The Owners - Strata Plan No. 550 v Artuphel

[2025] NSWCATCD 82

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

The Owners - Strata Plan No. 550 v Artuphel [2025] NSWCATCD 82

Hearing dates:

31 March 2025

Date of orders:

8 July 2025

Decision date:

08 July 2025

Jurisdiction:

Consumer and Commercial Division

Before:

Dr D Goldman, Senior Member

Decision:

(1)   Order that the respondent carry out, in accordance with the specification provided by Gary Finn dated 13 February 2025, the removal of the bathroom installed at Lot 1 Strata Plan No. 550 including all alterations and additions undertaken by or on the respondent’s behalf (except for the limited works paid for by the Owners Corporation) and reinstate the bathroom as near as practicable to its previous condition (Reinstatement Works).

(2)   Order that the respondent ensure that the Reinstatement Works are carried out in a proper and competent manner, by appropriately qualified, licensed and insured contractors, in a manner that does not disturb the peaceful enjoyment of the owners or occupiers of the other lots in Strata Plan No. 550 and in accordance with all applicable laws and by-laws, and are completed within 12 months of the date of this order.

(3) Order that, in the event that the respondent fails to comply with orders 1 and 2 above, The Owners – Strata Plan No 550 be permitted to enter Lot 1 in Strata Plan No. 550 and carry out the Reinstatement Works in accordance with section 120 of the Strata Schemes Management Act 2015.

(4)   Order that the application be otherwise dismissed.

Catchwords:

LAND LAW — Strata title — Common property — Maintenance and repair of common property — Order to reinstate where no authorisation for lot owner works given

Legislation Cited:

Civil and Administrative Tribunal Rules 2014 (NSW), r 23

Strata Schemes Management Act 2015 (NSW) ss 109, 110, 111, 126, 132, s 149(1)(a), 226(1)(a),

232, 241

Cases Cited:

Mitchell v Cullingral Pty Ltd [2012] NSWCA 389

Owners of Strata Plan No 5319 v Price [2019] NSWCATD 3

The Owners - Strata Plan No. 31293 v Lewinsohn; Lewinsohn v The Owners - Strata Plan No. 31293 [2021] NSWCATCD 121

The Owners – Strata Plan No 68255 v Downs; Downs v The Owners – Strata Plan No 68255 [2021] NSWCATCD 34

Category:

Principal judgment

Parties:

The Owners - Strata Plan No. 550 (applicant)
John Artuphel (respondent)

Representation:

Mr G Adamson (strata managing agent)
Ms R Mottram (co-owner with respondent)

File Number(s):

2024/00387354

Publication restriction:

Nil

REASONS FOR DECISION

1. The parties to this application are The Owners – Strata Plan No 550 (Owners Corporation) as applicant, and John Artuphel, the respondent lot owner in the strata scheme. Strata Plan No 550 is an apartment block in Cronulla, New South Wales. There was little evidence of its characteristics before the Tribunal other than that it was possibly 50 years old. The Respondent owns or part-owns lot 1, on the ground floor.

2. At the hearing, the Owners Corporation was represented by its strata managing agent, Mr Adamson. The respondent was represented by Ms Mottram. Ms Mottram had appeared on the previous occasion when the hearing had been adjourned, unheard, to enable further evidence to be submitted. It seems uncontroversial that she is a part-owner of lot 1 and the partner of the respondent. An application was made on the morning of the present hearing by the respondent to be represented remotely by Ms Mottram, noting that she is an equal owner of the lot with the respondent and they were both located in Broken Hill at the time. I granted leave for Ms Mottram to appear for the respondent, in the interests of hearing this matter without further delays and there being no prejudice to the applicant.

The application

3. The application as filed on 17 October 2024 alleged unauthorised work was carried out by the respondent to the bathroom and connected common property from December 2022 to April 2023, and that the work was defective.

