Trevallyn-Jones v Owners Strata Plan No 50358 - [2009] NSWSC 694

No judgment structure available for this case.

CITATION: Trevallyn-Jones v Owners Strata Plan No 50358 [2009] NSWSC 694

HEARING DATE(S): 22, 23, 24 and 26 June 2009

JUDGMENT DATE :
23 July 2009

JURISDICTION: Equity Division

JUDGMENT OF: Ward J

DECISION: Judgment for the plaintiff.

CATCHWORDS: REAL PROPERTY – strata title – management and control – body corporate: powers, duties and liabilities – duty under s 62(1) of Strata Schemes Management Act 1996 properly to maintain and keep in a state of good and serviceable repair the common property – whether duty strict – whether owners corporation breached duty – whether plaintiff caused or contributed to own loss or is estopped from asserting loss – whether plaintiff failed to mitigate loss – held that duty strict – owners corporation breached duty – plaintiff did not cause or contribute to loss and not estopped from asserting loss – plaintiff did not fail to mitigate loss.

LEGISLATION CITED: Civil Liability Act 2002
Civil Liability Amendment (Personal Responsibility) Act 2002
Law Reform (Miscellaneous Provisions) Act 1965
Law Reform (Miscellaneous Provisions) Amendment Act 2000
Limitation Act 1969
Statutory Duties (Contributory Negligence) Act 1945
Strata Schemes Management Act 1996
Strata Titles Act 1973

CATEGORY: Principal judgment

CASES CITED: ACQ v Cook [2008] NSWCA 161
Astley v Austrust Limited (1999) 197 CLR
AWA Limited v Daniels (1992) 9 ACSR 383
Booksan v Wehbe [2006] NSWCA 3
Bourke v Butterfield and Lewis Limited (1926) 38 CLR 354
Caswell v Powell Duffryn Associated Collieries Limited [1940] AC 152
Darling Island Stevedoring and Lighterage Company Limited v Long (1956) 97 CLR 36
Lewis v Denye [1940] AC 921
Lubrano v Proprietors Strata Plan 4038 (1993) 6 BPR 13,308
Margiz Pty Limited v Proprietors Strata Plan No 30234 (1993) 30 NSWLR 364
Munce v Vinadex [1974] 2 NSWLR 235
Payzu Limited v Saunders [1919] 2 KB 581
Piro v W Foster & Co Ltd (1943) 68 CLR 313
Pyrenees Shire Council v Day (1998) 192 CLR 330
Ridis v Strata Plan 10308 (2005) 63 NSWLR 4
Seiwa Australia Pty Limited v Owners SP 35042 [2006] NSWSC 157
Stuart v Kirland-Veenstra (2009) 254 ALR 432
Union Shipping New Zealand Limited v Morgan (2002) 54 NSWLR 690

PARTIES: Meredith Trevallyn-Jones (Plaintiff)
Owners of Strata Plan No 50358 (Defendant)

FILE NUMBER(S): SC 2308 of 2008

COUNSEL: M W Young (Plaintiff)
S B Dixon (Defendant)

SOLICITORS: Dixon Holmes du Pont (Plaintiff)
McCulloch and Buggy (Defendant)

- 120 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WARD J

THURSDAY 23 JULY 2009.

2308/08 MEREDITH TREVALLYN-JONES V OWNERS OF STRATA PLAN NO 50358

JUDGMENT

1 In these proceedings the owner of a lot (“Unit 7”) in Strata Plan No 50358 (Ms Trevallyn-Jones) has sought declaratory and other relief in relation to the maintenance and repair of common property within the Strata Plan.

2 There is no dispute that the areas in question (the tiled floor of the outside balcony of Unit 7, the external wall of Unit 7 located between the interior and the balcony and a wall dividing the interior of Unit 7 from the adjacent unit, together with the parquetry flooring inside Unit 7) form part of the common property of the Strata Plan.

3 Ms Trevallyn-Jones alleges that the Owners Corporation was in breach of its statutory duty in that it failed properly to maintain and repair the balcony floor and walls so as to prevent rainwater from penetrating into the interior of Unit 7 and failed to repair damage to the parquetry floor of Unit 7 which had resulted from water penetration into Unit 7.

4 Rectification works were finally completed in December last year. Ms Trevallyn-Jones claims damages for breach of statutory duty. (In her Statement of Claim an order was sought in the alternative for equitable damages (or damages) for the devaluation of Unit 7 by reason of the failure of the Owners Corporation to fulfil its statutory duty of maintenance and repair. However, this alternative claim was not pressed.) What Ms Trevallyn-Jones principally seeks is the rent which could have been obtained had Unit 7 been leased for the period from 13 May 2007 to February 2009. Consequential relief is also sought by way of an order pursuant to s 229 of the Act that any damages or costs payable by the Owners Corporation pursuant to any order in the proceedings (and any interest thereon) be paid from contributions levied only in relation to lots in the Strata Plan other than Ms Trevallyn-Jones’ lot.

5 The defendant, being the Owners of Strata Plan No 50358 (“Owners Corporation”), does not deny that it has a statutory duty pursuant to s 62 of the Strata Schemes Management Act 1996 (the Act) properly to maintain and keep in a state of good and serviceable repair the common property of the Strata Scheme vested in the Owners Corporation and to renew or replace any fixtures or fittings comprised in the common property (although in its Defence filed 15 July 2008 it denies the existence of the statutory duty pleaded in paragraph 3 of the Statement of Claim).

6 What the Owners Corporation denies is that there was any breach of statutory duty and that Ms Trevallyn-Jones has suffered any loss and damage by reason of the alleged breach of statutory duty. Further or in the alternative, the Owners Corporation pleads: first, that it has performed or attempted to perform the rectification works “but that it has been hampered or prevented from so doing by the actions of [Ms Trevallyn-Jones] and as a consequence she is estopped from alleging that she has suffered any injury, loss and damage as a consequence” (paragraph 10 Defence); secondly, that, if it is found that the Owners Corporation was in breach of statutory duty, then the loss and damage suffered arose wholly or in part as a consequence of Ms Trevallyn-Jones’ own fault and/or actions (paragraph 12); and, thirdly, that Ms Trevallyn-Jones failed to take steps to mitigate her loss “such as agreeing to repairs/replacement of the parquetry floor being performed”. The conduct of Ms Trevallyn-Jones relied upon for the allegation that she suffered loss and damage as a consequence of her own fault and/or actions was particularised as follows:

“(a) Preventing rectification works being performed including, but not limited to the removal and replacement of the parquetry floor.

(b) Hampering tradesman [sic] in the performance of agreed rectification works.

(c) Failing to agree to precisely what rectification works were required.

7 During the hearing (although this was not expressly pleaded) it was put that the failure to mitigate extended to a failure by Ms Trevallyn-Jones to effect basic remedial works on the unit in order to permit them to be leased prior to replacement of the parquetry floor and/or failure to seek approval from the Owners Corporation for such works to be carried out pending replacement of the parquetry floor.

Issues

8 Broadly speaking, the issues in the proceedings may be summarised as follows:

1. Whether the Owners Corporation breached its statutory duty under s 62(1) of the Act (which involves questions as to the scope of that duty and whether, if that duty is not absolute but rather may be discharged by taking all such steps as are reasonable in the circumstances, the Owners Corporation took all such reasonable steps).

Summary

9 For the reasons set out below, I have found that:

1. The duty under s 62(1) of the Act is an absolute duty and was breached by the Owners Corporation. Had I been of the view that the duty could be discharged by taking all reasonable steps, I would have found that the Owners Corporation failed to do so.

2. Ms Trevallyn-Jones has established her claim to loss and damage by way of foregone rent over the relevant period as well as the cost of experts’ reports and the damage to property/cleaning costs as claimed. I am not satisfied that she either caused or contributed to her own loss; nor that she is estopped from claiming that loss; nor that she failed reasonably to mitigate that loss.

Background facts

10 Tendered in evidence (in most cases twice, since the parties did not manage to agree to a single tender bundle) was a considerable amount of correspondence, mostly passing between Ms Trevallyn-Jones and the Executive Committee of the Owners Corporation (or its chairman) or between Ms Trevallyn-Jones and the Strata Managing Agent, Peter Clisdell Pty Limited (“the agent”). That correspondence was admitted by me on the basis agreed between Counsel that the correspondence was evidence of the fact that particular communications, complaints or assertions were made; not as evidence of the truth of the (often contentious) statements contained therein. Where reference is made to the content of the parties’ correspondence in these reasons, it should be understood in that context. The two schedules summarising parts of the correspondence to which Mr Radford (the chairman of the Executive Committee of the Owners Corporation at various times) had had regard (as annexed to his affidavits of 23 September 2008 and 22 June 2009 respectively) were admitted by me on the same basis. (In general I have attempted to give both exhibit references to the correspondence which was tendered in duplicate.)

11 As to the factual background to this dispute, it is necessary (given the defences raised by the Owners Corporation) to set out the chronology of events in some detail.

· Overview

12 Ms Trevallyn-Jones, an architect, purchased Unit 7 in the Strata Plan in February 2001. At that time, and until about mid 2003, Ms Trevallyn-Jones’ primary residence was in Cremorne.

13 From mid to late 2003 (and up until early 2007), Ms Trevallyn-Jones was primarily residing in Unit 7, although from time to time in 2003/2004 she returned to the home in Cremorne where her then husband lived (to walk his dogs) (T 31). Ms Trevallyn-Jones was married at the time but living separately from her husband and in an intimate relationship with a woman who subsequently acquired the adjacent unit to Unit 7 (Ms Wickham). That relationship, according to Ms Trevallyn-Jones, lasted from some time in 2003 to January 2004 and then from June 2004 to mid February 2005 (T 32). (Ms Wickham’s affidavit sworn 6 November 2008 corroborates this.) Ms Trevallyn-Jones says she and her husband were separated from January 2006 (T 50).

14 I note this evidence (which is not directly relevant to the issues in dispute) for two reasons: first, because it was suggested for the Owners Corporation that the nature of the relationship between Ms Trevallyn-Jones and Ms Wickham was such that Ms Trevallyn-Jones really wanted no one to come into or inspect her premises because she did not want people to see paraphernalia in the unit at that time (T 60/61) (a suggestion which was in my view convincingly denied by Ms Trevallyn-Jones) and, secondly, because it was said that the reason Ms Trevallyn-Jones had vacated Unit 7 in May 2007 was due, not to the water penetration problem or the state of repair of the parquetry flooring, but to the fact that after Ms Wickham moved into the adjacent unit Ms Trevallyn-Jones had expressed the view that she was unable to live in Unit 7 (and therefore it was said that Ms Trevallyn-Jones had chosen to move out of the unit for reasons unconnected with any desire to rent out the unit), (as to which, while Ms Trevallyn-Jones denied that the reason she left the unit was because of personal problems with Ms Wickham - T 63/64, there was evidence which suggested that this may have been a contributing factor, which I consider later).

