Trevallyn-Jones v Owners Strata Plan No 50358

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.

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.

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.

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.

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).

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. (d) Carrying out “testing” of the nature which was unlikely to be experienced in the normal course of events and which resulted in exacerbation of problems of moisture penetration.”

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

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). 2. If there was a breach by the Owners Corporation, what damages, if any, were sustained by Ms Trevallyn-Jones by reason of any such breach (which raises questions as to whether Ms Trevallyn-Jones’ own conduct caused or contributed to the loss claimed and/or whether she is estopped from asserting such loss and/or whether she failed to mitigate her loss). Summary

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

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.)

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

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.

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).

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).

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.

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).

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.)

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).

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).

(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”.)

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).

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.

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).

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.

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.

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).

Turning then to the chronology of events, I note as follows. · 2002-2003

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.

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.

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”.

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).

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).

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

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.

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).

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.

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).

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.

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.

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”.

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).

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).

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).

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).

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.)

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.

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.

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.

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.

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.

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

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).

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.

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”.

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.

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.”

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. and Ms Trevallyn-Jones provided a range of dates in May which would be suitable for her. Ms Trevallyn-Jones also explained the basis for her view that the Act Now waterproofing work was unlikely to resolve the lower balcony problem, by reference to the opinions of the five sets of professionals who she said had inspected the unit as at that time.

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”.

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.

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).

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

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.

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).

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).

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).

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.

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

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.)

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).

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.)

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.

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).)

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).

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.

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.)

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).

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.

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).)

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.”

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

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.)

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.

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.

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).

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).

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.

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).

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”.

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

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.

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.

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).

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”.

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.)

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.)

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: No it wasn’t [months]. [Then he corrected that response and said] It was months because Ms Trevallyn-Jones kept querying the work saying it had been done wrong. We kept getting letters saying the wrong membrane had been put down and she was totally dissatisfied with the work. So we had to keep going to our strata agent, to the Kraftsmen getting them to confirm it had been done correctly [which, as it transpired it had not] (T 176). (My emphasis)

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.

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.

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.

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

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

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

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).

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.

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).

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.

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.

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.

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

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.

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.

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.

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).

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.

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

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

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.

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.

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

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

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.

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.

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.

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

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.

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.)

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

Section 62 of the Act provides as follows: 62 What are the duties of an owners corporation to maintain and repair property? (1) An owners corporation must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation. (2) An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation. (3) This clause does not apply to a particular item of property if the owners corporation determines by special resolution that: (a) it is inappropriate to maintain, renew, replace or repair the property, and (b) its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.

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).

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. or as: 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.

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.

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.

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]]. The duty of an owners corporation under s 62 is owed to each lot owner, and its breach gives rise to a private cause of action under which damages may be awarded to a lot owner for breach of statutory duty. This conclusion was reached by Young J, as his Honour the Chief Judge then was, in respect of the predecessor of s 62, namely Strata Titles Act 1973, s 68, in Lubrano v Proprietors Strata Plan No 4038 (1993) 6 BPR 97,457, at 13,310-13,311, upon a thorough consideration of earlier authorities to like effect [ Jaklyn v Proprietors Strata Plan No 2795 [1975] 1 NSWLR 15, 24 (Holland J); Proprietors Strata 464 v Oborn (1975) 1 BPR 9623, 9624 (Holland J); Proprietors Strata Plan 159 v Blake, 50,654 (Yeldham J); Proprietors Strata Plan 30234 v Margiz Pty Ltd (NSWSC, Brownie J, 30 June 1993). Gzell J has since followed it in the context of the 1996 Act [ Lyn v Owners Strata Plan No 50276 [2004] NSWSC 88, [90]]. (My emphasis)

In Seiwa the breach of the statutory duty related to circumstances (not dissimilar to the present case) in which there had been water penetration to a unit due to the failure of a membrane. Damages were awarded for loss of rent and a mandatory injunction was issued to require the Owners Corporation to perform the waterproofing work. Brereton J applied the decision of Young J (as his Honour then was) in Lubrano v Proprietors Strata Plan 4038 (1993) 6 BPR 13,308 to the effect that breach of the statutory duty of repair in s 68 of the Strata Titles Act 1973 (the predecessor to s 62) sounds in damages, an individual unit owner having a private cause of action to enforce a statutory duty imposed for its benefit and protection. The Owners Corporation did not dispute that a private right to damages could arise by reason of a breach of s 62.

The Owners Corporation, however, says that insofar as the duty under s 62 is a duty “properly” to maintain and keep in good and serviceable repair the common property, an element of reasonableness is imported into any examination of the scope of the duty. It was submitted that an interpretation of strict liability would place an onerous burden on the Owners Corporation in the situation where any defect, whether latent or recently discovered, or any damage caused by the actions of third parties despite the Owners Corporation carrying out reasonable attempts to effect repair, would be a breach which permitted an action for damages. (In this regard, a similar argument in the context of the position if damage were to be caused by the unitholder was put to Young J in Lubrano and was rejected by his Honour, who noted that in those circumstances there might be other defences or causes of action available to the Owners Corporation.)

Mr Dixon submitted that the obligation is absolute “in the sense that it requires action, things to be done” but that there is then imported into what has to be done, an element of reasonableness. I do not see where such a qualification is to be read into the legislative provision.

The Owners Corporation relies heavily upon the observations of McColl JA in Ridis v Strata Plan 10308 (2005) 63 NSWLR 449 in which her Honour considered the obligation under s 62 in the context (as Brereton J noted in Seiwa ) , of a submission that s 62 gave rise to or informed a common law duty of care. It was submitted by Mr Dixon that the obligations under s 62 were no greater than a common law duty of care to act reasonably and that in Ridis it was held that s 62 imposed only an obligation on the Owners Corporation to do things and to act upon and effect remedies, not immediately to be responsible for the consequences of any defect that becomes apparent.

The Owners Corporation therefore submitted that any analysis of the alleged s 62 breach required an assessment of the whole of the facts and a finding as to whether or not the Owners Corporation had made all reasonable attempts to carry out the works that were required. The scope of any duty, it was said, would not be strict but would accord with a duty to act reasonably. Reference was made to the observations made by Powell J in Margiz Pty Limited v Proprietors Strata Plan No 30234 (1993) 30 NSWLR 364 at 372 (in relation to the previous strata legislation) that: I regard such provisions as those contained in s 68 as carrying with them an implied grant to the relevant body corporate of power to do all things reasonably necessary to enable the relevant body corporate to perform the several duties cast upon it. That observation, however, goes to the scope of the implied power to act, rather than to the scope of the duty on the Owners Corporation.

