcony - water being held in wall corners to balcony
153 The expert joint report reflects that this item is not faulty or unsatisfactory. In its 3 October 2016 letter Pyramid identified this complaint as being withdrawn or rejected by the experts.
154 We consider that the appropriate order is that this complaint item be dismissed.
Complaint 16.3 - Balcony - brick cavity of wall exposed
155 The joint expert report reflects that Pyramid had carried out remedial work to resolve the complaint. In its 3 October 2016 letter Pyramid identified this complaint as being withdrawn or rejected by the experts.
156 We consider that the appropriate order is that leave be granted to withdraw the complaint item and that it be withdrawn.
Complaint 16.4 - Balcony - base of column and awning support bracket rusting
157 The joint expert report records that Pyramid accepts this complaint. Pyramid in its 3 October 2016 letter agrees that a remedial work order should issue and it will be so ordered.
Complaint 16.5 - Kitchen rangehood installed without air filters
158 The expert joint report reflects that this item is not faulty or unsatisfactory. That conclusion was not challenged by any party. In its 3 October 2016 letter Pyramid identified this complaint as being withdrawn or rejected by the experts.
159 We consider that the appropriate order is that this complaint item be dismissed.
Lot 17
160 The complaints in relation to Lot 17 are advanced by the strata company and by the proprietor of Lot 17, Mr Shane Damien Barr.
Complaint 17.1 - Kitchen and lounge room timber floors bowing consistent with damage by water
161 The experts agree in the joint expert report that water ingress at the left of the sliding door is a contributing cause to the bowing of the floor and it is evident from Mr Wilson's report that the door referred to is the balcony sliding door. We find that the regulated building service evidenced by water ingress and its contribution to the bowing of the timber flooring constitutes faulty and unsatisfactory building work. Pyramid in its 3 October 2016 letter agrees that a remedial work order should issue.
162 The strata plan shows that the division between the interior of Lot 17 and the balcony, which must comprise of what is described as the sliding door, is totally within Lot 2. The strata company is not entitled to advance this complaint. It is a complaint which must be advanced by Mr Barr, which he has done in his separate proceedings.
163 Accordingly, this complaint item will be dismissed but a remedial work order will be made in respect of the corresponding complaint item made by Mr Barr.
Complaint 17.2 - Kitchen - no opening windows creating ventilation issue; Complaint 17.3 - Bedroom 2 - no opening windows creating ventilation issue
164 The expert joint report reflects that these items are not faulty or unsatisfactory. That conclusion was not challenged by any party. In its 3 October 2016 letter Pyramid identified these complaint as being withdrawn or rejected by the experts.
165 It is common cause that Pyramid contracted to construct the building to the developer's design. The works as constructed conform to that design and there is no basis for a finding that the construction is faulty, or unsatisfactory or not carried out in a proper and proficient manner.
166 These complaint items will be dismissed.
Complaint 17.4 - Balcony - water pooling around waste outlet
167 The expert joint report reflects that these items are not faulty or unsatisfactory. That conclusion was not challenged by any party. The Complaint Schedule reflects that Pyramid had previously rectified the complaint.
168 Complaint item 17.4 will accordingly be dismissed.
Complaint 17.5 - Bedroom 1 window - window leaks causing damp in walls and aid in mould growth
169 The expert witnesses agreed in the joint expert report that the complaint reflects faulty workmanship. Pyramid in its 3 October 2016 letter agrees that a remedial work order should issue and it will be so ordered.
Complaint 17.6 - Bedroom 1- vertical crack
170 The expert witnesses agreed in the joint expert report that the complaint reflects faulty workmanship. Pyramid in its 3 October 2016 letter agrees that a remedial work order should issue and it will be so ordered.
Complaint 17.7 - Kitchen - pantry restrictors have come off
171 The experts were unable to confer on this issue.
172 Mr Wilson who was engaged by the strata company did not refer to this matter in his report. Pyramid's position is that this issue was compromised during conciliation proceedings conducted by the Building Commission.