15 Whether or not Ms Wickham’s occupation of the adjacent unit led (or contributed to) the decision by Ms Trevallyn-Jones to vacate the unit in May 2007 (a decision Ms Trevallyn-Jones had foreshadowed since at least 2004), Ms Trevallyn-Jones’ personal circumstances over the period may also help to explain the timing of Ms Trevallyn-Jones’s varying instructions to the agent and/or the Owners Corporation as to her postal address, a matter which in turn seems at least partly to explain difficulties encountered from time to time in communications between the Owners Corporation (or the agent) and Ms Trevallyn-Jones.

16 From time to time Ms Trevallyn-Jones’ address for written notices or communications was changed and Ms Trevallyn-Jones gave evidence that letters sent to her at one or other address were not always received by her in the ordinary course or at all. Ms Trevallyn-Jones says that in about 2003/04 she asked for mail to be sent to the Cremorne address (even though she was primarily residing in Unit 7) because the mailboxes in the building were broken and she was having a problem with a neighbour, but then in 2006 she asked for mail to be directed to a post office box number (T 50).

17 In this regard I accept Ms Trevallyn-Jones’ explanation for the delay in receipt or non-receipt by her of certain of the correspondence to which she was taken. I see no logical reason for her to have responded to some correspondence but not to other correspondence in relation to the water penetration issues. (There was at least one instance in May 2005 (Ex 1 p 157) where Ms Trevallyn-Jones apologised in writing for the delay in responding to correspondence, and other correspondence in which she explained the position in relation to her mail and in which she had confirmed the best mode of communications with her, which seems inconsistent with any deliberate attempt on her part to remain incommunicado.)

18 Nor does it seem that Ms Trevallyn-Jones was shy of putting her views about the matter into writing. One of the complaints made of Ms Trevallyn-Jones seems to have been that she constantly wrote letters and queried decisions of the Owners Corporation or the work/recommendations of consultants or workmen it had retained. Mr Radford said, with apparent feeling, in the witness box that Ms Trevallyn-Jones had written “many, many, many, many, many, many letters” over many years (T 162). Mr Radford’s (or the Executive Committee’s) frustration seems apparent from the statement in the letter dated 22 November 2007 (on the first page) though dated, variously in the tender bundles, on the second page as 27 November 2007 and 21 January 2008 (the copy received by Ms Trevallyn-Jones being written on the letterhead of the agent, though in the format of some of Mr Radford’s other correspondence) that “No further correspondence will be entered into regarding the matter” (Ex 1 p 340; Ex D p 395).

19 Ms Trevallyn-Jones noticed a buckling of the timber of the parquetry floor in her unit, and some blocks becoming loose, after what she described as heavy rain in April 2001. After further rain in early 2002, Ms Trevallyn-Jones again noticed buckling of the parquetry floor. Ms Trevallyn-Jones first wrote to the agent about water penetration to Unit 7 by letter dated 1 March 2002 (Ex D p 4; Ex 1, p 17).

20 (There was objection taken, which was ultimately not pressed, by Mr Dixon (Counsel for the Owners Corporation) to the description, where appearing in Ms Trevallyn-Jones’ affidavits, of rain as being “heavy” on the basis that this was a conclusion. Ultimately, I do not consider that anything turns on this description (which I accept can only be a matter of lay opinion, the foundation for which was not explored during the hearing), although I do note that at least one of the witnesses who gave evidence for the Owners Corporation (Mr Peter Hosper) had himself described later rain in May 2003 as “torrential”.)

21 Whatever the force of the rain, and however it might accurately have been described in meteorological terms, it seems not to be seriously in dispute that from 2002 the Owners Corporation was on notice that there were water penetration problems affecting at least Unit 7. By 2003 it was apparent that the water penetration problems affected a number of other units in the Strata Plan (including at least Units 4, 5, 6, 8, 9 and 10).

22 There were three tranches of work carried out in an attempt to fix the water penetration problems – in August 2005; over the period May/December 2007; and finally in November 2008. Apart from temporary repairs apparently effected on occasions by Ms Trevallyn-Jones, the damaged parquetry floor was not finally repaired until December 2008.

23 A relevant factual issue (albeit one on which no expert evidence was adduced by the Owners Corporation) is whether, in the case of Unit 7, the water penetration problem was exacerbated, or contributed to, by conduct taken by Ms Trevallyn-Jones and/or a building consultant retained by her (by the installation of an air conditioner in about February 2005 or by water testing carried out in July 2007 and again in February 2008).

24 Ms Trevallyn-Jones vacated the unit in May 2007 with the stated intention of leasing the unit. It was not until February 2009 that the unit was finally leased.

25 Counsel for Ms Trevallyn-Jones, Mr Young, quite fairly in my view, summarised the position as follows: it took a period of almost seven years from the initial complaint by Ms Trevallyn-Jones in relation to water penetration until the problem was finally fixed by contractors engaged by the Owners Corporation; it had taken three and a half years (ie until August 2005) for the Owners Corporation to do any work at all and then there was a gap of almost two years before further work took place, which work then stretched over a period of seven months and for another year before it was finally completed; during which period orders were made by the CTTT on 16 January 2007 and amended on 9 February 2007 (which were breached by the Owners Corporation given that, far from completion of the work by 31 March 2007 as ordered, the work did not even commence until late May 2007). I might add that during this period similar water penetration problems in various other units (including those owned by Mr Radford, Mrs Robertson-Swann, Mr Hosper and Mr Keys) seemed to have been rectified in a much shorter time frame.

26 What was the Owners Corporation’s response? In effect, it would seem encapsulated by the summing up given by Mr Radford as follows:

I believe the Owners Corporation made every effort – certainly myself in my power at the time I was chairman, to the best of my ability – to get the matter addressed. But we are dealing with the [most] difficult person you could imagine, and a most uncooperative person, in [trying] to resolve the matter (T 186).

27 Turning then to the chronology of events, I note as follows.

· 2002-2003

28 As noted above, Ms Trevallyn-Jones first raised the water penetration problem with the agent in March 2002. She also raised the issue at a general meeting of the Owners Corporation in mid 2002. Minutes of the 12 June 2002 meeting (Ex 1 p 19) (contrary to the assertion made in Mr Radford’s summary) record a reference to cracks in Unit 7 and a leak coming from the courtyard of Unit 7.

29 At the 2002 Annual General Meeting, Ms Trevallyn-Jones was elected as a member of the Executive Committee of the Owners Corporation and for about two years up to the general meeting in July 2004 Ms Trevallyn-Jones remained a member of the Executive Committee of the Owners Corporation. According to other members of the Executive Committee (Mr Radford and Mr Hosper) who gave evidence in the proceedings, during that time it was largely left to Ms Trevallyn-Jones to deal with the agent in relation to the water penetration issue.

30 In May 2003, there was again water penetration into Unit 7 (and a number of other units within the Strata Plan, including Units 8,9 and 10) after a further period of rain. In July 2003, Ms Trevallyn-Jones again raised the issue of water penetration into Unit 7, both with the agent and at the Annual General Meeting of the Owners Corporation. (According to Ms Trevallyn-Jones’ correspondence to the agent on 25 July 2003, she had at the July 2003 meeting “agreed to try and obtain an architect’s report on the leak from the courtyard of Unit 7 and also possibly review the leaks affecting Units 3 and 5”. Ms Trevallyn-Jones’ facsimile transmission of 25 July 2003 (Ex 1 p 26) to the agent reported that Nick Krikis of Krikis Taylor Architects was willing to look at the floor (of Unit 7) and give some advice “which can confirmed that there has been water penetration and damage to the floor and advise on the most likely causes of the water ingress”. Ms Trevallyn-Jones also reported that a further area of the parquetry floor had bubbled up “and is now presenting a trip hazard”.

31 On 20 October 2003, Ms Trevallyn-Jones wrote to the Owners Corporation formally making an application, inter alia, that it carry out repairs to the parquetry floor and to the common property to prevent water penetration into Unit 7 (Ex 1 p 78; Ex D p 7).

32 In November 2003, the Executive Committee apparently resolved to appoint tradesmen to review the damage to Unit 7 (Ex 1 p 44, minutes of Executive Committee meeting). However, it does not appear that such a review took place (at least of Unit 7) at or about that time. Certainly, the principal witness called for the Owners Corporation (Mr Radford) was unable to shed any light on anything that had happened over the period from November 2003 to mid 2004 to address the water penetration problem in Unit 7. He suggested that it was being organised by the agent (T 126).

33 What is apparent, from the evidence of each of Mr Radford, Mr Hosper and Mr Keys (owners of other units in the Strata Plan), is that some works were done to rectify water damage in other units (or at least their respective units) over the period through to about May 2004 (in Mr Radford’s case this was in train when he purchased his unit and in the case of Messrs Hosper and Keys it would seem it took place over a 12 month period from some time around May 2003). Mrs Robertson-Swann (another unitholder and member of the Executive Committee for most of the relevant period) also attested to problems with a leaking ceiling in her unit being fixed at some time.

· 2004

34 In June 2004, Ms Trevallyn-Jones applied to the Office of Fair Trading for a mediation of disputes with the Owners Corporation. Those disputes, as identified by her in the application, included the water penetration issue (Ms Trevallyn-Jones seeking repairs to the parquetry flooring). Mr Radford, in the witness box, was quick to say that one of the issues for mediation was that of outstanding strata levy fees claimed from Ms Trevallyn-Jones at the time. (By reference to the assertions made in correspondence at about that time there seems to have been a dispute by Ms Trevallyn-Jones as to amounts levied by way of interest or other charges raised by the agent.) Ms Trevallyn-Jones, in her application for mediation, indicated that she was seeking by way of an outcome (among other things) that new strata managing agents be appointed and for repairs to be carried out to prevent water penetration and repair the parquetry floor.

35 The Owners Corporation apparently declined to participate in a mediation (just as it later seems to have chosen not to attend or put any submissions before the Strata Titles Adjudicator on Ms Trevallyn-Jones’ application in January 2007 for orders in relation to the rectification of the water penetration problem).

36 In July 2004, a new Executive Committee was elected, which did not include Ms Trevallyn-Jones. At around this time Ms Trevallyn-Jones herself engaged building consultants (Moldovan & Associates) to inspect the unit and report on its condition.

37 A report from Mr Warwick MacGregor then of Moldovan & Associates was tabled by Ms Trevallyn-Jones at the Annual General Meeting in July 2004. At that time, according to Mr Radford, “we decided to ask Moldovan to see whether the problem would have been the same in the other three apartments [ie Units 4, 5 and 6]” (T 147 and see Ex 1 p 75 in which Mr Radford conveyed that decision to the agent on 16 August 2004).

38 In other words, before addressing the problem in Unit 7, the existence of which had been confirmed by Moldovan & Associates, the Owners Corporation decided to assess the position in three other units (Units 4, 5 and 6) which had apparently also suffered water penetration problems. In the witness box Mr Radford agreed this was probably an unsatisfactory response, when he knew that the issue (with water penetration to Unit 7) had by then been going on for more than two years.

39 It was then apparently decided (as recorded in the Executive Committee meeting minutes of 20 July 2004, Ex 1 p 72) to call an Extraordinary General Meeting to determine the best approach to the problem (T 149), something that did not take place until 23 November 2004.