4. In the bundle of documents filed for the Owners Corporation, revised orders are sought. They read:

“In view of the defective work being the tiles and waterproofing membrane (if any) in the bathroom of the subject lot which does not comply with the Australian construction code an order is sought to remove the defective work and reinstate to its original condition and a certificate of compliance be provided to the Owners Corporation in the name of the Owners Corporation which shall include a certificate of waterproofing designating that the work complies with the Australian construction code.”

5. For reasons to be explained, to succeed, the Owners Corporation needs to show on the balance of probabilities that the bathroom works undertaken by the respondent were not approved for the purpose of satisfying the requirements of the Strata Schemes Management Act 2015 (NSW) (SSMA).

6. In his submission filed with his bundle of documents, the respondent lot owner, Mr Artuphel, at the conclusion of his submission, makes a number of requests:

1. removal of a caveat;

2. a general meeting to accept and register a bathroom by-law;

3. payment by the Owners Corporation to cover the waterproofing costs;

4. removal of the strata managing agent and the current strata committee members in favour of a court appointed compulsory strata manager;

5. All associated costs to be borne by the strata committee members.

7. No cross-application was filed as a vehicle for seeking these orders and these requests were not the subject of the directions to exchange evidence. Insufficient evidence was presented by the respondent to be able to entertain an application for those orders, if late leave had been sought from the Tribunal to bring that application (which it was not). The Owners Corporation had not been provided with the opportunity to file evidence to meet that case, in any event. Consequently, the orders sought by the respondent cannot be decided in the present application.

Evidence relied on

8. The registered strata plan, by-laws, and a common property memorandum (if any), were not in evidence.

9. Each party provided a folder of documents, admitted into evidence subject to weight and relevance.

10. The Owners Corporation bundle contained:

1. a submission, not attributed to an author;

2. a sequence of events, not attributed to an author;

3. a Tribunal order from previous proceedings;

4. a report from Gary Finn with a revised date of 11 September 2024, on Sydney Access Consultants letterhead;

5. a further report from Mr Finn dated 13 February 2025;

6. various owners corporation documents after 1 October 2024 relating to these proceedings, and orders sought.

11. The respondent’s bundle contained:

1. joint statement and chronology from the respondent and Ms Mottram;

2. plumber quotes;

3. photographs, being one photograph prior to the bathroom installation, and three photographs in April 2023 showing the installation of a toilet waste through the bathroom wall; and

4. waterproofing certificate and tax invoice.

12. The Owners Corporation sent to the Tribunal another bundle of documents without leave to submit them, received 10 April 2025, after the case had closed. That evidence was not considered at the hearing. The respondent did not have the opportunity to respond to that evidence. As a matter of procedural fairness to the respondent, that bundle has been disregarded.

13. In reaching a decision in relation to this application, the Tribunal has considered the entirety of the documents admitted as evidence and the submissions. These reasons focus on the material central to the issues but, to the extent that any evidence or a submission is not referred to, it should not be assumed that evidence or submission has been ignored. This approach is consistent with what was said by Allsop P in Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [2], requiring a judicial officer, when “dealing with large bodies of evidence … to economise in expressions and approach in order to be coherent in resolving the overall controversy”.

Facts

14. On 22 December 2022, tenants moved out of the respondent’s unit after seven years. The respondent intended to move in but says he noticed water pooling in the garden bed which he says indicated that the original clay waste pipes were leaking. The Owners Corporation maintains that this was discovered whilst the respondent was undertaking renovations. There is no contemporary or objective evidence for this or against this, beyond submissions from both parties. This is the case for a number of the facts each party seeks to establish, leaving the Tribunal to do the best it can to decide the real issues in dispute in a way that is fair to the parties.

15. In early January 2023, the respondent says he contacted the Owners Corporation’s recommended plumber, “AJR Plumbing”. This was after the holiday period. According to the respondent, this plumber informed him the pipes servicing the bathroom were cracked and needed to be replaced. The plumber also explained that:

1. access to the toilet pipe was restricted by the foundation wall;

2. the toilet would need to be turned 90 degrees; and

3. a new pipe would need to be run through the outside wall.