173 Mr Barr did not challenge Pyramid's position. In addition, there is no expert evidence to support the complaint.
174 Complaint item 17.7 will accordingly be dismissed.
Complaint 17.8 - Bathroom/laundry - missing E2 exhaust in bathroom
175 This complaint is identical to that under item 4.3 above and will be dismissed for the same reasons.
Complaint 17.9 - Living room - downlight poses potential hazard
176 The experts were unable to confer on this issue.
177 Mr Wilson who was engaged by the strata company did not refer to this matter in his report. Pyramid's position as reflected in the Complaint Schedule is that this complaint item has been rectified.
178 We consider that the appropriate order is that leave be granted to withdraw the complaint item and that it be withdrawn.
Complaint 17.10 - Kitchen - rangehood installed without air filters
179 The expert joint report reflects that this item is not faulty or unsatisfactory. In its 3 October 2016 letter Pyramid identified this complaint as being withdrawn or rejected by the experts.
180 We consider that the appropriate order is that this complaint item be dismissed.
Lot 18
181 The complaints in relation to Lot 18 are advanced by the strata company and by the proprietors of Lot 18, Mr Peter Jensen and Mrs Melissa Jensen.
Complaint 18.1 - Living room - water damage to ceiling
182 During the hearing, the parties and Mr Jensen informed the Tribunal that a settlement had been reached in terms of which Pyramid consented to a remedial work order provided it was not expressed in terms requiring it to remedy the cause and effect of the water damage. That settlement was reached in the context of a settlement also being reached concerning sealing work to the perimeter of the balcony of Lot 21 situated above Lot 18.
183 A consent order will issue giving effect to the settlement of this complaint item.
Complaint 18.2 - Bathroom 1 and ensuite - toilet cisterns inaccessible for repair or replacement
184 For reasons which are not clear the expert joint report records no conferral was possible. Mr Wilson had reported on this item and expressed a view that the installations did not meet the relevant Australian Standard.
185 It is common cause that Pyramid contracted to construct the building to the developer's design. The works as constructed conform to that design and there is no basis for a finding that the construction is faulty, or unsatisfactory or not carried out in a proper and proficient manner.
186 This complaint item will be dismissed.
Complaint 18.3- Bedroom 1 - water damage to wall, skirting and carpet
187 The expert witnesses agreed in the joint expert report that the complaint reflects faulty workmanship. Pyramid in its 3 October 2016 letter agrees that a remedial work order should issue and it will be so ordered.
Complaint 18.4 - Bedroom 1 - water damage to wall, skirting and carpet inside robe
188 The experts were unable to confer as Mr Wilson, the strata company's expert witness, had not previously inspected and reported on the complaint item. The joint report nevertheless records that Mr Wilson did not consider the work to be faulty.
189 In the absence of any evidence supporting the complaint it will be dismissed.
Complaint 18.5 - Kitchen - pantry door under down light constitutes fire hazard
190 The experts were unable to confer on this issue.
191 Mr Wilson who was engaged by the strata company did not refer to this matter in his report. Mr Machell also did not address this issue in his report. The reason for this may be that Pyramid's position is that this issue was compromised during conciliation proceedings conducted by the Building Commission.
192 Mr Palassis did not challenge Pyramid's position. In addition, there is no expert evidence to support the complaint.
193 Complaint item 18.5 will accordingly be dismissed.
Complaint 18.6 - Bathroom - missing E2 exhaust in bathroom
194 This complaint is identical to that under item 4.3 above and will be dismissed for the same reasons.
Complaint 18.7 Kitchen - rangehood installed without air filters
195 The expert joint report reflects that this item is not faulty or unsatisfactory. In its 3 October 2016 letter Pyramid identified this complaint as being withdrawn or rejected by the experts.
196 We consider that the appropriate order is that this complaint item be dismissed.
Lot 19
197 The complaints in relation to Lot 19 are advanced only by the strata company, there being no corresponding complaint by the proprietor of Lot 19.
Complaint 19.1 - Living room - skirting board in southwest corner has come apart apparently due to water ingress
198 The expert witnesses agreed in the joint expert report that the complaint reflects faulty workmanship. Pyramid in its 3 October 2016 letter agrees that a remedial work order should issue and it will be so ordered.