40 Meanwhile, by letter dated 2 August 2004 (Ex 1 p 77; Ex D p 13), Ms Trevallyn-Jones had put the Owners Corporation (via the agent) squarely on notice of her intention to rent out her unit and her belief that this was not possible while the parquetry floor remained in its then buckled state. She wrote that, “I wish to be in a position where I can lease my unit, but I am currently unable to do this because water damage to parquetry has not yet been repaired”. (I note that this was not only before her relationship with Ms Wickham finally came to an end but it was also well before Ms Wickham moved into the adjacent unit.) Ms Trevallyn-Jones asserted in that letter that parts of the parquetry flooring were “bowed up or loose and (as previously advised) dangerous to walk upon”.

41 The building report commissioned by the Owners Corporation from Moldovan & Associates, which was prepared by Mr Warwick MacGregor (who was called by Ms Trevallyn-Jones to give evidence in the proceedings), in late August 2004 recommended immediate rectification work. In particular, Mr MacGregor recommended a “torch-on type membrane” by way of waterproofing. The report, according to Mr Radford, was sent to both Ms Trevallyn-Jones and to the developer of the building (described in Mr Radford’s summary as being a company associated with the then owner of the adjacent unit to Ms Trevallyn-Jones, ie the unit which was subsequently acquired by Ms Wickham, and of two other units in the Strata Plan).

42 The August 2004 Moldovan & Associates report outlined two possible scopes of work. The first was described by Ms Trevallyn-Jones colloquially as a “belts and braces” approach (which Ms Trevallyn-Jones considered would cost more than was necessary) and the second as a “cheap and nasty” approach (see letter dated 8 September 2004 from Ms Trevallyn-Jones to Mr Radford, Ex 1 p 83).

43 Emphasis was placed by the Owners Corporation, in the hearing before me, on the fact that Ms Trevallyn-Jones had not “approved” either of the two scopes of work prepared by Moldovan & Associates in August 2004 to address the water problems (and the particulars to paragraph 12 of the Defence refer to a failure of Ms Trevallyn-Jones “to agree to precisely what rectification works were required”). It was not, of course, a matter for Ms Trevallyn-Jones as an individual unitholder unilaterally to approve (or not to approve) common property works (as Mr Radford himself seems to have recognised – Ex 1 p 272; in later correspondence, asserting that the Owners Corporation did not have any obligation to provide her with any documentation in relation to the work - Ex 1 p 283, letter dated 5 June 2007).

44 However, even if the Owners Corporation had reasonably considered obtaining Ms Trevallyn-Jones’ approval to be necessary or prudent, the correspondence does not suggest that Ms Trevallyn-Jones’ “approval” as such was expressly sought as to this work (and in any event she gave her recommendations and the Owners Corporation in fact for the most part chose not to follow her recommendations).

45 Ms Trevallyn-Jones commented in some detail on the respective scopes of work (see Ex 1 p 83). She agreed in the witness box that it was her opinion that it was inappropriate to obtain quotations for those scopes of work (T 40); she says she suggested instead that there be a mixing and matching of different items of work, as had been suggested by Mr MacGregor himself (T 40). She said in the witness box that she would have been happy for the first scope of work to proceed but felt that it included some items that were more expensive than necessary. (A recurring, and by no means unreasonable, concern on Ms Trevallyn-Jones’ part appeared to be to encourage the Owners Corporation to avoid incurring unnecessary costs in work to the common property. What she also, again not unreasonably, sought to encourage the Owners Corporation to do was to appoint appropriately qualified experts to address various aspects of the rectification/repair works.)

46 By letter dated 9 November 2004 (Ex 1 p 116), Ms Trevallyn-Jones wrote to the agent complaining of an injury suffered by her in tripping over uneven parquetry in the unit. Mr Radford accepted in the witness box that this had or should have put the Owners Corporation on notice of a safety issue in relation to the works (T 152). Ms Trevallyn-Jones requested emergency repairs and reported a new problem – an issue of water on the upper (as opposed to the lower) balcony.

47 By letter dated 17 November 2004 (Ex 1 p 118), Ms Trevallyn-Jones wrote to the agent demanding immediate action. In that letter, Ms Trevallyn-Jones referred to a telephone conversation with the agent in which Ms Trevallyn-Jones says she was advised that the Owners Corporation would not carry out emergency repairs (and that this was to be considered at the Extraordinary General Meeting). As previously noted, I do not refer to this letter for the truth of what was asserted. However, I do note that insofar as Ms Trevallyn-Jones made that assertion to the agent, the documentary material tendered does not record any dissent from her assertion that the Owners Corporation had indicated it would not undertake emergency repairs at that stage and was proposing that the matter be considered at the Extraordinary General Meeting.

48 On 23 November 2004, some two months after the Owners Corporation had obtained its own report from Moldovan & Associates, the Owners Corporation held an Extraordinary General Meeting at which it was resolved to carry out works (not just to Ms Trevallyn-Jones’ unit, but to others as well) to prevent further water ingress. A number of options for the repair work were put before the meeting. The meeting resolved not to accept the recommendation from Moldovan & Associates for the repairs but, rather, resolved to engage a firm called Act Now Waterproofing (“Act Now”) (at the lower of the two quotes put by it) to carry out the remedial work.

49 Relevantly (in terms of the allegation that Ms Trevallyn-Jones had hindered the performance of works by refusing to approve those works), by letter dated 7 December 2004 to the agent (Ex 1 p 144) Ms Trevallyn-Jones wrote: “I acknowledge the Owners Corporation has resolved to proceed with the work and I accept it will proceed” notwithstanding that she also in that letter professed the belief that the Owners Corporation had ignored the advice of, inter alios, the architect Nick Krikis and that she did not have any confidence that the work which was proposed would resolve the problem. She also asserted her belief that it was not unreasonable to expect reasonable notice of the work and to be advised of the overall programme of the work. It appears from that letter that she was raising a particular concern as to whether the unit was to be left unsecured at any time.

50 It was not until December 2004 that arrangements were sought to be made for the inspection of Unit 7 by a representative of the firm (Act Now) engaged to carry out the works (and an issue then arose as to access to the unit). I consider the issue of access later. Nevertheless, as Mr Radford accepted in the witness box, it had taken from 20 July 2004 until December 2004 for the Owners Corporation to engage a builder to look at the problem in Unit 7 (T 150). In the meantime it seems that in November 2004 work was undertaken to the units owned by each of Mr Radford and Mrs Robertson-Swann (the then secretary of the Executive Committee). Remedial work to the unit adjacent to Unit 7 was also apparently scheduled for April 2005. The work to Unit 7 was scheduled for May 2005.

51 The works scheduled for Unit 7 in May 2005 were ultimately postponed, for a week at the workmen’s request (Ex D p 54; Ex 1 p 161) and also due to the illness of Ms Trevallyn-Jones’ father (Ex D p 55). Rain then further delayed the works.

· 2005

52 In early February 2005 Ms Trevallyn-Jones (with the approval of the Owners Corporation) arranged for the installation of an air conditioning unit in Unit 7; the compressor for the air conditioning unit was located on the external wall to the upper balcony with a conduit for electrical power from the inside of the unit. This included, as I understand it, the drilling of a hole in the balcony wall (near the sliding door to the balcony) (T 75).

53 The correspondence in the period from early 2005 to May 2005 suggests that, on Mr Radford’s part, he considered Ms Trevallyn-Jones was not being co-operative in relation to access and that, for her part, Ms Trevallyn-Jones was pressing for confirmation from the Owners Corporation as to the repair of the water damaged parquetry flooring.

54 By letter dated 2 February 2005 (Ex 1 p 151), Mr Radford wrote to Ms Trevallyn-Jones, stating that the Owners Corporation “again” was seeking Ms Trevallyn-Jones’ “cooperation” in allowing access to her unit and adding the following: “We reiterate however that repair work to your parquetry flooring will not be considered unless the waterproofing and retiling is carried out”.

55 Ms Trevallyn-Jones’ response (Ex 1 p 153; Ex D p 50) on 28 February 2005 to the agent confirmed the advice she had said she had given verbally in December to Mrs Robertson-Swann that she was happy for the proposed work to the upper balcony waterproof membrane and to the flashings of the lower courtyard to proceed on the basis as outlined in her letter. Ms Trevallyn-Jones confirmed her contact details (both mobile telephone number and mail) and indicated that she would be happy to arrange a suitable time for the work given some notice.

56 By letter dated 21 March 2005 (Ex 1 p 154) Mr Radford again wrote to Ms Trevallyn-Jones, expressing the Owners Corporation’s “disappointment” that Ms Trevallyn-Jones did not make contact during February 2005 and advising, “As previously indicated, repairs to the parquetry flooring in your apartment will only be considered once the waterproofing work has been carried out.”

57 Ms Trevallyn-Jones appears to have read this correspondence as suggesting there was some issue as to whether the repairs to the parquetry floor would in fact be effected. In particular, Ms Trevallyn-Jones took issue with the word “considered”. In her letter of 3 May 2005 to the agent (Ex 1 p 157), copied to Mr Radford and said to be in response to Mr Radford’s letters of 21 March 2005 and 26 April 2005, Ms Trevallyn-Jones referred to her “considerable concern” at the comment that repairs to the parquetry would only be “considered”, stating that the floor was dangerous underfoot and requesting confirmation that the Owners Corporation would carry out repairs without delay. In that letter, Ms Trevallyn-Jones expressly apologised for not making contact during the month of February noting that:

After advising Executive Committee member Annie Robertson-Swann in mid December 2004 that I was happy for tiling work to proceed, and she told me she understood work would likely be scheduled for after Christmas, it did not occur to me to write and confirm that this was fine by me.

58 By letter dated 6 May 2005 (Ex D p 52) the agent wrote to Ms Trevallyn-Jones confirming that the Owners Corporation “will proceed immediately with the repairs [to the water damaged flooring] as soon as the waterproofing work has been completed”.

59 Ms Trevallyn-Jones responded by letter dated 10 May 2005 (Ex D p 53) to the agent (copied to Mr Radford) that: “I am only prepared to allow the waterproofing work to the [lower balcony sliding door] hob to proceed if I receive an undertaking that the repair of the parquetry floor will proceed, including the relocation of furniture from the lower level as required to enable the repairs to proceed”. Even if this amounted to the imposition of an unreasonable condition in relation to the approval for the waterproofing works to proceed (a somewhat moot point since it does not seem to be disputed that the Owners Corporation had an obligation to rectify the damaged flooring as well as the water penetration problem), it does not appear to have been the cause of the delay between May and August 2005 and it did not relate to the upper balcony works.

60 In any event, shortly thereafter, by letter dated 15 May 2005, Ms Trevallyn-Jones wrote to the agent, copied to Mr Radford, confirming that access would be provided for the works (Ex 1 p 163). In that letter, Ms Trevallyn-Jones pointed out that if water testing was not carried out and the waterproofing membrane to the lower level had failed it was likely [as I understand it, since the works to be carried out were not the works recommended by Moldovan] that the repaired and refinished parquetry floor would be damaged by the next significant storm involving prolonged heavy rain (thus putting the Owners Corporation on notice of further expenses for which it might be liable if the proposed Act Now waterproofing works did not rectify the problem).