In Ridis , as noted by Brereton J in Seiwa , the Court of Appeal considered s 62 in a different context because there there was, no claim for breach of the statutory duty in s 62. The question was whether or not the Owners Corporation had a duty of care at common law (albeit one informed by s 62 of the Act) to exercise reasonable skill and care with a view to achieving the requirements of the section which would involve having in place a system for monitoring the maintenance and state of repair of the common property having particular regard to safety issues associated with maintenance and repair.

While their Honours in Ridis considered that a common law duty of care of some kind existed, the majority (Hodgson and McColl JJA, Tobias JA dissenting) held that the duty did not impose an obligation to obtain an assessment of the premises by specialist experts to ascertain whether any of the materials of which the common property were constructed could be made safer.

Hodgson JA noted that the resolution of the appeal turned on the effect of s 62 of the Act on the general obligation of the occupier of property to inspect and remove dangers or defects in the property of which it was aware or ought to be aware. His Honour was of the same view as Brereton J as to the absolute nature of the obligation imposed by s 62(1) (at 452 [5]): The obligation under subs (1) and subs (2) of s 62 is not merely to exercise reasonable skill and care with a view to achieving the requirements of those subsections: the obligation is absolute. ( My emphasis)

However, the Owners Corporation places reliance on the fact that Hodgson JA went on to say: In my opinion, that means that an owners corporation, acting reasonably, should have a system in place for monitoring the maintenance and state of repair of the common property; and in my opinion, the terms of subs (3) mean that this system should be such that particular regard be had to safety issues associated with the maintenance and state of repair of the common property.

What his Honour did not say, however, is that s 62 itself imposes a duty on the Owners Corporation to have such a system in place. What his Honour seems there to be addressing is whether any duty of care of the Owners Corporation at common law would extend to the taking of steps in order to be in a position to satisfy the statutory obligation.

Mr Young submitted that Hodgson JA in Ridis , when referring to the Owners Corporation “acting reasonably”, meant acting in accordance with its statutory duty (not that all that was required to satisfy the statutory duty was met by applying a reasonable man test). In the context of Ridis , where what was in issue was whether the statutory obligation informed the content of a duty of care owed separately from the statutory duty, I consider this reading of Hodgson JA’s words (following on, as they do, from his very clear opinion that the obligation is absolute) to be correct.

Tobias JA similarly addressed the question as to the obligation imposed under s 62. He said (at 459 [49] – 460 [52]): … at first blush I considered that the duties the subject of subs (1) and subs (2) of s 62, although framed in absolute terms, must have only imposed the duty if the common property required repair on the one hand or its fixtures or fittings needed renewal or replacement on the other in the sense that the relevant item was broken or patently defective. Upon reflection no such qualification as a matter of statutory construction is justified in view of the provisions of s 62(3) which did not appear in any of the predecessors of the section. However, this said, it must be the case that the obligation to renew or replace only arises where such action is “appropriate” as contrasted with a special resolution that renewal or replacement is “inappropriate” as so determined by the owners corporation pursuant to s 62(3)(a) subject to the strictures of s 62(3)(b). But what is “appropriate” involves, in my opinion, a broader concept than what is necessary or needed. In other words, it would be “appropriate” to replace a fixture or fitting even though it was neither broken nor patently defective but which nevertheless, presented a reasonably foreseeable safety risk. Where that risk was, for instance, due to the antiquity of the installation of the fixture or fitting in question so that as a matter of probability it did not conform or comply with current safety standards which, if adopted, would avoid that risk, then in my opinion s 62(2) required its replacement. This approach is consistent with that of Gzell J in Lin v Owners — Strata Plan No 50276 (2004) 11 BPR 21,463 at 21,468 [47]–[48] where his Honour rejected a submission that the obligation to renew or replace in s 62(2) was limited to renewing or replacing parts of the common property that were no longer in a state of good and serviceable repair. I would also refer to the decision of Yeldham J in Proprietors of Strata Plan 159 v Blake (1986) NSW Strata Title Cases ¶30-068 (50,650). In that case a body corporate at a general meeting resolved that it would not repair an air- conditioning system which formed part of the common property but served only the ground floor lots. The air conditioner had reached the end of its effective life and would have been extremely expensive to repair. Yeldham J held that, when the general scheme of the Strata Titles Act was considered, as a matter of construction the requirements of s 68(1)(b) and s 68(1)(c) were mandatory with the consequence that the body corporate could not decline to comply with them. The duty imposed upon the body corporate was absolute subject only to the maintenance or replacement of the item of common property being necessary. I have already commented upon the absence from s 62(2) of the Act of the qualifying words “where necessary” which appear in s 68(1)(c) of the Strata Titles Act . (My emphasis)

His Honour concluded (at 461 [55]): It follows in my opinion, that the obligations imposed upon the respondent by s 62(1) and s 62 (2) of the Act must be taken to have informed the standard of care reasonably required of it as an owners corporation with respect to its management and control of the use of the common property: s 61(1)(a). To discharge that standard of care [ie in respect of the common law duty of care] the respondent was required to inspect from time to time the common property including its fixtures and fittings for the purpose of, inter alia, replacing any item thereof which it was appropriate to replace in the sense referred to above. The statutory regime, given the terms of s 62(3) in particular, required an owners corporation to be proactive and not, as the primary judge found the respondent to be in this case, merely reactive. It could not escape its statutory obligations by simply hiding its head in the sand.

McColl JA, on whose analysis the Owners Corporation places much weight, addressed in detail the question whether s 62 of the Act imposed an affirmative duty to conduct, or procure the conduct, of an expert assessment of every possible source of danger in the common property and any personal property vested in it (by reference to s 62(1)) and fixtures and fittings comprised therein (by reference to s 62(2)) and, if so advised, to upgrade the materials in that property to accord with contemporary, albeit non-binding Australian Standards. The central question was therefore whether s 62 imposed on the Owners Corporation a common law duty of inspection (for which the appellant had there contended). Her Honour drew a clear distinction between breach of the statutory duty in s 62 and breach of a common law duty of care, and noted (at 467 [90]): It is open to the appellant to rely upon what he contends is the respondent’s breach of s 62 as evidence of negligence on its part, rather than as conferring a cause of action: see O’Connor v SP Bray Ltd [1937] HCA 18; (1937) 56 CLR 464 at 477 per Dixon J. However, a breach of s 62, if established, is not conclusive as to whether the respondent acted negligently. The common law duty to act reasonably in all the circumstances is paramount. Whether a failure to act in accordance with a statutory obligation constitutes a breach of that duty is a question of fact to be judged in the circumstances of the case: Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424 at 427; see also Abela v Giew (1965) 65 SR (NSW) 485 at 489; Tucker v McCann [1948] VLR 222 at 225 per Herring CJ.