16. Apparently around the same time, the respondent says that the strata committee secretary had been informed and “initially agreed [the work] should be undertaken”. The respondent says in addition “we emailed a request for a work order”, emailing the secretary and the chairman of the strata committee. Those emails are not in evidence.

17. The urgency of the work is difficult to appreciate. The respondent’s own submission at paragraph 1 of his chronology suggests the issue would not have been noticed by the tenants or agent because the problem “was outside and below the unit”.

18. There is no objective contemporary or documentary evidence that permission had been requested.

19. On 4 January 2023, a committee member residing in unit 2 noticed excessive demolition noise and vibration coming from unit 1 throughout the day, on the respondent’s submission.

20. On 5 January 2023, the Owners Corporation submits that a skip bin was placed on common property and bathroom trade waste including a bathtub, vanity, bricks, concrete and tiles were disposed of into the skip bin. Loud demolition noise persisted for an additional two weeks while residents were working from home. According to the Owners Corporation, the strata managing agent and strata committee had not been notified of the renovations. As at 11 January 2023, no contact had been made.

21. According to the respondent’s submission, the strata managing agent on 11 January 2023 emailed the respondent and called him regarding the complaint about unapproved renovations, requesting the applicant complete a renovations information request form and supply a renovation application. That email has not been sighted despite it being referred to in submission as being in appendix 3. Appendix 3 is not identifiable by reference to any of the materials filed.

22. On 13 January 2023, according to the Owners Corporation, the respondent emailed the strata managing agent and notified the agent for the first time that there was a cracked old clay pipe under the bathroom and that the applicant had organised a plumber to investigate it. A report from AJR Plumbing was apparently provided. It is referred to as being contained in Appendix 4 although as with Appendix 3 it does not appear to be in the bundle filed. According to the Owners Corporation, that day the strata managing agent shared the information received from the respondent with the strata committee and again requested a scope of work and photos of the bathroom renovation by email. Primary evidence was lacking but the proposition was not denied by the respondent. According to the Owners Corporation, the respondent asserted that “major renovations were not taking place only minor cosmetic changes” [sic].

23. On 17 January 2023, according to the Owners Corporation, the respondent’s wife Ms Mottram contacted the strata committee informing Lisa, the strata secretary, of the broken pipe, requesting a work order. Between 18 to 23 January 23, according to the Owners Corporation, there were further communications about a work order as requested by the respondent. The strata managing agent had apparently replied asking for more details of the works which were being undertaken and requesting more quotes, which were provided. Again, these communications aside from the quotes do not appear in evidence. On 23 January 2023, access to the respondent’s unit was apparently denied, according to the Owners Corporation.

24. According to the respondent, on 18 January 2023, the plumber commenced work. The waste pipes for the shower and bath were replaced. Internal concrete collars of the pipes were removed, which damaged the surrounding tiles within the shower base and required the bath to be removed for access.

25. Several events occurred on 24 January 2023, according to the Owners Corporation.

1. The respondent further demanded that a plumber attend to do unspecified work. The Owners Corporation replied saying that they were seeking another two additional quotes not sourced by the respondent. The respondent was requested to send photos of what had been done to the bathroom.

2. The Owners Corporation asserts that a lot owner from unit 6 alerted the strata managing agent to her concern that strata committee members were being contacted directly by the respondent. Mr McCormack, according to the Owners Corporation submission, walked around the unit block and was unable to detect any evidence of sewer leak or sewer smell as had been reported by the respondent.

3. The respondent turned off the water supply without notification. Photos sent to the strata committee that day by the respondent according to the Owners Corporation did not reveal any significant damage to pipes in photos. Another plumber engaged by the respondent, according to the Owners Corporation, attended the site that day and refused access to a strata committee member or members to view the work that was undertaken.