61 The Owners Corporation’s position in relation to the repairs to the parquetry from at least 30 July 2005 seems to have been that they would be carried out on completion of waterproofing work to be carried out by Act Now (Ex 1 p 183).

· First tranche of works – August 2005

62 The first remedial (waterproofing) works to Unit 7 were carried out by Act Now in August 2005. (As noted, by then remedial works had been carried out to at least two other units in the building.) It was suggested by the Owners Corporation that the delay in carrying out the initial works to Unit 7 was due to difficulty in obtaining access to Unit 7 from Ms Trevallyn-Jones. (I consider the issue of access in more detail later.) However, I note that Mr Radford conceded in the witness box that Ms Trevallyn-Jones’ 28 February 2005 letter (Ex 1 p 153; Ex D p 50) had made it clear that she was happy for the proposed work to be carried out (even though the works were not what Moldovan & Associates had recommended) and that she thought she had indicated that back in December 2004. Mr Radford accepted that this was not a case of Ms Trevallyn-Jones refusing to let people into the unit.

63 The first tranche of works did not include the replacement of the waterproof membrane (which had been recommended by Mr MacGregor) nor did the works include the replacement of the parquetry floor (it seems common ground that the waterproofing works needed to be addressed first).

64 In late September 2005, Ms Trevallyn-Jones wrote to the agent advising that in her opinion the Act Now waterproofing work was defective (due to ponding of water observed in the sliding door frame) and requesting rectification (Ex 1 p 187/188; Ex D p 74). The response from the Executive Committee on 10 October 2005 was that “after careful consideration of your comments and examination of the photographs” the Owners Corporation did not believe there was any problem (Ex 1 p 189).

65 In October 2005, two firms of flooring contractors inspected the unit as part of arrangements then being made for the parquetry floor to be re-laid (DPS Contracting and KB Flooring). According to Ms Trevallyn-Jones (T 48) (Ex 1 p 190), the flooring contractors advised (and as an architect she accepted this was correct) that the parquetry floor was unable to be re-laid while the concrete slab was damp (which it apparently still was as at October 2005). Ms Trevallyn-Jones reported to the Owners Corporation the continuing dampness and the likelihood that the water penetration problem was not fixed (Ex 1 p 190, Ex D p 81).

66 In December 2005, another company, Sutech Pty Limited (Sutech), prepared a report for the Owners Corporation, which noted high moisture levels and thus confirmed that there was still moisture present in the slab (Ex D p 92). That report concluded that it was unknown whether the dampness in the slab was residual or resulting from continued moisture penetration; and recommended ongoing monitoring. The Owners Corporation accepted that recommendation and decided to conduct further tests in three months (Ex 1 p 212 is a copy of a letter dated 18 January 2006 from the agent to Ms Trevallyn-Jones conveying that decision). Ms Trevallyn-Jones did not agree with that recommendation.

67 It was put to Mr Radford in cross-examination, that, in hindsight, the Owners Corporation at that stage had to confront two possibilities – first, that there remained a waterproofing problem, so that more rectification work needed to be done, or, secondly, that the works had been rectified and the parquetry floor needed then to be replaced. (A third possibility might have been that it was simply impossible to tell at that stage, although presumably a water test would have assisted in this regard.) Mr Radford confirmed in the witness box that what the Executive Committee had proposed to do was to wait for three months and then to have a further moisture test.

· 2006

68 Ms Trevallyn-Jones was not satisfied with Sutech’s recommendation for what might be termed a “wait and see” approach. On 17 January 2006, Ms Trevallyn-Jones wrote to the Owners Corporation requiring repairs to the parquetry floor to be carried out without delay, in default of which it was said that an application for adjudication would be made to the Strata Schemes Adjudicator (Ex 1 p 213; Ex D p 100). Ms Trevallyn-Jones accepted in cross-examination (T 49) that she was aware that both contractors had said they could not lay the parquetry floor while the slab was damp, and that it seemed to her that it was quite possible that there was a (remaining) water penetration problem, but said that what she was asking in January 2006 was that the Owners Corporation proceed with the rectification works and that the floor (presumably thereafter) be re-laid. Not surprisingly, Ms Trevallyn-Jones wanted all the problems rectified as soon as possible, namely both that the water penetration problem be fixed and that the parquetry floor be repaired. (Ms Trevallyn-Jones, in the witness box, referred to her earlier recommendation (in about May 2005 prior to the Act Now work having been done) for the Owners Corporation to arrange a water test to ascertain whether there was a residual water penetration problem. That suggestion had not been followed by the Owners Corporation.)

69 Whether or not the wait and see approach was the best one in all the circumstances, in fact no steps were taken after the three month period had elapsed to perform another moisture test. Mr Radford acknowledged this. His response was, “Well we may have left it with our Strata Manager. I can’t recall. It wasn’t done?” (T 158).

70 Between August 2005 and June 2006, Ms Trevallyn-Jones says there was very little rain and she did not recall seeing any dampness or water in the unit. However, in June 2006, water again penetrated Unit 7 after or during a period of some rain and Ms Trevallyn-Jones notified the Owners Corporation of this by letter. (She also put Sutech on notice on 8 June 2006 of a potential negligence claim in relation to its “wait and see” advice – Ex 1 p 221; Ex D p 115.)

71 In June 2006, Sutech inspected Unit 7 again and two further water penetration reports were prepared by Sutech, the first forwarded to the agent by Sutech by letter dated on 13 June 2006 (Ex 1 p 216), confirming further water penetration and recommending further waterproofing work, and the second, a month later on 13 July 2006 (Ex 1 p 229), forwarding a Contractor Brief for the remedial works.

72 On 14 June 2006, Ms Trevallyn-Jones wrote to the Owners Corporation notifying it that “with the recent heavy rains, water has ponded” on the floor slab, which it was said had not happened before (Ex D p 121). Also by letter dated 14 June 2006 (Ex D p 120), Ms Trevallyn-Jones, referring to advice at the Extraordinary General Meeting to “put a rug on it”, raised again the “unsafe” condition of the damaged parquetry. She asked the Owners Corporation to advise whether it considered the floor to be safe. (Mr Radford said in the witness box that he was unaware of this letter; did not have a copy of it and did not make a note of it (T 160).)

73 At about the same time, by letter dated 15 June 2006 (Ex 1 p 222), Mr Radford wrote to Ms Trevallyn-Jones stating that, pending the preparation of a scope of works by Sutech, the Executive Committee would like to check on the damage to the parquetry in her unit and “see if there is something that we can do in the interim, that is until the waterproofing and parquetry repairs can be undertaken, to cover the damage to parts of the parquetry”. Ms Trevallyn-Jones said that she did not receive this letter (which was addressed to Unit 7 and, according to Mr Radford, left under her door) until she inspected the Strata Records on 31 August 2006 and saw a reference to that letter (and the 13 June 2006 Sutech report). According to his letter dated 15 June 2006 (Ex 1 p 222), Mr Radford reported that “the advise [sic] from Sutech is that a rubber backed rug may be a reasonable way of covering those parts of the parquetry that are lifting to ensure you don’t “trip up.” As I discuss later, Ms Trevallyn-Jones said she did not receive this letter until some time later (in late August of that year).

74 On 3 July 2006, at the Annual General Meeting of the Owners Corporation, a resolution was passed to raise a special levy in the amount of $15,000 to meet part of the costs of the waterproofing repair to Unit 7. Mr Radford agreed that there was nothing then to stop the Owners Corporation going ahead to fix the problem. Mr Radford said the Owners Corporation asked the agent to ask Sutech to prepare a scope of work (or draw up tender documents) for the waterproofing work, which included replacement of the membrane. Those tender documents were drawn up by 13 July 2006.

75 Ms Trevallyn-Jones wrote again to the agent on 11 July 2006 (Ex D p 162) asking what work the Owners Corporation intended to take in relation to what she said was the dangerous condition of the floor. (In that regard, various photographs were tendered in evidence from which the buckling of the parquetry floor can be clearly seen – see eg Ex D pp 168-172.)

76 Ms Trevallyn-Jones says that she did not receive the 13 June 2006 Sutech report at the time it was issued and that she was not contacted by anyone from Sutech in relation to the inspection of the unit or the July 2006 specification (see Ex D p 174). Ms Trevallyn-Jones says she had to press the agent for a copy of the report (T 58).

77 In her letter dated 20 September 2006 (Ex 1 p 248; Ex D p 174), Ms Trevallyn-Jones advised the Owners Corporation that the damage to the parquetry floor “is now so extensive and severe that I believe I will need to vacate the unit. In this event I will seek recompense for expenses incurred in so doing”. Ms Trevallyn-Jones asserted that she had very real safety concerns not only about the serious trip hazard but also that the buckled parquetry had pulled an electrical conduit from the wall. In that letter, Ms Trevallyn-Jones referred to the request which Mr Radford had made in his letter of 15 June 2006 to inspect the unit and confirmed that she would be very happy to let the new Executive Committee check the water damage to the parquetry, stating:

I understand there is a new Executive Committee in place. I would, however, be very happy to let the new Executive Committee check the water damage to the parquetry, if they so wish, and see what they can do to ameliorate the situation.

78 It is not apparent whether that invitation was taken up by the Executive Committee. (I note that I read the word “however” as indicating the possibility that the request for inspection might not still have been “on foot”, so to speak, but that in any event Ms Trevallyn-Jones was prepared for the Executive Committee to inspect (not that she had declined to allow the old Executive Committee to inspect).)

79 Towards the end of 2006, Ms Trevallyn-Jones corresponded with the agent about emergency repairs which she proposed to effect to the parquetry floor. By facsimile transmission dated 28 November 2006 (Ex D p 126), Ms Trevallyn-Jones said she had sought quotes for emergency repairs and said, “If the arrangement is not acceptable to the Executive Committee, please advise whether the Owners Corporation will render the floor safe, or if it would prefer that the premises be vacated.”

80 Subsequently, by letter dated 14 December 2006 (Ex D p 177), Ms Trevallyn-Jones wrote to the agent as to the repairs which she said had been carried out, namely that the “repairs comprised replacement of parquetry blocks that had swollen due to exposure to water with blocks cut to fix the reduced width available. This means the flooring is no longer buckled up. However, the replacement blocks have not been glued down – they are only loosely in place – and they have not been sealed”.

· 2007

81 Notwithstanding that the Sutech tender documents were drawn up in July 2006, no one was engaged to do the work until March 2007. Mr Radford said this was because no one could get access to the unit to inspect for the tender (T 160). However, there is nothing before me to show that a request for access was in fact made (nor is there any evidence that the Owners Corporation was unable to retain contractors on the basis of the existing tender documents without any prior inspection of the unit). Mr Radford certainly did not recall writing to Ms Trevallyn-Jones to complain that there was a difficulty obtaining access (T 162). In the witness box, he simply said that Sutech had said they could not get anyone in there to call for tenders for the work (T 162). He accepted that he himself had written no letters from July 2006 to March 2007 complaining about a lack of access; that no one had written asking Ms Trevallyn-Jones for access to be available; and that he knew that (“on occasion”) when Ms Trevallyn-Jones was asked for access she had granted it (T 162). (Mr Radford also said that for part of that time he was not chairman, indicating a belief on his part that any responsibility he had for the resolution of the problem was at an end during that time.)