Her Honour did not agree that s 62 imposed upon the Owners Corporation a duty of affirmative action of the kind found by Tobias JA.

Her Honour reviewed the scheme of the earlier Act (continued in the 1996 Act) which indicated that it was concerned to allocate responsibilities as between the Owners Corporation and lot proprietors for the strata scheme; to set out the functions of the Owners Corporation; and to establish a regime to enable enforcement, without recourse to courts, of a function conferred or imposed by or under the Act in relation to strata scheme. In determining the nature of the duty the Act imposed upon the Owners Corporation, her Honour considered it important to recognise that the Owners Corporation was simply a body which came into existence on the registration of the strata plan and was not the builder, vendor or landlord.

Her Honour considered (at 483 [158]) that the obligations of maintenance and repair in s 62(1) (having regard to the Macquarie Dictionary (Second Revision) definitions cited by her Honour, namely that “maintain” means “… to keep in existence or continuance; preserve; retain … to keep in due condition, operation, or force; keep unimpaired …” and that to keep something “in repair” involves restoring an object to “good or sound condition after decay or damage”) were, prima facie , “directed to keeping the common property operational and to restoring something which is defective”.

Her Honour concluded that s 62(1) and (2) did not impose a [statutory] obligation on the respondent to insert new glass in a door which was relevantly operating as intended and therefore did not require maintenance or repair (let alone an obligation to procure experts to assess the premises to determine whether any of the materials of which the common property was constructed could be made safer). The question was whether s 62(3) enlarged the prima facie scope of the duties under s 62(1) and 62(2) (in effect, as I read her Honour’s reasons for judgment, so as to go beyond the statutory duty of maintenance and repair and to impose a duty of a common law kind to take reasonable steps to prevent the statutory duty being triggered). Her Honour said (at 487 [177]-[178]): In my view the nature of the qualification s 62(3) casts upon the owners corporation's duties is best understood by reference to what s 62(1) and s 62(2) require it to do. Once it is understood, as I have explained, that those subsections are directed to circumstances where something in the common property, to put it shortly, is no longer operating effectively or at all, or has fallen into disrepair, then it is apparent that the owners corporation is not obliged to conduct or procure the conduct of an expert assessment of every possible source of danger in the common property, any personal property vested in it, and fixtures and fittings comprised in that common property and in personal property vested in it and, if so advised, to upgrade the materials in that property to accord with contemporary, albeit non-binding Australian Standards. The obligation on the owners corporation to maintain the common property and to keep it in a state of good and serviceable repair and renew or replace any fixtures or fittings which have fallen into disrepair is not, therefore, attracted by a glass door which was otherwise in good repair and operating as intended, albeit that the glass in it did not accord with that used in contemporary buildings. (My emphasis)

It is in that context that her Honour’s conclusion must be read, namely the conclusion (at 488 [187]) that: [I]n my view, prima facie , the question whether the owners corporation has discharged its s 62 duties of maintenance and repair is to be judged by whether an “ordinary person” in the owners corporation’s position “would or should known that there was any risk; whether that person would or should have known of steps that could be taken in response to that risk; and the reasonableness of taking such steps”: Jones v Bartlett per Gummow and Hayne JJ (at 220 [186]).

What her Honour was not there saying was that the statutory duty of maintenance and repair was only to take such reasonable steps as the ordinary person might take in circumstances where something in the common property had fallen into disrepair.

In my opinion, McColl JA was not suggesting that the absolute nature of the obligation under s 62 (as explained by Brereton J and, as it would appear, accepted by both Hodgson JA and Tobias JA) should be qualified as an obligation simply to take reasonable steps to do something. Rather, that in determining what was required properly to maintain and to keep in repair an otherwise functioning part of the common property, regard would need to be had to issues such as awareness of the risk of disrepair and the reasonableness of taking steps to avert that risk.

In my view, in ascertaining the scope of the requisite degree of maintenance or repair, the use of the word “properly” imports a balancing exercise, namely to determine what in all the circumstances is “properly” to be done, in terms of maintenance. I see the word “properly” as referable to the ambit or scope of maintenance works required to be carried out by the Owners Corporation, not as a qualification of what is required in order to satisfy the obligation once the scope of the requisite works has been determined. Once the ambit of the necessary works (“properly” to effect maintenance) has been ascertained, the fact that the Owners Corporation may have taken reasonable steps to effect those works (but has been incapable for whatever reason of so doing) does not mean that there is no breach of the statutory duty.

I respectfully adopt what Brereton J in Seiwa said (at [21]): … The strict nature of the owners corporation’s duty makes whether or not it took all reasonable steps irrelevant, if ultimately it failed at any time to meet the strict requirements of the s 62 duty. Breach

Turning to the evidence, Mr MacGregor gave evidence that there was a waterproofing defect in that there was no upturned waterproofing on the balcony wall by either flashing or tiles and therefore there was a capacity for water to run onto the exposed section of the wall (from the floor of the balcony) and pass into the wall cavity and percolate into the building (T 96). Mr MacGregor said this was a defect observed by him in August 2004. (If so, then this defect existed well prior to the installation of the air conditioner unit in early 2005.) Mr MacGregor’s evidence, as I understood it, was that to the extent that water came through the outlet to the air conditioner, that was not the cause of the water penetration problem.

Mr MacGregor’s observation that there was a waterproofing defect (unattributable to the air conditioner as installed) seems to have been borne out by the need during 2004 (and indeed at other times also during the period from 2002-2007) for rectification work, not just to Unit 7 but also to a number of other units.