Complaint 19.2 - Balcony - water running down western wall
199 The expert joint report reflects that this item is not faulty or unsatisfactory. That conclusion was not challenged by any party. In its 3 October 2016 letter Pyramid identified this complaint as being withdrawn or rejected by the experts.
200 We consider that the appropriate order is that this complaint item be dismissed.Complaint 19.3 - Eaves southwest corner - powder coating on beam supporting roof is flaking and rusting
201 The expert joint report reflects that this item is not faulty or unsatisfactory. That conclusion was not challenged by any party. In its 3 October 2016 letter Pyramid identified this complaint as being withdrawn or rejected by the experts.
202 We consider that the appropriate order is that this complaint item be dismissed.
Complaint 19.4 - Eaves northwest corner - water ingress causing discolouration of ceiling on western balcony
203 The expert joint report reflects that this item is not faulty or unsatisfactory. That conclusion was not challenged by any party. In its 3 October 2016 letter Pyramid identified this complaint as being withdrawn or rejected by the experts.
204 We consider that the appropriate order is that this complaint item be dismissed.
Complaint 19.5
205 The Complaint Schedule reflects that complaint item 19.5 was withdrawn. That item was not addressed by the expert witnesses in their joint report. An order will accordingly issue granting leave to withdraw and withdrawing this complaint item.
Complaint 19.6 - Main entrance - door cracked and discoloured with unusually large gaps
206 The expert joint report reflects that this item is not faulty or unsatisfactory. That conclusion was not challenged by any party. In its 3 October 2016 letter Pyramid identified this complaint as being withdrawn or rejected by the experts.
207 We consider that the appropriate order is that this complaint item be dismissed.
Complaint 19.7 - Kitchen - crack in kitchen area just below ceiling
208 Mr Wilson's report identifies that a crack in the eastern wall of the kitchen had been repaired by Pyramid and the joint expert report reflects that the complaint had been remedied.
209 In the circumstances an order will issue granting leave to withdraw and withdrawing this complaint.
Complaint 19.8
210 The Complaint Schedule reflects that complaint item 19.8 was withdrawn. This item was not addressed by the expert witnesses in their joint report. An order will accordingly issue granting leave to withdraw and withdrawing this complaint item.
Lot 20
211 The complaints in relation to Lot 20 are advanced only by the strata company, there being no corresponding complaint by the proprietor of Lot 20.
Complaint 20.1 - Bedrooms - water leaking through all bedroom windows causing damage to sills, walls and plaster
212 The expert witnesses agreed in the joint expert report that the complaint reflects faulty workmanship. Pyramid in its 3 October 2016 letter agrees that a remedial work order should issue and it will be so ordered.
Lot 21
213 The complaints in relation to Lot 21 are advanced by the strata company and by the proprietor of Lot 21, Mr Peter McNab.
214 Mr McNab had the conduct of all complaints made in relation to Lot 21 and are the subject of a separate decision in McNab to which reference is made above in the introduction. We incorporate by reference our reasons for decision in that matter.
215 We held in McNab that three complaints, item 21.1 (relating to window locks), item 21.2 (relating to the entry door handle) and item 21.23 (relating to skylight windows) concerned the common property and could only be advanced by the strata company although each claim failed on its merits.
216 As all other complaint items were appropriately advanced by Mr McNab it follows that in these proceedings all of complaint items 21.1 to 21.24 fall to be dismissed and it will be so ordered.
Lot 22
217 The complaints in relation to Lot 22 are advanced by the strata company and by the proprietor of Lot 22, JL Properties Pty Ltd.
Complaint 22.1 - Ceiling tiles - water leak stains on several ceiling tiles
218 The expert witnesses agreed in the joint expert report that the complaint reflects faulty workmanship. Pyramid in its 3 October 2016 letter agrees that a remedial work order should issue and it will be so ordered.