The evidence for this consists only of submission. It is not clear who from the Owners Corporation is the source of this information. It was not denied by the respondent.

26. Ms Mottram for the respondent and the respondent’s submission admitted several of these facts and elaborated:

1. the respondent rented and installed a skip bin;

2. the respondent arranged for preparation of the site by removing the shower curtain and vanity; and

3. lot owners who were non-residents were not informed in advance of the skip bin and the noise and inconvenience although the residents were informed.

27. The Owner’s Corporation asserts that the strata managing agent reopened after the holiday break, did not issue a work order, and required instead three quotes to be obtained by the respondent with a by-law to be put in place for renovations.

28. The respondent takes issue with the characterization of the works as a renovation, instead characterising the work as “urgent/ongoing plumbing repair”. Nonetheless the respondent ceased work and obtained further quotes.

29. The next day (although it is not clear what day this was), the secretary and chairman of the strata committee emailed the respondent declining to issue a work order and the plumbers were instructed to cease work, according to the respondent.

30. On 1 February 2023, according to the Owners Corporation, the respondent forwarded the strata committee an email detailing the work that needed to be done to fix the sewerage pipes, together with a general plan for work required after the floor tiles were damaged by remediation works. As with much of the above attempts to establish facts, as already remarked, no objective primary documents were in evidence for the Tribunal to consider. Sometime around this time, the Owners Corporation submits that the respondent finally admitted he did not follow the required protocol, by informing the strata committee of the bathroom renovation. The respondent allegedly admitted to removing the floor tiles, the toilet and the bathtub, breaking the waterproofing. The respondent allegedly admitted to placing a skip bin on the common property too. Ms Mottram confirmed at the hearing that a skip bin had been delivered and the floor tiles, toilet and bathtub were removed. She also asserted that the bath and the vanity were removed to enable the installation of a new toilet to accommodate re-routed plumbing.

31. The respondent asserts that the original bathroom, having been built in the 1960s, had “no real waterproofing to speak of and what was considered as protection had obviously been compromised”.

32. On 7 February 2023, an annual general meeting of the Owners Corporation was held. The respondent says he spoke to the issue of his repairs and provided details of the work along with three plumbing quotes. Although it is not clear from the evidence who responded, someone from the strata committee apparently said that renovations had taken place without consent and that they would not be approved. They requested a by-law to cover any work to be done. The respondent agreed to provide a by-law and to cover the costs however the Owners Corporation still declined to issue a work order.

33. Apparently at the same meeting, according to the Owners Corporation, the respondent then threatened to apply to the Tribunal on the basis that the strata committee had refused to fix common property pipes.

34. No minutes of the meeting are in evidence.

35. Some two weeks later, the strata committee seems to have engaged a different plumbing company, Instaplumb, to finish the waste pipe repairs. That plumber confirmed, according to the respondent, that the toilet needed to be rotated, acknowledging that some work had already been undertaken on the bath and shower waste pipes. Consistent with the rotation of the toilet, the toilet waste from the floor was moved and diverted to an outlet through the external wall. This was because, according to the respondent, the foundation wall blocked access. Above ground plumbing was chosen to avoid excavation whilst allowing easier future access. That plumber also apparently informed the strata committee that new waterproofing was required as his work had broken through the floor, wall tiles and bricks. This is confirmed by a report from Instaplumb addressed to the Owners Corporation dated 27 March 2023. The respondent says that this left them without a toilet, without waterproofing and without a usable bathroom.

36. The respondent says that the strata committee paid for Instaplumb’s plumbing work but did not take responsibility for, and refused to acknowledge, any waterproofing responsibilities or remedy the damage the work had caused internally. Furthermore, the respondent alleges the strata committee “also refused to take any responsibility for the broken waste pipes beneath the shower and the bath, or the associated waterproofing and internal damage”. This is not consistent with the Instaplumb report of 27 March 2023, which notes the original floor membrane was breached due to the “shower pipe being previously removed prior to [Instaplumb’s] attendance”. The strata committee refused to pay the plumber for the work they had undertaken on the shower and bath waste pipes.