82 There was no evidence from Sutech to the effect that it had been unable to obtain access (or at all) and, as Mr Young succinctly put it, it beggars belief that Ms Trevallyn-Jones would be refusing access and at the same time insisting that the works be done.

83 An application (of the kind she had foreshadowed a year earlier) was ultimately made by Ms Trevallyn-Jones to the CTTT in January 2007 for orders to be made for the rectification of the water penetration problem. (Mr McGregor said he had inspected the unit at some time in 2006 and prepared a report for tender to the tribunal but a copy of that report was not before me.) On 16 January 2007, the Strata Schemes Adjudicator made such orders, which it then amended on 9 February 2007, requiring the Owners Corporation to inspect and rectify the water penetration problem in Unit 7 by 31 March 2007. I was informed that the Owners Corporation did not attend at the Tribunal (and this is consistent with what was reported in the reasons for decision handed down by the Tribunal – Ex D p 189). Certainly there is no evidence that the Owners Corporation raised with the Tribunal any issue as to lack of access.

84 On 7 February 2007, (Ex D p 187) Ms Trevallyn-Jones wrote to the Owners Corporation and advised that she wished to lease the unit from April 2007 and would need the work to be completed by then. When taken to this letter, Mr Radford pointed out that he was not the chairman of the Executive Committee then and said he did not have a record of being sent that letter (T 166).

85 On 12 March 2007, quotes were obtained by the Owners Corporation for the carrying out of the waterproofing works by a firm known as The Kraftsmen Property Maintenance Group (“the Kraftsmen”) (who, according to Ms Trevallyn-Jones’ earlier correspondence of 3 May 2005, had previously inspected the unit). However, it appears that the Kraftsmen did not inspect Unit 7 again until 26 April 2007, in effect a month after the time by which the Strata Schemes Adjudicator had ordered the work to be finished. (By letter dated 28 March 2007, the Owners Corporation had written to the Strata Schemes Adjudicator stating that it was unable to carry out the work by 31 March 2007 but would resolve the matter as early as possible. No application was made by the Owners Corporation to amend or to appeal from the orders.) Also in March 2007, it appears Ms Trevallyn-Jones sought quotes from Taylor Building Solutions and Remedial Building Services Australia Pty Limited in relation to repairs of the kind contemplated in the Sutech scope of works (Ex D pp 194-197).

86 In about March 2007 (thus, as a matter of timing, after Ms Trevallyn-Jones had already twice indicated an intention to rent out her unit), Ms Wickham moved into the adjacent unit.

87 Mr Radford became chairman of the Executive Committee again in April or May 2007. He accepted there was a need to deal with the water penetration problem quickly but in the witness box seemed to suggest that his, or the Owners Corporation’s, responsibility was met by instructing the agent “to get the work done and get moving on it as soon as they possibly could” (T 174).

88 In April 2007, a representative from the Kraftsmen inspected Unit 7 (T 78). On 9 May 2007, Ms Trevallyn-Jones wrote to the Owners Corporation (Ex D p 220) advising that she would be moving out of the unit on the weekend of 12 to 13 May 2007; complaining that the unit was unlettable; and indicating that she would be seeking compensation for lost rent from 14 May 2007 which she estimated at $450 per week. Ms Trevallyn-Jones requested the Owners Corporation “to ensure all rectification works are completed as quickly as possible to minimise the loss of rent”.

89 Ms Trevallyn-Jones says she vacated Unit 7 on 13 May 2007. I accept her evidence on this issue. There is nothing to suggest that she did not vacate on this date and it is not disputed that she handed over the keys of Unit 7 on or about that time to Mrs Robertson-Swann to enable the Owners Corporation to arrange access to Unit 7 for the remedial works to be carried out. (Mr Radford accepted there were no problems with access after that time.)

· Second tranche of rectification works – May-December 2007

90 Remedial work (in effect, the second tranche of waterproofing work) commenced on Unit 7 some time between 14 and 24 May 2007. An issue then arose as to whether the Kraftsmen was carrying out the works as specified in the Sutech scope of works. By letter dated 28 May 2007 (Ex D p 237), Ms Trevallyn-Jones set out in some detail what she believed to be the defects in the works or, perhaps more precisely, the areas in which she believed the works did not meet the Sutech scope of works. In particular, Ms Trevallyn-Jones advised the Owners Corporation that a liquid applied polyurethane membrane had been used on the unit balcony rather than a torch-on membrane as previously recommended by Mr MacGregor. Ms Trevallyn-Jones also advised in that letter as to what she considered to be the possible paths for the water entry into the unit.

91 Issue seems to have been taken by the Owners Corporation at this time as to whether the whole of the parquetry floor would be replaced or just the damaged parts (Ex 1 p 269), as to which Ms Trevallyn-Jones responded (Ex 1 p 275) that she had no objection to patching the floor, provided the replaced floor matched the original, but referring to earlier advice suggesting that patched repairs might be more expensive.

92 Ms Trevallyn-Jones says she queried with the Kraftsmen what works were being carried out and that, when the workmen appeared to her not to know, she wrote (by letters dated 4 June 2007 and 7 June 2007, Ex D p 247; Ex D p 250) to the Owners Corporation asking what works the Kraftsmen had actually been contracted to do and reporting on her observations. Ms Trevallyn-Jones says she had been verbally advised by the agent that the works were going to be done in accordance with the Sutech scope of works, but that, if so, then, to her observation, not much of that scope of works was being followed (T 76). Further correspondence ensued (see Ex D p 261).

93 On 18 June 2007, Ms Trevallyn-Jones visited the unit and discovered further water penetration. She informed the Owners Corporation of this by letter (Ex 1 p 300; Ex D p 267). Ms Trevallyn-Jones said that the water had penetrated the concrete slab and under the parquetry in the way it had the year before. She noted that “the selected polyurethane membrane did not appear to have been installed in accordance with the manufacturer’s recommendations”.

94 On 21 June 2007, Ms Trevallyn-Jones was advised that the work had been delayed due to “excessive amounts of rain” (Ex D p 277). (That work did not recommence until about November 2007 and then continued through most of December 2007.)

95 By that stage, the position of the Owners Corporation, at least insofar as Mr Radford seems to have understood it, was that the first step that then needed to be taken was that written confirmation be obtained from the Kraftsmen that the work had already been carried out by the Owners Corporation according to the Sutech scope of work. (As it turned out, it had not – as had been pointed out by Ms Trevallyn-Jones.)

96 It would seem from what Mr Radford said in the witness box, that Mr Radford, if not the Executive Committee as a whole, was by then somewhat at a loss as to how to resolve the question as to whether the work had been correctly done and, if not, what more work had to be done. While he at first denied that it had taken months from June 2007 to confirm the waterproofing works, Mr Radford then attributed the delay to Ms Trevallyn-Jones’ queries in relation to the works:

So we had to keep going to our strata agent, to the Kraftsmen getting them to confirm it had been done correctly

97 He said at (T 177):

Ms Trevallyn-Jones kept writing to us saying the work was totally unsatisfactory, she wasn’t happy with it and we were trying to appease her, which was very difficult.

98 In essence, it would seem that after Ms Trevallyn-Jones’ complaint that the Sutech scope of work had not been followed, the Owners Corporation/agent spent time up to at least July 2007 going back to the Kraftsmen to ask it to confirm in writing that work had been done according to the Sutech scope of works, rather than either proceeding on the basis that the necessary work had in fact been done or (as they later did) by referring to the matter to independent tradesmen to review (and if necessary complete) the rectification work.

99 By letter dated 25 June 2007, Ms Trevallyn-Jones wrote to the Owners Corporation strongly suggesting that a water penetration expert be engaged (Ex D p 283). She reported dampness in areas where it had not previously been observed.

100 By letter dated 3 July 2007, Ms Trevallyn-Jones was advised (Ex 1 p 310; Ex D p 299), that the Owners Corporation had acted upon her advice and had arranged for a “respected engineering company specialising in water penetration” (RHM Consultants Pty Limited) to advise on the water penetration problem into her (and other) units in the building and that the Owners Corporation would replace the entirety of the parquetry floor, but that this “will obviously only commence once the water penetration issues have been addressed”.

· July 2007 water test

101 On 7 July 2007, thus after the period of excessive rain noted by the Owners Corporation in its letter of 21 June 2007 and after Ms Trevallyn-Jones reported having observed dampness in the unit where she had not observed any before, Ms Trevallyn-Jones carried out her own test of the waterproofing to see if water would penetrate into the unit. This became quite a contentious issue in the proceedings. Ms Trevallyn-Jones described the test (at T 69-71). Mr Radford and Mrs Robertson-Swann gave evidence on their respective observations of the test. I consider later the dispute over this.

· RHM report

102 On 26 July 2007, RHM (Ex D p 326) recommended the re-waterproofing of the courtyards up to the cavity flashing in all the courtyards (ie, as I understand it in four units), including Ms Trevallyn-Jones’ Unit 7. It appears to have inspected at least Units 5, 6 and 7. This confirms to my mind the likelihood that the problems in Unit 7 were similar to those in other units and not unique to (or separately caused by individual actions by Ms Trevallyn-Jones in respect of) Ms Trevallyn-Jones’ unit. (Mr MacGregor in his evidence, consistent with the RHM recommendations, explained that the defect he had observed in 2004 was to do with the flashing.) Ms Trevallyn-Jones’ comment in the witness box on the (two page) RHM report was that it was very vague and needed more detail. She set out her detailed comments in a letter dated 20 August 2007 (Ex D pp 340-345). However, she denied that she had expressed dissatisfaction with the appointment of RHM or had a problem with it carrying out the works (T 71).

· Completion of second tranche of works

103 On 21 August 2007, Ms Trevallyn-Jones wrote to the Owners Corporation (Ex D p 358) raising her concern as to whether there had been compliance by the Kraftsmen with the Sutech scope of works. In the witness box, Ms Trevallyn-Jones explained that her concern was that money was being irresponsibly spent and that if the Kraftsmen had (as the agent had verbally advised Ms Trevallyn-Jones) been retained to carry out works in accordance with the Sutech scope of works, then they had not done so (T 76).

104 By letter dated 30 August 2007 (Ex D p 364), the agent confirmed that the Owners Corporation had appointed the Kraftsmen to carry out remedial work in accordance with the scope of works prepared by Sutech and advised that tenders were being issued for further work as per a new scope of works prepared by RHM Consultants.

105 By letter dated 12 September 2007 (Ex D p 381), Ms Trevallyn-Jones wrote to the Owners Corporation asking that the waterproofing works include provision for preventing cross-penetration between Unit 7 and the adjacent unit. Ms Trevallyn-Jones understood that there was (or was to be) an inspection by the Kraftsmen of the unit in September 2007. She had, by then, nominated as her representative for that purpose Mr Krikis. An issue then arose as to whether Mr Krikis had failed to attend an appointment arranged in September/October 2007. The Owners Corporation asserted he had failed to attend. Ms Trevallyn-Jones said she was unaware whether such an appointment had been missed. The correspondence sets out the conflicting assertions as to this issue, on which I cannot comment in the absence of any direct evidence from the Kraftsmen or Mr Krikis (Ex D p 386, p 392).