I note that the report prepared by RHM on 26 July 2007 stated its opinion that the water in the units was emanating from either blockages within the cavity or failed and/or poorly detailed cavity flashings within the external walls. The report stated a belief that lack of sufficient weep holes in the external skin of the brickwork was exacerbating the problem and that those failures were allowing water to bypass the cavity flashing and transfer to the inner skin of the brickwork and hence to the units themselves. There was no suggestion, as I read it, in that report that the cause of the problem was related to the installation of the air conditioning unit (cf the comments made by RHM in relation to Unit 5 water penetration, where the view was expressed that a louvred vent in the wall in that area suggested that water penetration was likely to be related to wind driven rain).

I was taken to nothing in the Sutech or RHM reports to suggest that there was not a defect requiring rectification of the kind adverted to by Mr MacGregor. In relation to the parquetry flooring, one need only look at the series of photographs taken of the floor to see that repair of some kind was necessary from an early time.

On any view of things, the obligation “properly” to maintain and to keep in a state of good and serviceable repair the common property must encompass attending to actual problems of water penetration and the repair of parquetry flooring which had buckled, as had the flooring in Unit 7, to such an extent that even the expert valuer called for the Owners Corporation considered that at least some basic repairs were necessary before the unit would reasonably be able to be offered for rent.

Therefore, if the statutory duty is absolute (as I consider it is) there was a clear breach by the Owners Corporation (however well intentioned it may have been) in failing to rectify the problems to the common property in Unit 7 over a period of some six and a half to seven years.

I find that there was a breach of the statutory duty by the Owners Corporation. Assume contrary to above, that statutory duty is a qualified duty

If, contrary to Seiwa and the conclusion I have reached above, the statutory duty cast on the Owners Corporation was no more than to take reasonable steps properly to maintain the common property and to keep it in good and serviceable repair (whether or not “properly” qualifies both verbs), I would not have found that the Owners Corporation satisfied that qualified duty.

It was submitted that the Owners Corporation had taken all reasonable measures properly to maintain and repair the common property in accordance with its obligations and duties and had acted to the best of its abilities, having retained a number of tradesmen over the years to inspect, review damage and to assess the repairs (Moldovan & Associates, Act Now Waterproofing, KB Flooring, DPS Consultants, The Kraftsmen, Sutech, RHM Consultants and Advance Flooring).

It was further submitted that Ms Trevallyn-Jones had hindered, frustrated and delayed attempts by the Owners Corporation to discharge its obligation to carry out and effect repairs to the unit by not being available when requested, by limiting access to her unit, by not responding to messages and letters, by complaining about the works that were being carried out to the effect that they were not to a proper standard, by refusing to approve reasonable scopes of works, and by harassing or threatening to sue tradesmen. This conduct seems to be relied upon both as limiting what was reasonable to expect from the Owners Corporation in all the circumstances (as part of an assessment as to whether the Owners Corporation had breached its statutory duty) and (which I will consider later) as relevant to the causation issue.

The recurrent theme emerging from Mr Radford’s evidence was that he (and perhaps the Owners Corporation) regarded Ms Trevallyn-Jones as a very difficult person with whom to deal: he noted there was a strata levy dispute with her; that neither the Owners Corporation nor members of the Executive Committee were invited into Ms Trevallyn-Jones’ unit; that they were never “shown” the problem (although it seems accepted that the problem was common to a number of units); and that the Executive Committee was, in the end, just trying to appease Ms Trevallyn-Jones. · What was done by the Owners Corporation?

I have outlined above the chronological series of events in relation to the steps taken to rectify the water penetration problem. There was evidence from a number of unitholders who were members of the Executive Committee for part or all of the period – Mr Radford, an auditor (who was elected to the Executive Committee on 7 July 2003, became Chairman in July 2004, was not re-elected in July 2006, but then was reappointed to the Committee as chairman on the resignation of Mr Kevin Keys (who had become chairman in the interim) in April or May 2007), Mr Peter Hosper, a director by occupation (who became a member of the Executive Committee in around July 2003), Mrs Anne Robertson-Swann who is retired (a member of the Executive Committee from about its inception in the 1990s until about a year ago) and Mr Kevin Keys (a former unitholder who was chairman of the Executive Committee from July 2006 to about April/May 2007). All but Mr Keys were cross-examined.

Significantly, in my view, no evidence was adduced from the agent. Nor was any evidence adduced from any of the tradesmen or consultants who worked on the unit or from the experts (other than Warwick MacGregor) who had advised on the problem. · Mr Radford

Mr Radford was the principal witness for the Owners Corporation. He affirmed, in all, four affidavits and had prepared a chronological summary of events based largely (it would seem) on documents which he had either sent or received over the period or had otherwise obtained during his time or times as chairman. For much of the period in question he appears to have been the member of the Executive Committee responsible for communications with Ms Trevallyn-Jones and the agent in relation to the issue.

Although, in paragraph 7 of his affidavit of 23 September 2008, he says that “since [July or August 2003] I have had an intimate knowledge of the strata’s attempt to rectify the plaintiff’s unit”, in the witness box Mr Radford largely disclaimed any knowledge of attempts at rectification or resolution of the problem other than those which occurred during the periods in which he was Chairman of the Committee (seemingly regarding himself as responsible for the dispute to a large degree only during those times), in which he had been the recipient or instigator of correspondence in relation to the dispute.

Mr Radford gave his evidence generally by reference to the respective chronologies of events which he had prepared. He said he did not have independent recollection of the matters other than by reference to that chronology and to my observation he referred extensively to that chronology when asked questions in cross-examination.

From my review of the chronology, it tended to paraphrase, and in some instances to put a particular gloss on, what was said in the primary document(s) to which it referred and in some cases was inaccurate. So, for example, and without seeking to be exhaustive, Mr Radford’s first chronology noted in item 2 that there had been no mention of problems with apartment 7 in the June 2002 minutes (whereas the minutes themselves refer to cracks and a courtyard leak from Unit 7); item 3 noted no mention of problems with apartment 7 in the July 2003 minutes (although there was correspondence from Ms Trevallyn-Jones correcting those minutes in that (and other regards) in the tendered bundles and the minutes appear to have duly amended); item 11 noted the issue of outstanding strata fees (as did other later items such as item 44) although the relevance of those is not apparent to me unless it is suggested (which it was not) that the Owners Corporation’s duties were somehow limited by that fact; item 65 noted that Ms Trevallyn-Jones had made no contact with Mr Radford as requested in his 15 June 2006 letter (without reference to the fact that Ms Trevallyn-Jones later wrote asserting that she had not received that letter until she inspected the Strata Records in August that year). Similarly, Mr Radford’s later affidavit deposed in paragraph 39 to having received “no reply” to his letter of 8 August 2007 to Mr Krikis (although he conceded that Mr Krikis was Ms Trevallyn-Jones’ nominated representative and that he had received a detailed response from Ms Trevallyn-Jones to that letter).