37. By mid-March 2023, the respondent says that he had provided 2 quotes for waterproofing and requested approval of the work so that the bathroom could be made usable again. The respondent offered to pay for the work but still the strata committee declined to issue a work order.

38. On 14 March 2024, the Owners Corporation had a licensed builder Gary Finn, of Sydney Access Consultants, inspect the bathroom and produce a critical report, mentioning the gradient of the fall of the floor tiles and design declarations regarding the waterproofing, and the requirement to engage design and building professionals, amongst other technical issues. He refers to himself as a “registered architect and licensed builder”. He has not purported to provide this evidence as an independent expert witness in accordance with NCAT Procedural Direction 3. The Tribunal has no reason to doubt Mr Finn’s competence and stated qualifications. Though it would have been more helpful had he signed up to the this code of conduct, the Tribunal must do the best it can with the material provided to it and in this respect is comfortable relying upon his recommendations. It was not contradicted by any form of comparable evidence from the respondent, other than the respondent’s and Ms Mottram’s own opinions including as to regulatory requirements expressed by Mr Finn and the cost of the work required. The qualifications of the respondent and Ms Mottram to express such views were not in submission or evidence and the Tribunal finds them less reliable than those of Mr Finn.

27. The respondent questioned in his submission whether the author was related to the lot owner and member of the strata committee Aaron Finn, given their shared surname. This was not the subject of any questioning at the hearing and at the moment stands as an inference which the applicant sought to draw in his submission. Ultimately the relevance to the application is not clear and to the extent criticism is intended, it seems directed at the person and not the issues.

28. The respondent asserts he requested general meetings of the Owners Corporation to approve a by-law for the work to be undertaken and provided several draft by-laws. The Owners Corporation says that the by-laws were unacceptable and could not be put before a meeting. The strata committee instead produced a by-law that it would accept. The respondent declined this offer because he had his preferred by-law. Those by-laws were not in direct evidence. Various objections were apparently made to each other’s drafting, not relevant for deciding the application for the orders sought by the Owners Corporation. They followed separate proceedings commenced by the respondent against the Owners Corporation and settled on the basis of the registration of a by-law (the terms of which could not be agreed, as mentioned).

29. By late April 2023, the respondent says he had been without rental income for four months. The respondent decided to complete the work himself. On the respondent’s evidence, the unfinished work was completed and a certified waterproofer sealed the whole bathroom, laying new tiles over the original tiles and installing a new toilet, vanity and shower screen. The bathtub was not reinstalled. The cost was approximately $3,500. The unit was then leased. A copy of the waterproofing certificate, along with photos and details of the work were provided to the Owners Corporation as part of the submission in the previous proceedings in the Tribunal.

30. The Owners Corporation relies upon a revised report of Mr Finn issued 13 February 2025. He states that the respondent requested that he, Mr Finn, not take photographs of the renovations completed by the respondent. Refers to his earlier observations. He includes with his report a draught specification which is indicative work required to be performed. To comply with the home building act. He considers that the probable cost of the work is in the range of between 15,000 and 25,000 plus GST.

31. The respondent has not provided a response to this report. The observations and conclusions of the Tribunal at [38] and [39] above resonate. That is, in the absence of “best practice evidence” in a form compliant with the Tribunal’s Procedural Direction 3 for expert evidence, the Tribunal must do the best it can with the information provided. The respondent lacks evidence from a person qualified to challenge the evidence of Mr Finn despite having had the opportunity to file evidence in response at the time his other evidence and submissions were filed later.