106 By letter apparently dated both 22/27 November 2007 (Ex 1 p 340; Ex D p 395) on the agent’s letterhead, (in the same format as those letters which appear previously to have been signed by Mr Radford and not in the format of the agent’s previous correspondence) the Executive Committee wrote to Ms Trevallyn-Jones acknowledging her letter of 20 November 2007 and said:

The Owners Corporation would also like to impress upon you the importance of safeguarding (during the period of the remedial work), any valuables you may have in the apartment and that all times you take steps to protect your possessions from any dust and dirt. The Owners Corporation would also like to repeat an earlier offer to fully [sic] clean your apartment of dust and dirt that may have been caused by the remedial work on completion of such work.

107 That letter pointed out that the Owners Corporation did not intend to provide any further specifications for the remedial work; believed it had done everything in its power to complete the remedial work “and that the work would have been completed many months back if you had not been so difficult to work with”. Remarkably, in my view, the letter also noted in relation to the flooring:

[Y]ou indicated many months back that you were happy to work with the company whose quote to replace the parquetry flooring the Owners Corporation accepted. In fact we are surprised that you have not already had the company remove the existing parquetry in preparation for laying the new parquetry.

108 Further remedial waterproofing work was ultimately carried out by the Kraftsmen to the common property areas of Unit 7 (after guidelines for access prepared by Ms Trevallyn-Jones were signed by the Kraftsmen on 30 November 2007), including the balcony and the balcony wall, over the period 17 to 19 December 2007.

109 By letter dated 20 December 2007, (Ex D p 435) Ms Trevallyn-Jones wrote to the Owners Corporation in relation to the works carried out by the Kraftsmen, observing that the work did not correspond with the Sutech scope of works, the recommendations of Moldovan & Associates or RHM Consultants.

· 2008 – second water test

110 In February 2008, Ms Trevallyn-Jones was told that all works in relation to water penetration had been completed and her keys were returned to her. Ms Trevallyn-Jones then apparently decided to confirm the efficacy of the works and again commissioned Mr MacGregor to inspect the unit.

111 On 11 February 2008, Mr MacGregor attended Unit 7 with Ms Trevallyn-Jones. He recommended, and conducted, a spray test which resulted in some water penetration to the unit. It was not suggested that the test was authorised by the Owners Corporation. Mr MacGregor said he sprayed water on the balcony at two minute intervals. This was described as a “spray test”, where water was sprayed on the wall, not a “flood test” where water sits as a pond. The drains were blocked during this test. Mr MacGregor removed some of the interior cement render on the corner of the wall adjacent to the balcony to see what it was. Ms Trevallyn-Jones disagreed with the proposition that the test did not duplicate normal weather circumstances (T 84). Mr MacGregor observed that water came through, near the sliding door and in the corner near the adjacent Unit wall, and that it came through an outlet for the air conditioner. He considered this to be a test consistent with what was required to be shown to meet Building Code of Australia standards.

112 On 12 February 2008 (Ex D p 472), lawyers acting for Ms Trevallyn-Jones advised of water penetration into Unit 7 during the water test carried out by Mr MacGregor, suggesting that in the circumstances the parquetry floor should not be re-laid until after the water leakage problem was rectified.

113 By letter dated 7 March 2008 (Ex D p 477), Ms Trevallyn-Jones’ solicitors again wrote stating that, notwithstanding their earlier letter, access would be provided to the unit by Ms Trevallyn-Jones even if the Owners Corporation decided to re-lay the parquetry floor without first fixing the water leak. Mr Radford’s evidence was that he was not aware of that letter and not aware that Ms Trevallyn-Jones had communicated in March 2008 that she was happy to provide access for such work as the Owners Corporation thought was required (T 182). It seems extraordinary that the Owners Corporation’s then lawyers would not have conveyed that information to their client, the Owners Corporation, or to its agent. However, Mr Radford’s position was that he was not aware that there had been a response to the request for access (T 182).

114 No steps were taken between February 2008 and at least May 2008 in relation to the parquetry floor because Mr Radford said, “We were waiting on a response from Ms Trevallyn-Jones to allow us access” (T 183). However, as noted above, that response had been sent on 7 March 2008. Unaware of that, Mr Radford says he wrote to his solicitors on 7 April 2008 (nearly two months after requesting access) to chase a response. Again, inexplicably, it seems the Owners Corporation’s solicitors did not advise the Owners Corporation of receipt of the 7 March 2008 letter.

115 These proceedings were commenced by the filing of a Statement of Claim on 14 April 2008.

116 On 5 May 2008, Mr MacGregor prepared a report, highlighting the need for further waterproofing. A copy of that report was forwarded to the Owners Corporation’s solicitors and rectification of the defects was sought.

· Third tranche of works – November 2008

117 It appears that it was not until October 2008 that access was again sought to Ms Trevallyn-Jones’ unit to carry out the final tranche of the waterproofing works.

118 On 3 October 2008, Ms Trevallyn-Jones provided Mr Radford with keys to the unit to allow the further work to be carried out. That work involved the removal of two courses of brickwork and re-flashing, removing of tiles, reproofing and re-laying tiles. This final tranche of waterproofing rectification work was concluded by November 2008.

119 Further water tests were carried out by Mr MacGregor on 20 November 2008 from which it appeared that no water had penetrated into Unit 7. Ms Trevallyn-Jones gave evidence that she observed Mr MacGregor spray water on the outside of the balcony wall; the balcony drain was taped up and a sheet of water was left in place for “an hour or two” and then removed. Ms Trevallyn-Jones did not observe any water penetration on that occasion.

· Parquetry – December 2008

120 On 1 December 2008, Advance Flooring commenced re-laying the parquetry floor. Mr Nicholas Cotton, the project manager from Advance Flooring, gave evidence by affidavit sworn 2 June 2009 in relation to the replacement of the flooring. His affidavit deposed to the laying of the new parquetry floor on 1 December 2008 and to the fact that it took two days to lay down the entire new floor and a further two or three days, 8 to 10 December 2008, to re-sand and re-seal the floor. He did not in this affidavit suggest that there had been any difficulty obtaining access to Unit 7 for the purposes of re-laying the floor.

· Completion of works and leasing of unit

121 On 15 December 2008, Ms Trevallyn-Jones was advised that the work was complete. The keys to the unit were returned to her on 8 January 2009.

122 On 15 January 2009, Ms Trevallyn-Jones, having inspected the unit, sent two letters to the Owners Corporation, one concerning the remedial work and the other complaining of damage to the unit and its contents.

123 On 27 January 2009, lawyers acting for the Owners Corporation wrote advising that all rectification works had been completed and the unit was ready for immediate reoccupation.

124 On 2 February 2009, Ms Trevallyn-Jones appointed real estate agents to let and manage the unit. On 11 February 2009, Raine & Horne, Newtown confirmed details of the tenancy agreement and the lease commenced on 21 February 2009.

Damages

125 The loss claimed by Ms Trevallyn-Jones relates in the main to loss of rental for the period from 13 May 2007 until 21 February 2009 – a period of 93 weeks. The unit was leased in February 2009 at the rent of $520 per week. Valuers advising the respective parties had previously estimated a rental of $500 per week if the repairs were fully effected. The claim for loss of rental is therefore made in the sum of $46,500. A claim is also made for damage to the unit and for items of Ms Trevallyn-Jones’ furniture, the cost of which, together with cleaning expenses, amounts to $4,713.60.

126 Ms Trevallyn-Jones also claims the sum of $3,784.20 for expert expenses incurred by her prior to 2008 (the remaining expert’s report being the subject of a claim for costs in the proceedings). These comprise the cost of a report prepared by Moldovan & Associates in July 2004 ($1,254.20 – Ex D p 87 tender bundle) and a report in 2005 ($2,530.00) apparently relied upon for the purposes of the CTTT application (Ex D p 184 tender bundle). Ms Trevallyn-Jones says that those invoices were submitted to the Owners Corporation but it refused to pay them. (There is no suggestion by the Owners Corporation that those invoices have in fact been paid by it.)

127 Accordingly, the quantum of the damage claims by Ms Trevallyn-Jones amounts to $54,997.80 plus interest, together with a claim for costs.

1. Was there a breach by the Owners Corporation?

Statutory duty

128 Section 62 of the Act provides as follows:

62 What are the duties of an owners corporation to maintain and repair property?

129 As noted earlier, the Owners Corporation does not dispute that the balcony floor, walls and parquetry floors of Unit 7 are common property. It is not suggested that any resolution was passed of the kind provided for under s 62(3).

130 In passing I note that there may be some ambiguity as to whether the adverb “properly” applies to one or both of the verbs in s 62(1), ie as to whether the sub-section should be read as:

An owners corporation must properly maintain and [must properly] keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.

An owners corporation must properly maintain and [must] keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.

131 I suspect that the second construction is the correct one, since the phrase “properly keep in a state of good repair” is one of which it is hard to make sense (insofar as there would be, implicit therein, a suggestion that there is an improper way in which one could keep common property in a state of good repair). In contrast, the concept of maintaining something properly is readily understood and such phraseology is commonly used. However, I doubt that anything ultimately turns on this.

132 It is contended by the Owners Corporation that s 62 does not pose “such a strict duty” that if (and as soon as) any common property requires repair or maintenance it follows necessarily that there is a breach of s 62 of the Act. To that extent it is asserted that the principle of law stated by Brereton J in Seiwa Australia Pty Limited v Owners SP 35042 [2006] NSWSC 157 is incorrect.

133 There, Brereton J said (at [3]-[6]):

There is no suggestion in this case that subsection (3) is applicable. It is subsection (1) that is relevant. Section 62(1) imposes on an owners corporation a duty to maintain, and keep in a state of good and serviceable repair, the common property. That duty is not one to use reasonable care to maintain and keep in good repair the common property, nor one to use best endeavours to do so, nor one to take reasonable steps to do so, but a strict duty to maintain and keep in repair.

The duty to maintain involves an obligation to keep the thing in proper order by acts of maintenance before it falls out of condition, in a state which enables it to serve the purpose for which it exists [ Hamilton v National Coal Board [1960] AC 633, 647 (Lord Keith of Avonholm); Haydon v Kent County Council [1978] QB 433, 464 (Shaw LJ); Ridis v Strata Plan 10308 [2005] NSWCA 246, [161]]. Thus the body corporate is obliged not only to attend to cases where there is a malfunction, but also to take preventative measures to ensure that there not be a malfunction [ Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Limited (1989) 18 NSWLR 33 (Young J); Ridis, [162]-[163]]. The duty extends to require remediation of defects in the original construction of the common property [ Proprietors Strata Plan No. 6522 v Furney [1976] 1 NSWLR 412, 416 (Needham J); Ridis [164]-[165]]. And it extends to oblige the owners corporation to do things which could not be for the benefit of the proprietors as a whole or even a majority of them [ Proprietors Strata Plan 159 v Blake (1986) CCH Strata Titles Cases ¶30-068 (Yeldham J); Ridis , [166]].