Unlike Ms Trevallyn-Jones, who had a relatively precise recollection of dates and events without being taken to all of the documentary material (perhaps not surprising for someone who, in a literal sense, lived with the water penetration problem for a considerable period of time), Mr Radford was generally unable to recall matters unless by reference to a piece of correspondence put before him or to his chronology and he conceded his recollection was based on his review of the correspondence (T 153). So, for example, at first in the witness box he denied any awareness of water penetration problems into units, including Unit 7, in May 2003; then admitted that he did remember an incident of water into Units 8, 9 and 10 but did not know that water had penetrated Unit 7 at that time and said that he first became aware of any water penetration into Unit 7 in 2004. Then he corrected that evidence when taken to a letter from Ms Trevallyn-Jones to the Owners Corporation in July 2003 which he had himself noted in his chronology (T 122). (Mr Radford explained the earlier error by the suggestion that maybe it was that when he became Chairman he took more of an interest in what was occurring (T 124). In Mr Radford’s affidavit of 2 June 2009 he had deposed that he was first made aware that there had been water penetration of Ms Trevallyn-Jones’ unit in or about July or August 2003 (paras 5 and 6).)

There was no evidence as to the agent’s practice (over the relevant period) in drawing to the attention of members of the Executive Committee issues raised by unitholders or works needed in relation to complaints such as those made by Ms Trevallyn-Jones in relation to the water penetration issue and Mr Radford could not remember whether such letters came as a matter of course to the Executive Committee (T 123).

Mr Radford asserted more than once that he believed he had done everything within his power to resolve the issue. However, in fact, what he seems to have done (in the main) was to instruct the agent that the matter had to be resolved and to rely upon the agent to progress the matter: “When I became Chairman … I made sure that I contacted Clisdells [the agent] and said we have to address this issue” (T 128). As between the Owners Corporation and the agent it seems that it was left to the agent to take principal responsibility for retaining contractors, and overseeing, the rectification works by the contractors. Mr Radford’s involvement as Chairman seems largely to have been to write a number of letters (to the agent and/or Ms Trevallyn-Jones) from time to time requesting access or notifying Ms Trevallyn-Jones of various matters or, as Chairman, to instruct the agent to progress the matter.

As a general observation, it does not appear that Mr Radford promptly followed up on matters once a request was made by him (there being at times some months’ delay while he says he was waiting for a response from Ms Trevallyn-Jones) and he seemed to take refuge (at least in giving his evidence) in a rather literal view of the correspondence (for example, as to the reason for the first delay in scheduling the rectification works he referred to the fact that Ms Trevallyn-Jones had not contacted him in response to his December correspondence, although it appears that she had contacted another Committee member, Mrs Robertson-Swann, to confirm her agreement to the works; he made an assumption as to lack of approval from Ms Trevallyn-Jones for the third tranche of rectification works in March/April 2008, when the correspondence to her solicitors showed otherwise; he deposed (in paragraph 39) of his 2 June 2009 affidavit that he had received no reply to a letter he caused to be sent to Mr Krikis (by then Ms Trevallyn-Jones’ nominated representative for the purpose at least of access) enclosing the report of RHM Consultants and requesting that Mr Krikis comment thereon, whereas in the witness box he accepted that Ms Trevallyn-Jones had herself provided detailed comments on that report). (While it may also fairly be said that there were delays on Ms Trevallyn-Jones’ part at times when she was waiting to be contacted for access, the responsibility must principally have been on the Owners Corporation to progress matters in this regard, it having a statutory duty to effect the works.)

Mr Radford accepted no responsibility as a member of the Owners Corporation for progressing the water penetration issue except for the periods when he was the Chairman. He professed no knowledge of the issue prior to becoming Chairman in 2003; says he did not enquire as to what had happened before then; and his evidence was that when he ceased as Chairman he gave no “handover” as such to the incoming chairman. He could not recall a meeting at all and said the Executive Committee did not meet frequently (T 127).

Clearly, with such an approach on the part of at least one of the Executive Committee members there was scope for the progress of matters to be delayed whenever there was a change in committee membership (or the incumbency of the chairman) and the risk that matters would not be followed through.

Significantly, perhaps, Mr Radford, when being asked in cross-examination what he personally had done to address the issue, said, “You have to realise Ms Trevallyn-Jones was still three quarters behind in her strata fees” (T128). While he denied that his influenced the Committee, as noted above the only relevance of such a comment (volunteered with some emphasis in the witness box – “you have to realise” - by the witness) could be by way of some explanation for a lack of (immediate) attention to the problem. (The issue of outstanding levy fees seems irrelevant to the issues in the proceedings, other than to suggest that there may have been other factors influencing the conduct of the Executive Committee over the period. I certainly cannot assume that a dispute relating to any outstanding fees reflects adversely on Ms Trevallyn-Jones’ credit in this matter. The correspondence (tendered not for the truth of the assertions contained therein) suggests that there was a dispute as to the calculation of interest charges and amounts levied by the agent for sending out levy notices.)

Mr Radford also seemed to suggest that things might have been different had the Owners Corporation (or he) only known that Ms Trevallyn-Jones had professional qualifications: Access was granted. It is important to note that nobody knew Ms Trevallyn-Jones was an architect, because not one proposal had been put forward to the Owners Corporation by Ms Trevallyn-Jones nor did she sit down with the Executive Committee and [say]: ‘I am an architect. Here is a proposal to fix this issue’. That never once occurred. Now, if she was an architect, she would have known about all these things, I would have thought that would have been an easier approach, to come to the Committee and say, ‘Look I am an architect. I know about the problem with water penetration in the building. I suggest this proposal, that my husband has an architectural firm. We have people who can deal with these issues’. That was never put forward once. (My emphasis)

Even if Ms Trevallyn-Jones’ (or her husband’s) professional qualifications were relevant, this complaint is belied by the fact that not only had Ms Trevallyn-Jones offered as early as 2003 to obtain architectural advice from an architectural firm (Krikis Taylor) (with which firm, according to Mr Radford’s own summary, Ms Trevallyn-Jones’ husband was associated) but also, and quite amazingly in the context of Mr Radford’s complaint, his own correspondence (tendered by the Owners Corporation) makes it clear that as at September 2004 he knew, or was at least professing to know, something of Ms Trevallyn-Jones’ professional background, insofar as he had written to the agent referring in terms to Ms Trevallyn-Jones’ “architectural background and understanding of the issues” (Ex 1 p 81).