Complaint 22.2 - Balcony doors - doors do not have seals
219 Mr Wilson's report reflected that this complaint item had already been rectified by the time of his inspection. The joint expert report recorded the same.
220 An order will accordingly issue granting leave to withdraw and withdrawing this complaint item.
Lot 24
221 The complaints in relation to Lot 24 are advanced by the strata company and by the proprietor of Lot 24, S & L Nominees Pty Ltd.
Complaint 24 - Leaks in boardroom ceiling and six leaks through slab
222 The expert witnesses agreed in the joint expert report that the complaint reflects faulty workmanship. Pyramid in its 3 October 2016 letter agrees that a remedial work order should issue and it will be so ordered.
Common property complaints not related to any lot - items 25.1 to 25.8 and 26.1 to 26.6
223 By email dated 20 July 2016, the strata company gave notice that it wished to withdraw complaint items 25.1 to 25.8.
224 Mr Wilson did not support complaint items 26.1 to 26.4 in his report. No evidence was provided to support complaint items 26.5 and 26.6.
225 The joint expert report records that no expert conferral took place in relation to items 26.1 to 26.6 but that the strata company's expert, Mr Wilson, recommended that no remedial orders were required.
226 In the premises orders will issue granting leave to withdraw and withdrawing items 25.1 to 25.5, and dismissing complaint items 26.1 to 26.6.
Should legal costs, expert witness fees and costs of investigation and compilation of the complaint schedule be allowed?
227 The claim is for payment of $43,841.81 in respect of legal costs ($4,950), expert witness fees ($27,560) and costs of investigation and compilation of the Complaint Schedule ($11,331.31).
228 The principles applying to a consideration of a claim for costs for matters dealt with under the jurisdiction of the Tribunal under the BSCRA Act are set out in Hoskins and Daniel Vinci t/as D'Vinci Contracting [2011] WASAT 188. There is no presumption that costs will follow the event, nor is there a predisposition or bias in favour of the usual regime in the Tribunal that costs will not be ordered so that each party bears its own costs, but the discretion to award costs will be exercised in a manner which will promote the objects and procedures of the Tribunal. Costs may be ordered when the justice of the case shows that such an order is warranted having regard to the above principles.
229 The objects and procedures of the Tribunal require that the costs to the parties are minimised and that matters are conducted efficiently and economically. When costs are ordered the Tribunal will carefully scrutinise the costs claimed to ensure the matter has been efficiently conducted and that rates charged are at a rate which minimises costs: see Rainbow Pty Ltd and Hawkins & Anor [2007] WASAT 216 (S). There is no scale of costs which applies to the Tribunal and the nature of the case will determine whether cost scales applying to the Supreme, District or Magistrates Court may provide a useful guide. The applicable Legal Practitioners (State Administrative Tribunal) Determination 2012 (WA)(Determination), published under and in terms of the Legal Profession Act 2008 (WA), is a guide to the maximum rates which may be awarded as between party and party in the most complex cases before the Tribunal: see Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S).
230 The general rule is that a litigant in person who is successful in the litigation is entitled to recover disbursements but is not entitled to claim costs for time spent in the conduct of litigation: Cachia v Hanes(1994) 179 CLR 403 at 412 413. The Court identified the statutory basis of costs and the purposes for which they are awarded, as follows:
It has not been doubted since 1278, when the Statute of Gloucester … introduced the notion of costs to the common law, that costs are awarded by way of indemnity (or, more accurately, partial indemnity) for professional legal costs actually incurred in the conduct of litigation. They were never intended to be comprehensive compensation for any loss suffered by a litigant …
231 This principle has however been ameliorated by s 87(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) which expressly empowers the Tribunal to make a costs order including an amount to compensate for any expenses resulting from the proceeding or the matter because of which the proceeding was brought. The ability to provide a more extensive indemnity is understandable in a Tribunal with procedures which facilitate selfrepresentation.