Jurisdiction and consideration

44. The respondent seeks to defend this application by raising what he seems to consider is an issue of principle: that he did not set out to renovate the bathroom or alter it. He says the work he did was necessitated by the broken waste pipes. This might be relevant in an application to the Tribunal by the respondent to order the Owners Corporation to approve the works carried out under s 126(1) or (2) of the SSMA, or under s 149(1)(a) for an order prescribing a change to a by-law by because the owners corporation unreasonably refused to make a common property rights by-law. That is not however the application presently before the Tribunal, nor is there evidence in the present application which would support making such orders: see above [7].

45. This question before the Tribunal in this application is whether the work carried out by the respondent was permitted under the SSMA.

46. The jurisdiction of the Tribunal to make the orders sought by the Owners Corporation under the SSMA is contained in a number of provisions of the SSMA. Certain facts need to be found to establish the applicability of that jurisdiction. In light of the facts, and in the absence of the specification of particular provisions of the SSMA by the parties, doing the best I can I have determined the following provisions to be relevant.

47. Generally speaking, the breach of a provision of the SSMA gives rise to the jurisdiction of the Tribunal to make orders under s 232(1) of the SSMA. Relevant to the facts of this case is sub-s (1)(a):

232   Orders to settle disputes or rectify complaints

(1) Orders relating to complaints and disputes The Tribunal may, on application by an interested person, original owner or building manager, make an order to settle a complaint or dispute about any of the following—

(a)  the operation, administration or management of a strata scheme under this Act,

…

48. The Owners Corporation is an interested person under s 226(1)(a) of the SSMA, with standing to bring an application for an order under s 232(1). The subject matter of its claim concerns the “operation, administration or management of” the strata scheme under strata plan no. 550.

49. There is no time limit for the Owners Corporation to bring a claim under this section. Unless specifically included in a section of the SSMA, there is a time limit of 28 days to bring the application: r 23 Civil and Administrative Tribunal Rules 2014 (NSW). The general time limit of 28 days commences to run from the date of the contravention or the date the dispute arose. Because the failure of the respondent to obtain authorisation for the works as required under Part 6 of the SSMA contains no express time limit for bringing a claim, the time limit of 28 days within which to bring a claim commences every day there is a breach. Effectively this means there is no enforceable time restriction and the Owners Corporation has brought the current application within time.

50. Looking now to provisions which may have been breached, the facts give rise to the following potentially relevant sections.

111   Work by owners of lots affecting common property

An owner of a lot in a strata scheme must not carry out work on the common property unless the owner is authorised to do so—

(a)  under this Part, or

(b)  under a by-law made under this Part or a common property rights by-law, or

(c)  by an approval of the owners corporation given by special resolution or in any other manner authorised by the by-laws.

51. I am satisfied that work has been carried out on the common property by the respondent. There is no dispute that the floor of the bathroom has been disrupted, floor tiling removed, and work undertaken to sewer pipes. The original waterproofing, such as it was, was broken. Section 111 of the SSMA required that work to be authorised either under Part 6 of the SSMA, a by-law or by an approval of the Owners Corporation given by special resolution or in any other manner authorised by the by-laws. In respect of sub-ss (b) and (c), no by-laws under Part 6 or approved common property rights by-laws were put into evidence by the parties, nor was there evidence of any approval by the Owners Corporation given by special resolution or evidence of any other manner of authorisation. The submissions of the parties are premised on no such formal authorisation being given. That leaves the question of whether sub-s (a) was engaged – i.e. is there a responsive section in Part 6 of the SSMA to assist the respondent in showing he was authorised to undertake the works?

52. The respondent suggests that the work he undertook was of a cosmetic nature: see [22] above. That implies an exemption is claimed from the above authorisation requirements under s 109 of the SSMA:

109   Cosmetic work by owners

(1)  The owner of a lot in a strata scheme may carry out cosmetic work to common property in connection with the owner’s lot without the approval of the owners corporation.