In circumstances where Ms Trevallyn-Jones had made numerous attempts to draw the Owners Corporation’s attention to the water penetration problem and issues arising in relation thereto and had made suggestions as to how it should be addressed (and seems as a result to have been criticised for this as someone hindering the works and as a very difficult person “to appease” or, following her comments in September 2004 on the Moldovan Report, as “slightly obstructionist” (Ex 1 p 88)), I cannot accept that Mr Radford’s complaint that Ms Trevallyn-Jones did not put forward her own proposal to remedy the problem with her unit has any foundation.

Nor is there evidence to suggest that the Owners Corporation would have accepted the recommendations put forward by Ms Trevallyn-Jones (which ultimately appeared to be well founded) had the Owners Corporation only known she was an architect. Mr Radford, writing to the agent in 2004, apparently believed Ms Trevallyn-Jones to have an “architectural background and knowledge of the issues”. Yet he, and the other Executive Committee members, chose time and again not to accept the recommendations Ms Trevallyn-Jones had put forward. · Mr Hosper

Mr Hosper was unable to shed much further light, if any, on what the members of the Executive Committee had done over the period. Indeed, Mr Hosper’s position was quite extraordinary for someone whose occupation is that of a director and who presumably is familiar with the conduct of meetings in a corporate context. Mr Hosper was unable to recall when meetings had taken place of the Executive Committee, of which he was a member since around July 2003. He showed a singular lack of knowledge as to whether meetings of the Executive Committee had actually taken place at all – guessing that there had probably been a couple from 2002 to date (T 193). He referred extensively to Mr Radford’s chronology. Insofar as he said he had reviewed Mr Radford’s chronology (a copy of which he had with him and appeared from time to time to be consulting in the witness box) and was of the opinion that it provided an accurate representation of what had transpired, I can place little weight on this because it is by no means apparent that Mr Hosper had reviewed all the correspondence or indeed had any personal or independent recollection of the matters summarised in the chronology. Quite tellingly, in my view, Mr Hosper thought that he had done all he could to assist in the resolution of the problem consistent with the need to have a “normal” life. At T 197 he said: Well, as you can see there's lots of correspondence during that time and I felt again it was adequately being dealt with and I felt that everybody, including myself, had done to the best of our abilities what we could do within our abilities of having a normal life as well . ( My emphasis)

Mr Hosper does not appear to have done anything actively to progress the resolution of the water penetration problem. Mr Hosper said Mr Keys was responsible for this during July 2006 to April 2007. He said, “I think by default I did have a role [to play in the water penetration issue] because I was on the Executive Committee” (T 194) (My emphasis). That “default” role does not appear to have been productive of any pro-active steps to resolve the issue.

Nevertheless, Mr Hosper considered it “offensive” to be asked if he was concerned that the water problem was “dragging on”. He said at T 195: When I became aware of the actual problem in 2003 Ms Trevallyn-Jones was on the executive committee and she was actually dealing with the issue herself, so I didn't feel I needed to get involved in that period of time.

He was aware Ms Trevallyn-Jones had sought mediation in June 2004 but did not recall that one of the proposed subjects of the mediation was the replacement of the strata agent. He denied that there was no action in relation to Ms Trevallyn-Jones’ water penetration problem: No, that's not right. I was on the executive committee myself and Ms Trevallyn-Jones was in correspondence with the strata management company, so I was aware of that.

Mr Hosper based this view, however, on the following: It wasn't obvious to me at the time that nothing was happening because the correspondence suggested otherwise that I remember. an extraordinary comment when the correspondence itself largely consisted of a series of complaints by Ms Trevallyn-Jones that the water penetration problem and/or damage to the parquetry floor had not been fixed.

Mr Hosper said that he was not aware in 2004 of any work that had actually happened, “but how could I be if I didn’t know that this was a problem” (inconsistent it would seem with his earlier evidence insofar as that purported to confirm Mr Radford’s chronology) and somewhat surprising when he was aware of water penetration problems at least to his and other units following the “torrential” rain in mid 2003. Mr Hosper knew Ms Trevallyn-Jones was writing to the agent but was not aware of anything actually happening to rectify the problem. Though he “thinks” he was probably aware of the duty to maintain common property back in 2004 (T 196), when asked if it was a concern of his to make sure the waterproofing problem was dealt with as soon as possible, Mr Hosper said: My concern was that it was being dealt with and it was being dealt with with the best person, who was Ms Trevallyn-Jones herself, who was first of all the person who had the problem and, secondly, someone who was on the executive committee, so I didn't think that there was any issue because again I felt it was being dealt with adequately, seeing that it was dealt by herself. and as to the period (from July 2004) when Ms Trevallyn-Jones was no longer on Executive Committee, he said that: At that point in time I think I was satisfied that the managing agent was dealing with it adequately. but cited no basis for that belief.

Mr Hosper, not surprisingly, readily conceded that: It [the water penetration problem] could have been fixed much earlier. … I can only speak from my own experience when I had a similar problem, and it was fixed within less than a year, so that's what I think was reasonable. · Mrs Robertson-Swann

The third member of the Executive Committee to be cross-examined, Mrs Robertson-Swann, took no active role in resolution of the problem. Her evidence largely related to her recollection of a conversation relating to the circumstances in which Ms Trevallyn-Jones vacated the unit and her observation of water testing carried out in July 2007. · Mr Keys

Finally, as to Mr Keys who signed an affidavit dated 31 October 2008 (though whether sworn or affirmed it is impossible to tell from the manner of attestation of the affidavit), Mr Keys noted that he had resided in the apartment building for more than ten years until June 2007. He gave no evidence in his affidavit as to any involvement by himself in the resolution of the water penetration problem in Ms Trevallyn-Jones’ unit (though Mr Hosper and Mr Radford both appear to have considered him responsible for dealing with the matter at least for the 10 or 11 months he was chairman). · Conclusion

I am forced in light of the above to conclude that the resolution of the water penetration problem was left largely in the hands of the agent (from whom there was a glaring lack of evidence), with whom, at least at one stage, Ms Trevallyn-Jones had apparently encountered sufficient difficulty (at least from her perspective) in securing cooperation in her efforts to resolve the water penetration problem to warrant the cost of an application by her to the CTTT for mediation with the Owners Corporation in an attempt to secure the appointment of another agent.