232 These principles must be applied to the costs claimed by the strata company.
233 The parties proceeded to hearing on the issues as defined in the Complaint Schedule which formed the basis upon which the expert witnesses conferred. Taking a broad view, Pyramid basically denied all liability with only a few exceptions. As a result of the expert conferral and joint expert report Pyramid substantially changed its position which was summarised in Pyramid's 3 October 2016 letter. This letter was produced on the day prior to commencement of the hearing. In terms thereof Pyramid consented to remedial work orders in respect of many issues of significance. On the other hand, the strata company has been mainly unsuccessful or withdrew many of the remaining issues. Overall we consider the strata company is the more successful party.
234 Counsel for Pyramid submits that the work undertaken in preparing and conducting the proceedings is the work that the council of a strata company necessarily undertakes in discharging its statutory responsibilities and that any award of costs is not warranted.
235 On balance we have concluded that the justice of the case requires that a costs award in some form should be made. Without expert assistance the strata company could never have advanced its case. It was not until a compulsory conferral of experts was required under the Tribunal's procedures that Pyramid accepted responsibility in respect of a number of significant issues.
236 Given the number and significance of many of the complaints we consider it was reasonable and necessary for the strata company to obtain legal advice in relation to the conduct of the proceedings, rather than incur the undoubtedly higher cost of legal representation. We do not accept that it is the normal function of a strata company council to manage proceedings of this nature without legal and other assistance.
237 We consider a fair result is that Pyramid bear one half of whatever amount of costs we assess to be reasonably and necessarily incurred on application of the principles expressed above, save where discrete costs can be identified as applying to complaints in relation to which the strata company has been wholly unsuccessful. In this event the discrete costs will not be allowed.
238 We turn to consider the various heads of claim.
Expert witness fees - $27,560.50
1) Invoices from Integrity Engineering have been provided totalling $18,760.50 in respect of Mr Wilson's fees for his report, preparation for and attendance at the hearing. Time has been charged at a rate of $180 per hour plus GST which we find is reasonable. The total time charged is 94.75 hours which having regard to the range of issues and number of complaints we also accept is reasonable. These cost had necessarily to be incurred. We accordingly allow $9,380 in respect of the fees charged by Integrity Engineering, being one half of the total reasonable and necessary cost.
2) Invoices have been provided by Alphazeta Group Pty Ltd totalling $8,800 in respect of Mr Athukorala's fees for his report, preparation for and attendance at the hearing. Time has been charged at a rate of $250 per hour plus GST which we find is reasonable. However, the strata company was unsuccessful in relation to all issues on which Mr Athukorala gave evidence. We do not consider that any of these costs should therefore be allowed.
239 In respect of expert witness fees the total sum we allow is therefore $9,380.
Legal costs - $4,950
240 An invoice from Atkinson Legal for the sum of $4,950 has been provided together with a timesheet recording of the actual attendances and charges for each attendance. A representative of the legal firm never appeared in the proceedings. The attendances relate to advice given in relation to the expert reports commissioned by the strata company and other unspecified matters. In our view s 87 of the SAT Act permits such attendances to be included in an order for costs although not professional legal costs actually incurred in the conduct of litigation.
241 The timesheet shows that the total time charged was 10.2 hours which equates to an hourly rate of $441.17 excluding GST. We accept the time taken for the services described in the timesheets is reasonable. The legal practitioner shown by the timesheet to have provided these services appeared for Mr McNab at one stage in the proceedings. In McNab we allowed legal costs at a rate of $266.66 inclusive of GST and for the reasons given in that decision, which we incorporate by reference, we allow legal costs in the sum of $1,360, which subject to minor rounding is based on 10.2 hours at a rate of $266.66 inclusive of GST then divided in half.
Investigation and compilation of complaint file/schedules - $11,331.31
242 In assessing these costs we do so on the basis that we are satisfied that the tasks undertaken are of a factual nature involving assessment of whether or not building work was faulty or unsatisfactory customarily undertaken by building consultants rather than legal practitioners.