(2)  Cosmetic work includes but is not limited to work for the following purposes—

(a)  installing or replacing hooks, nails or screws for hanging paintings and other things on walls,

(b)  installing or replacing handrails,

(c)  painting,

(d)  filling minor holes and cracks in internal walls,

(e)  laying carpet,

(f)  installing or replacing built-in wardrobes,

(g)  installing or replacing internal blinds and curtains,

(h)  any other work prescribed by the regulations for the purposes of this subsection.

…

(5)  This section does not apply to the following work—

(a) work that consists of minor renovations for the purposes of section 110,

(b)  work involving structural changes,

(c)  work that changes the external appearance of a lot, including the installation of an external access ramp,

(d)  work that detrimentally affects the safety of a lot or common property, including fire safety systems,

(e)  work involving waterproofing or the plumbing or exhaust system of a building in a strata scheme,

(f)  work involving reconfiguring walls,

(g)  work for which consent or another approval is required under any other Act,

(h)  any other work prescribed by the regulations for the purposes of this subsection.

…

53. The work undertaken by the respondent includes the type contemplated by sub-s (e): it is “work involving waterproofing or the plumbing or exhaust system of a building in a strata scheme”. The respondent tendered evidence of new waterproofing in the form of a “waterproofing certificate” and invoice from the contractor he engaged. At [37], the respondent’s evidence about providing two quotes for waterproofing was discussed. The section 109 exemption from authorisation therefore cannot apply on the respondent’s own evidence.

54. Nor can the respondent engage the exemption from a special resolution for work affecting common property by seeking to argue the bathroom work was a “minor renovation”, under s 110 of the SSMA which would permit a general resolution. Section 110(7)(d) specifically exempts “work involving waterproofing” from the “minor renovation” exception. Even were the work a minor renovation, it would still have required a general resolution from the Owners Corporation. That was not obtained. The closest the respondent comes to engaging authorisation is the suggestion that Ms Mottram requested a work order from the secretary of the strata committee, Lisa, on 17 January 2023 (see [23] above) or that maybe earlier she had approved the work (see [16]). There can be no credible suggestion that s 111 of the SSMA was followed and the required approvals obtained before the respondent’s bathroom work began. The alleged urgency cannot be established by the respondent either: see [17] above, where the respondent submits that neither their tenants nor leasing agent would have noticed the sewer leakage.

55. Thus, in the absence of any evidence of:

1. an approval under Part 6;

2. a by-law made under this part or a common property rights by-law;

3. the approval of the Owners Corporation given by special resolution or any other manner authorised by the by-laws was required under s 111 of the SSMA,

the Tribunal finds that there was no approval given by the Owners    Corporation for the performance of the respondent’s work. The work cannot    be considered a minor renovation approved by the Owners Corporation.

56. The Tribunal must now consider whether the orders brought by the Owners Corporation under s 232(1) (or another order within the discretion of the Tribunal under s 241) will settle or rectify its complaint.

57. The Owners Corporation seeks the removal of the defective work and reinstatement to the original condition, with a certificate of compliance to be provided to the Owners Corporation in the name of the Owners Corporation which shall include a certificate of waterproofing designating that the work complies with the Australian construction code.

58. Section 232(1)(a) confers a broad power on the Tribunal to make orders to settle disputes. If the Tribunal can be satisfied that the appropriate remedy is to remove the unlawfully undertaken work and reinstate the previous bathroom to the extent possible, it can do so.

59. The Tribunal is also given a specific power to order rectification of work where it is satisfied that work carried out by a lot owner in the position of the respondent has caused damage to common property.

132   Rectification where work done by owner

(1)  The Tribunal may, on application by an owners corporation for a strata scheme, make either of the following orders if the Tribunal is satisfied that work carried out by or for an owner or occupier on any part of the parcel of the scheme has caused damage to common property or another lot—

(a)  an order that the owner or occupier performs the work or takes other steps as specified in the order to repair the damage,

(b)  an order that the owner or occupier pay to the owners corporation or the owner of the lot a specified amount for the cost of repairs of the damage and any associated costs, including insurance and legal costs.