The explanation for the apparent lack of any concerted involvement by the Executive Committee in the efforts to resolve the problem may well be that, as explained by McColl JA in Ridis , the Owners Corporation is simply a body which comes into existence on registration of the strata plan. The members of the Executive Committee do not necessarily possess any expertise in building matters and, understandably, would rely on experienced agents and contractors to resolve problems of this kind. But if those agents fail to do so effectively or in a prompt manner, such that there remains an ongoing problem or deficiency in the maintenance or repair of common property, it is no justification for the Owners Corporation to say, in effect, ‘well we told the agent to get on and resolve the problem as quickly as they could and so we have done all that we could reasonably be expected to do’.

In summary, it seems that Owners Corporation first seems to have left the issue for Ms Trevallyn-Jones to progress with the agent. (At that stage the agent appears to have sought to deal with the issue by way of a claim on insurance.) The Owners Corporation then deferred dealing with Unit 7 while it obtained reports as to water damage in relation to other units (perhaps explicable on a costs savings basis but no answer to the fact that, while the problem remained unrectified, there was a breach (or, on the qualified test asserted by the defendant, at least a risk of breach) of the Owners Corporation’s statutory obligations), and then to obtain a second report for the purposes of presentation to an Extraordinary General Meeting of the Owners Corporation. The work, once approved, was not commenced in Unit 7 at the same time as Units 4 and 5. According to Mr Radford, this was because Ms Trevallyn-Jones had not contacted him in time in response to his letter. According to Ms Trevallyn-Jones she had confirmed with Mrs Robertson-Swann her agreement to have the works done and the latter had indicated the work would not be scheduled until the New Year. Accepting that this seems to have been a genuine misunderstanding, this was nevertheless another delay.

After rescheduling of the works due in part to illness in Ms Trevallyn-Jones’ family, they were not carried out until August 2005 and then, on any objective view in light of what happened thereafter, they were unsuccessful in rectifying the problem

By that stage (in 2005) there were clearly issues between Ms Trevallyn-Jones and the Owners Corporation as to what was the scope of the problem and how it should be rectified. I have detailed in the chronology above the saga of events which followed.

It is significant to note that the water penetration problems experienced by Ms Trevallyn-Jones were not unique. Mr Hosper, Mr Keys, Mr Radford and Mrs Robertson-Swann each gave evidence that he or she had encountered water penetration problems in his or her respective units. The correspondence makes reference to similar problems in the unit adjacent to that of Ms Trevallyn-Jones (and, indeed, there is a suggestion in some of the correspondence that the problem might have emanated from that adjacent unit; although there is nothing to support a finding one way or another on that issue). These problems with other units were apparently rectified to their satisfaction, reasonably promptly and (it was said) without difficulty.

Mrs Robertson-Swann deposed that during the time that she had been living in the Strata Plan she had some problems with a leaking ceiling; she said that she reported those problems to the strata manager and/or Executive Committee and those problems were fixed without any difficulty.

Mr Hosper gave evidence that in or about May 2003, during a period of “torrential” rain a water leak developed through the ceiling of his unit and other units (although not referring to Unit 7) were also affected. A significant amount of water had leaked into the unit to the extent that the parquetry flooring in the unit was damaged and needed to be relaid in part and the entire floor re-sanded and resealed. He said that the required rectification works were performed adequately without delay and within 12 months and in the witness box expressed the opinion that a reasonable period within which these repairs could have been effected was one year – since that was how long it took a similar problem in his unit to be fixed.

In Mr Keys’ affidavit, he deposed that there had been water leakage to his unit approximately three years before (so, in about 2005) necessitating the complete re-sanding, resealing and finishing of the entire floor area of the living room level of his unit. He also noted that three years before that (so in about 2002) a very heavy storm had caused leaking through a number of units (though he did not note Ms Trevallyn-Jones’ unit in that list of units) resulting in severe buckling of the parquetry flooring. According to Mr Keys, it took approximately one week to allow the floors to be re-sanded, resealed and finished. He deposed that “On both occasions the building insurer paid for the floors to be fixed and my furniture to be removed and stored” and that “on both occasions I found the Body Corporate and strata managers very supportive of my claim”.

I can only assume that the evidence of the rectification works in the other units was adduced to suggest that the delay (apparently unique amongst the other unitholders who had similar problems) in rectifying the problem in Ms Trevallyn-Jones’ unit was due to her alleged intractability. Nevertheless, this evidence seems to me rather to confirm that, however difficult or exacting a person Ms Trevallyn-Jones may have been to deal with, the time taken to deal with the water penetration problem in Ms Trevallyn-Jones’ unit was unreasonable in all the circumstances and that the repairs could have been effected considerably earlier had the Owners Corporation (or its agent) moved firmly and expeditiously to do so.

It was submitted by Mr Young that there was an issue estoppel arising out of the CTTT orders made in early 2007, insofar as they fixed a reasonable time for the premises to be fixed (and there was no attempt to vary that time frame or appeal from that decision).

No issue estoppel was pleaded (although Mr Young submitted that this was not necessary, it being a matter to be raised, if at all, by way of reply to the denials in the defence, and on the basis that his submissions based on issue estoppel would not have the propensity to take the defendant by surprise). Nevertheless, in the absence of a contested hearing before the Tribunal as to the time within which the problem was required to be fixed, I do not consider that an Anshun estoppel would necessarily arise out of the orders made by it. In any event, I do not see this as necessary for Ms Trevallyn-Jones to maintain her claim.