It follows that as soon as something in the common property is no longer operating effectively or at all, or has fallen into disrepair, there has been a breach of the s 62 duty [cf Ridis [177]]. Insofar as Ridis held that s 62 did not oblige an owners corporation to conduct or procure the conduct of an expert assessment of every possible source of danger in the common property, personal property vested in it, and fixtures and fittings comprised in the common property, that was in the context of a submission that by imposing the statutory duty to maintain and repair, s 62 had the ancillary effect of extending the common law duty of care of an owners corporation as an occupier of the common property to include rigorous duties of inspection. The Court of Appeal rejected the submission that s 62 expressly or implicitly resulted in the imposition of such a common law duty. But that is beside the point; in this case, unlike in Ridis , the plaintiff relies on a statutory cause of action said to arise on s 62, rather than a duty of care said to arise consequentially from s 62 [cf Ridis , [87]-[88]].

Strata Titles Act

Lubrano v Proprietors Strata Plan

No 4038

Jaklyn v Proprietors Strata Plan No 2795

Proprietors Strata 464 v Oborn

Proprietors Strata Plan 159 v Blake,

Proprietors Strata Plan

30234 v Margiz Pty Ltd

Lyn v Owners Strata Plan No 50276

322 There is no direct evidence as to what the Owners Corporation’s response would have been to a request of this kind. Some of the early correspondence (noted earlier in these reasons) seemed to reject any repairs to the property pending rectification of the water problem but this appears to have referred only to repairs of a final nature.

323 Given that there was apparently no demur to the notifications in March 2002 and July 2003 as to Ms Trevallyn-Jones having then effected some basic repairs, it may be that the Owners Corporation would have had no objection thereto.

324 That said, I do not know that it could be inferred that a similar stance would have been taken by the Owners Corporation in 2007 had Ms Trevallyn-Jones sought permission (as the Owners Corporation seemed to suggest she should have done) to effect similar repairs of a basic or temporary nature (without which the Owners Corporation’s valuer considers that the unit could not have been leased); given the manner in which the Owners Corporation seems by then to have been responding to other requests (such as the request for information as to the specification of works in June 2007).

325 Ms Trevallyn-Jones had clearly put the Owners Corporation on notice of her intentions to lease out the unit and of the time frame within which she wished to do so. She had alerted the Owners Corporation to the claim for loss of rental she would make if unable to do so. Had the Owners Corporation wished to take steps to minimise the loss by effecting its own basic repairs or seeking to reach some other temporary arrangement it could have done so.

326 On the issue of temporary repairs, therefore, it would seem that the Owners Corporation made (or was in the position to make, had it turned its collective mind to the issue) a commercial decision that the appropriate course to adopt was not to suggest or proceed with any temporary repairs at that stage to minimise a claim for lost rental (of which it was clearly on notice) but rather to press for confirmation that the rectification works had finally been satisfactorily completed and then to carry out the complete replacement of the parquetry flooring (apparently, in what turned out to be the ultimately forlorn hope, that by so doing Ms Trevallyn-Jones would be sufficiently appeased to bring the long running dispute to an end). Whatever the case in that regard, I do not think Ms Trevallyn-Jones’ conduct evidences a failure reasonably to mitigate her loss in this regard.

327 The quantum of the claim for loss of rental seems reasonable having regard to the evidence of Mr Powell and Mr Craig.

328 There was also a suggestion that Ms Trevallyn-Jones had failed to act reasonably in protecting her furniture from damage or dust as a result of the works.

329 The Owners Corporation seems to accept that it is liable for cleaning expenses (or at least says it has always been willing to pay for reasonable cleaning expenses) but denies that any of Ms Trevallyn-Jones’ goods were damaged by it or that it should be responsible for any minor damage done by tradesmen.

330 Insofar as the claim for damage to the contents of the unit (in particular, a cut to the fabric of the lounge and damage to the timber corner of a bookcase) is concerned, the Owners Corporation relied upon the letter dated 22 November 2007 in which Ms Trevallyn-Jones was advised that it was her responsibility to safeguard her property. It was suggested that she could have moved the furniture.

331 Ms Trevallyn-Jones’ evidence was that prior to the works in 2008 she had removed all items from the lower floor of the unit except the lounge (which she said was too heavy for her to lift upstairs, even with the assistance of a friend) and a refrigerator. Ms Trevallyn-Jones’ affidavit, affirmed on 7 April 2009, set out her observations of the way in which her possessions had been moved during the course of the works in 2008. Consistent with this, Mr Radford said (para 46 of his affidavit) that he and his partner had together moved the lounge into the bathroom. He said he had not noticed any damage to the lounge. (I note that I do not understand it to be suggested that in so doing Mr Radford or his partner had damaged the cover to the lounge.)

332 I see no reason to disbelieve Ms Trevallyn-Jones’ evidence that the cut was not present (or the bookcase timber not crushed) when she handed over the keys to the unit. It is not as if Ms Trevallyn-Jones made indiscriminate claims of great magnitude in respect of damage to her goods.

333 (In this regard, there was complaint made of a scratch to a red lacquer Chinese chest but this was not pressed. Similarly, I note that, although, by letter dated 18 December 2008, Ms Trevallyn-Jones had complained as to the colour of the new parquetry floor (and asserted that it had not been completed on a like for like colour and detailing with the original floor), this complaint was not pressed. Similarly, although, by letter dated 15 January 2009, Ms Trevallyn-Jones had made complaint in relation to the new parquetry floor and trim detail (and requested that the Owners Corporation rectify the parquetry flooring so that the detailing at the base of the columns and stair stringers matched with that of the original floor) a claim asserted in that letter was also not pressed.)

334 Ms Trevallyn-Jones seems to have taken careful note of her possessions and I accept her evidence in this regard. The inference I would draw is that the damage was sustained during the course of the rectification works.

335 Ms Trevallyn-Jones obtained a quotation for a fabric cover to replace the damaged cover of the lounge. A copy of that quotation was annexed to affidavit and marked “R”. It was suggested that a full replacement of the cover was not necessary. However, insofar as the photographs tendered show a cut in the fabric in the middle of the couch it seems to me quite reasonable for the cover to be repaired. It was also asserted that Ms Trevallyn-Jones could simply have re-painted the damaged bookcase, (which Mr Radford deposed looked “old” and “not in good condition”) although her evidence was that it had been crushed in part (T 89).

336 It seems to me that, the work being carried out by the tradesmen was work on behalf of the Owners Corporation, if damage was occasioned to Ms Trevallyn-Jones’ possessions or personal property (as I accept it was) during the course of that work then, in the absence of anything to explain the damage, it is reasonable to conclude that there was not proper care exhibited when the works were performed and that this is loss and damage for which the Owners Corporation should be responsible. It does not seem to me to be reasonable to suggest that simply covering the furniture would necessarily have avoided the actual damage sustained to either the lounge or the bookcase. Insofar as Ms Trevallyn-Jones was advised to take steps to protect her furniture I accept that she did what she could. (I note that in her earlier correspondence she had demanded that the Owners Corporation pay the costs of physically relocating and storing her furniture during the works. She did not seem to have pursued that demand in 2008 prior to the replacement of the parquetry.)

337 Annexure U to Ms Trevallyn-Jones’ affidavit of 7 April 2009 detailed the amounts claimed by way of repairs and cleaning costs. Those seem to me to be quite reasonable.

Contributory Negligence

338 In passing, I note that there were assertions of fact in paragraph 12 of the Defence which might have supported a claim of contributory negligence on the part of Ms Trevallyn-Jones. I raised expressly with Counsel whether any such defence was sought to be raised and was informed that it was not. (On the evidence before me it would seem hard to see facts which would sustain such a defence even if it were available as a matter of principle in such a case. Ms Trevallyn-Jones seems to have taken a very careful view of the steps necessary to protect against further damage in circumstances where her concerns as to the efficacy of the first two tranches of works proved to be well founded.)

339 I therefore do not need to consider the manner and extent to which a claim for contributory negligence may apply to a breach of s 62 of the Act (ie. whether it may act as a complete defence and/or as allowing an apportionment of damages). While Brereton J in Seiwa stated (at [21]) that “contributory negligence is no defence to an action for breach of statutory duty”, if that issue had arisen in this case for determination it would have been necessary to consider the interaction between a claim for breach of statutory duty, contributory negligence and (potentially) the Civil Liability Act 2002. I note that in Booksan v Wehbe [2006] NSWCA 3, Ipp JA, with whom Giles and Tobias JJA agreed, found that Part 1A of the Civil Liability Act applied to a claim for damages in relation to a breach of statutory duty, which was, in substance, a claim for damages for harm resulting from negligence.

340 In future cases such as this it may well be that this issue needs to be re-visited. With that in mind I make the following comments.

341 The High Court in Piro v W Foster & Co Ltd (1943) 68 CLR 313 found that contributory negligence is a complete defence to an action for breach of statutory duty. In so doing, the High Court reversed the position it had previously adopted in Bourke v Butterfield and Lewis Limited (1926) 38 CLR 354 and preferred the authority of the House of Lords in Caswell v Powell Duffryn Associated Collieries Limited [1940] AC 152 and Lewis v Denye [1940] AC 921, in which cases Bourke v Butterfield and Lewis Limited had been considered and disapproved. (While Piro and many of the earlier authorities deal with absolute duties to take precautions against personal injury, the principles relating to contributory negligence in the context of breach of statutory have not been treated as being limited to such cases.)

342 The effect of the decision in Piro was ameliorated to an extent by the passage of the Statutory Duties (Contributory Negligence) Act 1945 (the 1945 Act), s 2(1) of which provided:

Contributory negligence on the part of a person who has sustained personal injury shall not be a defence to an action for damages for that injury founded on a breach of a statutory duty imposed on the defendant for the benefit of a class of persons of which the person so injured was a member at the time the injury was sustained.

343 In 1965, the Law Reform (Miscellaneous Provisions) Act (the 1965 Act) was passed. Section 10 of the 1965 Act provided:

Where any person suffers damage as a result partly of his own fault and partly of the fault of any other person or persons a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimants share in the responsibility for the damage.

344 “Fault” was defined in s 9 to mean:

Negligence or other act or omission which gives rise to a liability in tort or would apart from this part give rise to the defence of contributory negligence but does not mean or include a breach of statutory duty.

345 Section 7 of the 1965 Act provided that:

Nothing in this Part shall apply to any action for damages founded upon a breach of statutory duty imposed on a defendant. Nothing in this Part shall affect the provisions and operation of the Statutory Duties (Contributory Negligence) Act 1945.

346 The 1965 Act did not, when passed, alter the position in relation to breach of statutory duty and, accordingly, contributory negligence remained a complete defence in respect of claims founded on breach of statutory duty other than those for damages for personal injury. In AWA Limited v Daniels (1992) 9 ACSR 383 at 386, Rogers CJ in Comm D found this to be a “surprising result”, and noted that it had been “received wisdom that, rather than contributory negligence being an absolute defence, it could not be relied on at all in case of a breach of statutory duty”. His Honour felt “little doubt that, given the opportunity… the High Court could be persuaded to return to the view it originally held in Bourke”, but found that he was bound to follow Piro.