1) Invoices from Greg Keet Maintenance have been provided totalling $9,319.77. They demonstrate charges at a rate of $75 per hour plus GST ($82.50 inclusive of GST). This equates to approximately 113 hours of services provided, which we can assume from the head of claim is for investigating and compiling the Complaint Schedule (none of the other invoices referred to below exclude the assumption). This is a very lengthy time but when one has regard to the number of complaints it is not obviously unreasonable. Nevertheless, in the absence of any reports in evidence or a more descriptive outline of the services rendered we must err in favour of Pyramid in our assessment. We consider it would be appropriate to accept three quarters of the charges as being reasonable and necessarily incurred, that is $8,500, subject to minor rounding. We therefore allow one half of that amount being $4,250.
2) An invoice provided from Minute Press totals $413.50 for preparing a bundle of documents comprising 985 pages. A very substantial bundle of documents was provided by the strata company in the proceedings. We consider this charge to be reasonable and necessarily incurred and we allow one half thereof in the sum of $206.75.
3) Invoices from Strata Asset Services total $1,673.05 and relate to the costs of providing stationery and printing. The description contained within the invoices shows that one of them in an amount of $89.65 is entirely related to the Alphazeta report (Mr Athukorala). As the strata company has been unsuccessful in respect of all matters addressed in that report the costs in relation to it will not be allowed. The balance of the costs are in our view reasonable and necessarily incurred and we allow one half thereof in the sum of $790 subject to minor rounding.
243 Accordingly, the total amount we allow in respect of the cost of investigation and compilation of the Complaint Schedule is:
| 4,250.00 |
| 206.75 |
| 790.00 |
| $5,246.75 |
244 The total costs we allow and fix to be paid by Pyramid is:
| 9,380.00 |
| 1,360.00 |
Schedule Costs | 5,246.75 |
| $15,986.75 |
Orders
For the reasons given above the Tribunal will cause an order to issue in the following terms:
1. Leave is granted to withdraw the following complaint items and the complaint items are withdrawn, namely, items 1.3 to 1.8 inclusive, 1.10, 2.4, 3.3, 4.2, 4.4, 4.6, 5.2 to 5.4 inclusive,7.3, 7.5, 7.8, 8.5, 8.6, 11.1, 12.1, 12.3, 12.7, 13.4, 13.5, 13.7, 13.8, 14.6, 16.3, 17.9, 19.5, 19.7, 19.8, 22.2, and 25.1 to 25.8 inclusive.
2. The following complaint items are dismissed, namely, items 1.2, 2.2, 2.3, 2.5, 3.2, 4.3, 4.5, 5.5, 5.6, 6.1 to 6.5 inclusive,7.1, 7.2, 7.6, 7.7,8.3, 9.1(i) to (iii) inclusive, 9.4, to 9.7 inclusive, 12.2, 12.4 to 12.6 inclusive, 13.3,13.6, 13.6.1, 14.2, 14.3, 14.7, 16.2, 16.5, 17.1 to 17.4 inclusive, 17.7, 17.8, 17.10, 18.2, 18.4 to 18.7 inclusive, 19.2 to 19.4 inclusive, 19.6, 21.1 to 21.24 inclusive, and 26.1 to 26.6 inclusive.
3. By consent and in settlement of complaint item 18.1 the respondent must on or before 8 February 2017 and at Lot 18 remedy the water damage to the living room ceiling and do all things necessary to achieve an aesthetically acceptable result.
4. Pursuant to s 36(1)(a) of the Building Services (Complaint Resolution and Administration) Act 2004 (WA) the respondent must on or before 7 March 2017 and at the strata scheme known as Urbano Uno at 128 Brown Street, East Perth, carry out the following remedial work.
(a) Lot 1
(i) Complaint 1.1 - Bedroom 1 - moisture damage below window
Action required
Take all necessary action in a proper and proficient manner to remove the cause and effect of water damage and to achieve an aesthetically acceptable result.
(ii) Complaint 1.9 - Dining room - ceiling to wall crack
Action required
Take all necessary action in a proper and proficient manner to remove the cause and effect of the ceiling to wall crack and to achieve an aesthetically acceptable result.
(i) Complaint 2.1 - Bedroom1 - water ingress window frame and damage to wall
Action required
Take all necessary action in a proper and proficient manner to remove the cause and effect of water ingress through the window frame and damage to the wall and to achieve an aesthetically acceptable result.