(2)  An amount payable by an owner or occupier to an owners corporation under this section is payable, and may be recovered, under this Act as if it were an amount of unpaid contributions.

60. I am satisfied on the balance of probabilities that:

1. the failure by the respondent to obtain proper authorisation for the bathroom works;

2. the critical evidence of Mr Finn about deficiencies in the way that work was undertaken;

3. the unverified qualification of the waterproofer who vouched for his own waterproofing work,

constitutes damage for the purpose of s 132(1)(a), attracting the jurisdiction of the Tribunal to make an order for rectification. There is no reason to construe the “damage” referred to in s132(1) narrowly when invoking this section, for example as an obvious condition requiring immediate rectification lest there be some imminent further harm.

61. As in Owners of Strata Plan No 5319 v Price [2019] NSWCATD 3 at [19]:

“While there is no immediate evidence before the Tribunal that the works are defective or have had any negative impact on common property, the onus is not on the applicant to produce such evidence. Just because no evidence of that nature has been produced, does not mean that the Owners Corporation can be assured that the common property has not been adversely affected by the unauthorised works. The regime and regulation imposed by the statute of authorisation and by-laws clearly protects an applicant from any prospective defects or damage that might arise on common property.”

62. For a similar view that the term “damage” need not be construed narrowly, see e.g. The Owners – Strata Plan No 68255 v Downs; Downs v The Owners – Strata Plan No 68255 [2021] NSWCATCD 34 at [153].

63. As stated by the Tribunal in The Owners - Strata Plan No. 31293 v Lewinsohn; Lewinsohn v The Owners - Strata Plan No. 31293 [2021] NSWCATCD 121 at [26], “the motives the Lot owner expressed for performing the works, whether genuinely held or not, do not excuse failure to comply the applicable provisions of the SSMA”.

64. I am satisfied that orders should be made under s 232(1)(a) and also s132(1)(a) to remove the current bathroom and to reinstate the old bathroom to its previous specification, by way of rectification. Naturally that will require new bathroom fixtures, the old ones having been discarded (apparently in the skip bin), which should be of similar design and character. Given the suggestion that the Owners Corporation paid for a portion of the works undertaken [36], those limited works are to be excluded from the reinstatement order given the implicit approval by the Owners Corporation of those limited works.

65. The respondent should be provided with a year to undertake these works. That will provide time for the respondent, should he wish to do so, to apply to the Tribunal if he considers consent from the Owners Corporation to his works, past or future, has been unreasonably withheld. Such an application would ideally be made after obtaining legal advice; nothing in these reasons should be understood to express a view as to the prospects of such an application succeeding.

Conclusion

66. Accordingly, the Tribunal makes the following orders:

1. Order that the respondent carry out, in accordance with the specification provided by Gary Finn dated 13 February 2025, the removal of the bathroom installed at Lot 1 Strata Plan No. 550 including all alterations and additions undertaken by or on the respondent’s behalf (except for the limited works paid for by the Owners Corporation) and reinstate the bathroom as near as practicable to its previous condition (Reinstatement Works).

2. Order that the respondent ensure that the Reinstatement Works are carried out in a proper and competent manner, by appropriately qualified, licensed and insured contractors, in a manner that does not disturb the peaceful enjoyment of the owners or occupiers of the other lots in Strata Plan No. 550 and in accordance with all applicable laws and by-laws, and are completed within 12 months of the date of this order.

3. Order that, in the event that the respondent fails to comply with orders 1 and 2 above, The Owners – Strata Plan No 550 be permitted to enter Lot 1 in Strata Plan No. 550 and carry out the Reinstatement Works in accordance with section 120 of the Strata Schemes Management Act 2015.

4. Order that the application be otherwise dismissed.

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

Registrar

Decision last updated: 22 September 2025