347 The 1965 Act was amended by the Law Reform (Miscellaneous Provisions) Amendment Act 2000, which commenced on 22 January 2001. The entirety of Part 3 of the 1965 Act was replaced by a new Part 3 which included the following provisions:

7 Application of Part to breach of statutory duty

Statutory Duties (Contributory Negligence) Act 1945

8 Definitions

wrong

9 Apportionment of liability in cases of contributory negligence

claimant

contributory negligence

348 These amendments were introduced in response to the decision of the High Court in Astley v Austrust Limited (1999) 197 CLR 1 (see Explanatory Notes and Hansard, Legislative Council, 7 December 2000). In that case, the High Court held that the South Australian apportionment legislation did not extend to breaches of contract and, accordingly, where a party sued concurrently in tort and contract for breach of a duty of care, that party might recover the full amount of its damages on the contractual claim notwithstanding the fact that it had been guilty of contributory negligence.

349 Assuming that a breach of statutory duty can properly be described as an act or omission giving rise to a liability in tort (eg Stuart v Kirland-Veenstra (2009) 254 ALR 432 at [50] per French CJ; ACQ v Cook at [169]; Union Shipping New Zealand Limited v Morgan (2002) 54 NSWLR 690 at [109] per Heydon JA; Pyrenees Shire Council v Day (1998) 192 CLR 330 at [123] per Gummow J; Limitation Act 1969 s 14(1)(b); cf Darling Island Stevedoring and Lighterage Company Limited v Long (1956) 97 CLR 36 at 56 per Fullagar J) such a breach would fall within the definition of “wrong” in s 8 of the 1965 Act.

350 The Civil Liability Amendment (Personal Responsibility) Act 2002 repealed the 1945 Act and s 7 of the 1965 Act. In Booksan, Ipp JA stated (at [162]) that:

Piro v W Foster and Co Ltd

351 Though, as was noted by Campbell JA, with whom Beazley and Giles JJA agreed, in ACQ v Cook [2008] NSWCA 161 at [169]:

However, as reinstated it was subject to the provisions of the 1965 Act, under which contributory negligence was no longer a total defence, but led to apportionment.

352 While the rule in Piro, insofar as it applied to actions for damages not in relation to personal injury, had never been abrogated, the combined effect of the Law Reform (Miscellaneous Provisions) Amendment Act 2000 and the Civil Liability Amendment (Personal Responsibility) Act 2002 was to bring those actions within the ambit of the 1965 Act and so to avoid the “surprising result” referred to in AWA v Daniels. (Though, if, as Rogers CJ in Comm D considered possible, the High Court were persuaded to return to the view it originally held in Bourke, breaches of statutory duty would fall out of the definition of “wrong” in s 8 of the 1965 Act.)

353 In Booksan, Ipp JA went on to state that claims for breach of statutory duty which were, in substance, claims for damages for harm resulting from negligence, met the test set out in s 5A of the Civil Liability Act, and so attracted the application of Part 1A of that Act.

354 Therefore, the extent to which Part 1A applies (if at all) to claims for damages in relation to harm arising from a breach of an absolute statutory duty, where such harm may, but need not, result from negligence, is, perhaps, unclear.

355 It would seem that there are at least three possibilities. First, that Part 1A applies to claims for damages in relation to all breaches of absolute statutory duties; secondly, that Part 1A applies only in relation to those claims for damages in relation to breaches of statutory duties, where the breach can be characterised, in substance, as amounting to negligence; and thirdly, that Part 1A applies to no claims for damages in relation to breaches of absolute statutory duties.

356 The first possibility would in effect abolish absolute statutory duties for the purposes of common law claims for damages. Part 1A includes provisions dealing with foreseeability and reasonableness inconsistent with an “absolute” duty. This suggests a wide-ranging operation for the Civil Liability Act, which would have a significant effect upon a vast number of other statutes. For example, it would have the indirect effect of importing considerations of reasonableness into the present case which, for the reasons given above, are not to be found in the express words of s 62.

357 The second possibility is in some ways circular and self-fulfilling. It would require a line to be drawn between those breaches of duty which amount, in substance, to negligence and those which do not. Determining whether a breach is, in substance, negligent will largely mirror a determination of whether liability is made out under Part 1A. It is circular and self-fulfilling in that Part 1A will only (or, at least, almost always) apply to those cases in which liability under Part 1A will necessarily be established. Further, there seems no logic to a result where non-blameworthy breaches of absolute duties may avoid the operation of the Civil Liability Act and, so, the restrictions upon liability and damages contained within it, whereas blameworthy (in the sense of being, in substance, negligent) breaches of absolute duties will be subject to the Civil Liability Act.

358 The third possibility is perhaps the least unsatisfactory, but still requires that a line be drawn within the category of statutory duties (the breach of which gives rise to private actions for damages) between those duties which, though they may be expressed in positive terms, are, in essence, prohibitions of negligent behaviour, and those duties which are more “absolute” than that. There is a continuum of statutory duties running from absolute duties to those which merely require reasonable steps to be taken. It is hard to see how or where a line would be drawn.

359 If any of those possibilities were correct, and if the Owners Corporation were right in its construction of the statutory duty imposed by s 62, then it is quite probable that Part 1A would have applied to the present case. However, for the reasons given above, I consider that a plain reading of the provision leads to the conclusion that there is an absolute duty. Piro broadly supports this conclusion.

360 In any event, as the Civil Liability Act was not raised by Counsel and a defence based on contributory negligence expressly eschewed, it is not necessary for me to attempt to resolve these issues. I simply note that to do so, in an appropriate case, may well require consideration of the precise juridical nature of the claim for breach of statutory duty. That was not the subject of argument before me as the availability of a private right of action for breach of s 62 was not in issue in these proceedings.

Conclusion

361 I find for the plaintiff. Insofar as it is said there is no need for declaratory relief I can see there may be some utility in the declarations if future issues of this kind were to arise in relation to the Strata Plan and therefore I propose to make the declarations sought.

362 I do not consider that Ms Trevallyn-Jones, as a unitholder, should bear any portion of the Owners Corporation’s costs of the proceedings or the damages costs or interest, which it is ordered to pay in these proceedings.

363 Accordingly, I propose to make the following orders:

1. A declaration that the defendant is obliged properly to maintain and keep in a state of good and serviceable repair the wall between the lower balcony of Lot 7 in Strata Plan No 50358 and the interior of Lot 7 so that water does not penetrate into the said interior.

2. A declaration that the defendant is obliged properly to maintain and keep in a state of good and serviceable repair the wall between Lots 6 and 7 in Strata Plan No 50358 so that water does not penetrate into the interior of Lot 7.

3. A declaration that the defendant is obliged properly to maintain and keep in a state of good and serviceable repair the parquetry floor in the interior to Lot 7 in Strata Plan 50358.

4. Damages for breach of statutory duty in the sum of $54,997.80.

5. Interest pursuant to s 100 of the Civil Procedure Act 2005.

6. Costs.

7. An order pursuant to s 229 of the Strata Schemes Management Act 1996 that the damages or costs payable by the defendant pursuant to any order in these proceedings (and the interest thereon) must be paid from contributions levied only in relation to lots in Strata Plan No 50358 other than Lot 7.

364 I will hear any submissions as to the form of the orders on costs.

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Citations

Trevallyn-Jones v Owners Strata Plan No 50358 [2009] NSWSC 694

Most Recent Citation

DWORAKOWSKI and THE OWNERS OF 63 TEMPLE STREET VICTORIA PARK STRATA PLAN 26070 [2020] WASAT 45

Cases Citing This Decision

15

Vickery v The Owners Strata Plan 80412 [2020] NSWCA 284

The Owners Strata Plan 50276 v Thoo [2013] NSWCA 270

Smith v Owners - Strata Plan No. 3004 [2022] NSWSC 1599

Cases Cited

12

Statutory Material Cited

8

Wood v The Commonwealth of Australia [2006] NSWSC 157

Ridis v Strata Plan 10308 [2005] NSWCA 246

Ahluwalia v Robinson [2003] NSWCA 175

CITATION:	Trevallyn-Jones v Owners Strata Plan No 50358 [2009] NSWSC 694
HEARING DATE(S):	22, 23, 24 and 26 June 2009
JUDGMENT DATE :	23 July 2009
JURISDICTION:	Equity Division
JUDGMENT OF:	Ward J
DECISION:	Judgment for the plaintiff.
CATCHWORDS:	REAL PROPERTY – strata title – management and control – body corporate: powers, duties and liabilities – duty under s 62(1) of Strata Schemes Management Act 1996 properly to maintain and keep in a state of good and serviceable repair the common property – whether duty strict – whether owners corporation breached duty – whether plaintiff caused or contributed to own loss or is estopped from asserting loss – whether plaintiff failed to mitigate loss – held that duty strict – owners corporation breached duty – plaintiff did not cause or contribute to loss and not estopped from asserting loss – plaintiff did not fail to mitigate loss.
LEGISLATION CITED:	Civil Liability Act 2002 Civil Liability Amendment (Personal Responsibility) Act 2002 Law Reform (Miscellaneous Provisions) Act 1965 Law Reform (Miscellaneous Provisions) Amendment Act 2000 Limitation Act 1969 Statutory Duties (Contributory Negligence) Act 1945 Strata Schemes Management Act 1996 Strata Titles Act 1973
CATEGORY:	Principal judgment
CASES CITED:	ACQ v Cook [2008] NSWCA 161 Astley v Austrust Limited (1999) 197 CLR AWA Limited v Daniels (1992) 9 ACSR 383 Booksan v Wehbe [2006] NSWCA 3 Bourke v Butterfield and Lewis Limited (1926) 38 CLR 354 Caswell v Powell Duffryn Associated Collieries Limited [1940] AC 152 Darling Island Stevedoring and Lighterage Company Limited v Long (1956) 97 CLR 36 Lewis v Denye [1940] AC 921 Lubrano v Proprietors Strata Plan 4038 (1993) 6 BPR 13,308 Margiz Pty Limited v Proprietors Strata Plan No 30234 (1993) 30 NSWLR 364 Munce v Vinadex [1974] 2 NSWLR 235 Payzu Limited v Saunders [1919] 2 KB 581 Piro v W Foster & Co Ltd (1943) 68 CLR 313 Pyrenees Shire Council v Day (1998) 192 CLR 330 Ridis v Strata Plan 10308 (2005) 63 NSWLR 4 Seiwa Australia Pty Limited v Owners SP 35042 [2006] NSWSC 157 Stuart v Kirland-Veenstra (2009) 254 ALR 432 Union Shipping New Zealand Limited v Morgan (2002) 54 NSWLR 690
PARTIES:	Meredith Trevallyn-Jones (Plaintiff) Owners of Strata Plan No 50358 (Defendant)
FILE NUMBER(S):	SC 2308 of 2008
COUNSEL:	M W Young (Plaintiff) S B Dixon (Defendant)
SOLICITORS:	Dixon Holmes du Pont (Plaintiff) McCulloch and Buggy (Defendant)