(i) Complaint 3.1 - Bedroom 2 - roof leak in corner of ceiling closest to balcony
Action required
Take all necessary action to in a proper and proficient manner remove the cause and effect of the roof leak in corner of ceiling closest to balcony and to achieve an aesthetically acceptable result.
(i) Complaint 4.1 - Floor boards rising and bowing
Action required
Take all necessary action in a proper and proficient manner to remove the cause and effect of the floor boards rising and bowing and to achieve an aesthetically acceptable result.
(i) Complaint 5.1 - Bedroom 1 - water ingress from the external slab and adjacent brickwork nib
Action required
Take all necessary action in a proper and proficient manner to remove the cause and effect of water ingress from the external slab and adjacent brickwork nib and to achieve an aesthetically acceptable result.
(i) Complaint 7.4 - Bedroom 2 - wall damp and paint bubbling
Action required
Take all necessary action in a proper and proficient manner to remove the cause and effect of damp in the wall and paint bubbling and to achieve an aesthetically acceptable result.
- (g) Lot 8
(i) Complaint 8.1 - Dining room - window ingress into dining area above window, mould on cornice, moisture damaging metal work and sill, damage to outside area above window
Action required
Take all necessary action in a proper and proficient manner to remove the cause and effect of water ingress, mould and damage to metal work, sill and outside area and to achieve an aesthetically acceptable result.
(ii) Complaint 8.2 - Dining room - water ingress evident on southwest floor and lower wall area of dining room, mould growing on wall
Action required
Take all necessary action in a proper and proficient manner to remove the cause and effect of water ingress, mould and damage to metal work, sill and outside area and to achieve an aesthetically acceptable result.
(iii) Complaint 8.4 - Bathroom - inaccessible exhaust fan
Action required
Take all necessary action in a proper and proficient manner to ensure access is provided to the exhaust fan and to achieve an aesthetically acceptable result.
(i) Complaint 9.1(iv) - Water ingress to the right of the window in the west facing bedroom wall and mould on the wall
Action required
Take all necessary action in a proper and proficient manner to remove the cause and effect of water ingress and mould and to achieve an aesthetically acceptable result.
(ii) Complaint 9.2(i) - South facing window has water ingress and mould
Action required
Take all necessary action in a proper and proficient manner to remove the cause and effect of water ingress and mould and to achieve an aesthetically acceptable result.
(iii) Complaint 9.2(ii) - Water ingress to the left of the south facing window and mould from ceiling to the floor in the corner affecting carpet and skirting boards to the right of the window
Action required
Take all necessary action in a proper and proficient manner to remove the cause and effect of water ingress and mould, damage to skirting boards and carpet (by cleaning, repair or replacement) and to achieve an aesthetically acceptable result.
(iv) Complaint 9.2(iii) - The ceiling corner to the left of the south facing window has mould and water ingress
Action required
Take all necessary action in a proper and proficient manner to remove the cause and effect of water ingress and mould and to achieve an aesthetically acceptable result.
(v) Complaint 9.3 - Ensuite - shower recess has about 10 drummy tiles
Action required
Take all necessary action in a proper and proficient manner to remove and replace tiles as necessary and to achieve an aesthetically acceptable result.
(i) Complaint 13.1 - Bedroom 1 - water ingress at bottom right corner of main feature window with mould and bubbling plaster
Action required
Take all necessary action in a proper and proficient manner to remove the cause and effect of water ingress, mould and bubbling plaster and to achieve an aesthetically acceptable result.
(ii) Complaint 13.2 - Bedroom 2 - water ingress at bottom of window sill with bubbling plaster and paint
Action required
Take all necessary action in a proper and proficient manner to remove the cause and effect of water ingress, mould, bubbling plaster and paint and to achieve an aesthetically acceptable result.
- (j) Lot 14
(i) Complaint 14.1 - Living room - moisture evident to ceiling and wall near living area window
Action required
Take all necessary action in a proper and proficient manner to remove the cause and effect of moisture evident to ceiling and wall near living area window and to achieve an aesthetically acceptable result.
(ii) Complaint 14.4 - Living room - moisture is evident to the floor and wall near the living area window (southwest corner)
Action required
Take all necessary action in a proper and proficient manner to remove the cause and effect of moisture evident to the floor and wall near living area window (southwest corner) and to achieve an aesthetically acceptable result.
(iii) Complaint 14.5 - Bedroom 1 - previous repairs to water damage near the bedroom window evidence burst air bubbles from plaster mixture applied
Action required
Take all necessary action in a proper and proficient manner to remediate previous repairs and remove the cause and effect of bubbles in plaster and to achieve an aesthetically acceptable result.
(i) Complaint 16.1 - Bedroom 2 - window drainage or flashing system inadequate resulting in water permeating brickwork and affecting plaster
Action required
Take all necessary action in a proper and proficient manner to remove the cause and effect of water permeating brickwork and affecting plaster and to achieve an aesthetically acceptable result.
(ii) Complaint 16.4 - Balcony - base of column and awning support bracket rusting
Action required
Take all necessary action in a proper and proficient manner to remove the cause and effect of rusting of support bracket and to achieve an aesthetically acceptable result.
(i) Complaint 17.5 - Bedroom 1 window - window leaks causing damp in walls and aid in mould growth
Action required
Take all necessary action in a proper and proficient manner to remove the cause and effect of window leak damp in walls and mould and to achieve an aesthetically acceptable result.
(ii) Complaint 17.6 - Bedroom 1 - vertical crack
Action required
Take all necessary action in a proper and proficient manner to remove the cause and effect of the vertical crack and to achieve an aesthetically acceptable result.
(i) Complaint 18.3 - Bedroom 1 - water damage to wall, skirting and carpet
Action required
Take all necessary action in a proper and proficient manner to remove the cause and effect of water damage to wall, skiting and carpet (by cleaning, repair or replacement) so and to achieve an aesthetically acceptable result.
(i) Complaint 19.1 - Living room skirting board in southwest corner has come apart apparently due to water ingress
Action required
Take all necessary action in a proper and proficient manner to remove the cause and effect of water ingress including repair or replacement of the skirting board and to achieve an aesthetically acceptable result.
(i) Complaint 20.1 - Bedrooms - water leaking through all bedroom windows causing damage to sills, walls and plaster
Action required
Take all necessary action in a proper and proficient manner to remove the cause and effect of water leaking through windows and damage to sills, walls and plaster and to achieve an aesthetically acceptable result.
(i) Complaint 22.1 - Ceiling tiles - water leak stains on several ceiling tiles
Action required
Take all necessary action in a proper and proficient manner to remove the cause and effect of staining to ceiling tiles and to achieve an aesthetically acceptable result.
(i) Complaint 24 - Leaks in boardroom ceiling and six leaks through slab
Action required
Take all necessary action in a proper and proficient manner to remove the cause and effect of leaks in ceiling and through slab and to achieve an aesthetically acceptable result.
6. The respondent must on or before 31 January 2017 pay to the applicant costs fixed in the sum of $15,986.75 being:
(a) $9,380 in respect of expert witness fees;
(b) $1,360 in respect of legal fees; and
(c) $5,246.75 in respect of costs of investigation and compilation of the Complaint Schedule.
7. The parties have liberty to apply in the event that any practical difficulty arises in complying with orders 4 or 5 above.
8. The applicant must within seven days of receipt of these reasons for decision give a copy thereof to the individual owners of lots within the strata scheme who applied separately to the Tribunal for orders in respect of the same items of complaint the subject of these proceedings, namely, the owners of lots 2, 6, 9, 16, 17, 18, 21, 22 and 24.
I certify that this and the preceding [244] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR C RAYMOND, SENIOR SESSIONAL MEMBER
Key Legal Topics
Areas of Law
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Administrative Law
Legal Concepts
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Complaint Resolution
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Expert Evidence
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Judicial Review
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Costs
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Statutory Interpretation
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