At the very least, by the time the Strata Schemes Adjudicator ordered, in effect, that the problem should be rectified, it could not be suggested that the obligation on the Owners Corporation properly to maintain and keep in a state of good and serviceable repair the common property did not require rectification works to be performed. The time within which those works should have been completed can on any view of the ambit of the obligation have been no greater than that measured by what was the minimum necessary to effect those works. Having regard to the time taken to fix the problems in other units, that time frame surely must have been 12 months or less. · Difficulties in dealing with Ms Trevallyn-Jones

Turning then to the difficulties said to have been encountered by the Owners Corporation in dealing with Ms Trevallyn-Jones (insofar as those are relevant in determining the reasonableness of what the Owners Corporation did, as opposed to whether they were a cause of or contributed to the damages suffered by her – which I consider later), in my view the fact that Ms Trevallyn-Jones may well have been a difficult (or, perhaps more accurately, a demanding or exacting) person with whom to deal from the perspective of the Owners Corporation (or tradesmen), does not in my view make reasonable the Owners Corporation’s delay of nearly seven years in rectifying the obvious water penetration problem and damage to the parquetry flooring.

The fact that Ms Trevallyn-Jones was critically reviewing the scopes of work/reports provided by tradesmen and the work in fact carried out by tradesmen does not suggest to me that it was reasonable for the Owners Corporation, in effect, to hold up its hands and say it could not reasonably have been expected (itself or through the agent) to oversee and progress the works more expeditiously. Indeed, a critical review by an appropriately qualified expert of the two scopes of work made by Moldovan & Associates at the outset in order to determine the best approach might well have obviated the later need for successive attempts to resolve the water penetration problem. (Instead, having regard to the fact that the Act Now quote was issued to the then owner of the adjacent unit (Ex 1 p 93) and noting the communications preceding it (Ex 1 pp 81, 89 and 91), it may well be that the Owners Corporation, in choosing to engage Act Now to perform a more limited scope of works than that initially recommended by Moldovan & Associates and later recommended by Sutech, followed a recommendation made by the owner of the adjacent unit (said by Mr Radford to have been the developer of the building and, if so, perhaps in a position of potential conflict of interest).) Whatever be the case in that regard, for the purpose of reviewing the reasonableness of the Owners Corporation’s response to the water penetration, it seems to me that the role Ms Trevallyn-Jones took in critically reviewing what was done or what was put to her by way of recommendation for what was to be done does not in any way explain or excuse the very considerable delay by the Owners Corporation from 2002 in rectifying the water problem and putting the unit into a state of good and serviceable repair.

I will consider in due course the issue whether Ms Trevallyn-Jones’ own actions in relation to the air conditioning or water tests caused or contributed to the damage.

While it was conceded by Ms Trevallyn-Jones that there was some minor delay caused or contributed to by her in the scheduling of the first tranche of works (attributable to an illness in the family in May 2005 and a delay which in part coincided in any event with the Owners Corporation’s own request to reschedule the works at that time), it does not seem to me that this was something which, in the scheme of things, reasonably precluded completion of the works in under seven years.

The real problem appears to have been that neither the first tranche nor the second tranche of the rectification or waterproofing work (once actually carried out) effectively rectified the problem, giving rise to inevitable further delays in the rectification both of the underlying problem and of the damage to the flooring.

On an objective test, seven years cannot be seen to be a reasonable time to deal with the water penetration issue, in the absence of some expert evidence to suggest that the problem could not have been fixed earlier.

No evidence was adduced from Sutech (or RHM) or any other expert to suggest that the work could not have been fixed earlier (or that the inability to rectify the problem was due to some particular identifiable conduct which could be directly attributed to Ms Trevallyn-Jones).

Until the waterproofing work was properly completed any parquetry work was either unable to be carried out or, if carried out, was likely to have been of no more than a temporary kind given the probable need for further work. Whether or not (and I suspect the answer is it was) the Owners Corporation was obliged in the interim to effect temporary repairs, the fact is that the parquetry was not properly repaired until December 2008.

Therefore, even had I been of the view that all that was required of the Owners Corporation was that it take reasonable steps to rectify the water penetration problem and to repair the parquetry floor, on the evidence before me I would still have found a breach of that statutory obligation in this case. 2. Damages

In answer to Ms Trevallyn-Jones’s claim for damages, the Owners Corporation raises issues of causation, estoppel and mitigation. As the estoppel plea seems to be predicated on the same facts as gave rise to the causation defence, I consider them together. · Causation/Estoppel

The bases on which it is suggested that Ms Trevallyn-Jones caused or contributed to (or is estopped from asserting) her loss relate broadly to three matters – the installation by Ms Trevallyn-Jones of an air conditioner into the unit in February 2005 (which it seemed to be suggested at least in the course of the hearing, though not apparently before, was “a”, if not “the”, cause of the water damage since 2005); the carrying out of water testing by Ms Trevallyn-Jones in 2007 and by Mr MacGregor in 2008 said (without any evidence to support this) to be unlikely to be experienced in the normal course of events and to have exacerbated the problems of moisture penetration; and what I might refer to as the alleged “hindrance” of work generally by Ms Trevallyn-Jones, in terms of difficulty in the grant of access to Unit 7 for the purposes of inspection/works, failure to “approve” works to be carried out, and criticism or harassment of (and threats to sue) tradesmen. I consider each of these in turn. (i) Installation of air conditioner

There is no suggestion (unlike in respect of the water testing which was admittedly unauthorised) that there was no authorisation from the Owners Corporation for Ms Trevallyn-Jones to install an air conditioner in her unit. The suggestion (drawn by Mr Dixon from Mr MacGregor’s 2008 report) was that this may have been a cause or contributing factor to the damage, since Mr MacGregor had observed that most of the water which penetrated into Unit 7 on the occasion of his water testing in 2008 did so through the hole which had been drilled in the balcony wall to allow for the electrical conduit in respect of the air conditioner. Mr MacGregor was adamant that he had not sprayed the wall near the hole, “so the hole is far away and not part of the equation”. Mr Dixon suggests that Mr MacGregor’s evidence in this regard was inconsistent and it should not be accepted that the spraying was away from the air conditioner hole.

However, Mr MacGregor’s response (to the suggestion put to him in re-examination that significant amounts of water could have gone through the air conditioner hole to the inside) seemed to me quite logical: It is possible. It was not part of what I did, because, clearly, it would give an unreasonable reading, because the hole could leak. But I did not flood it to that height, and I, certainly, didn't spray the wall anywhere near the hole, because it would have defeated what I was trying to establish, which was, really, whether water penetrated into the interior, with the corollary that the floor would then be suitable to have parquetry refitted. It is for the benefit not only for my client but for the Body Corporate, as well, to exhaust this question, so that when they do the repairs, they can basically rely on them. (T 113.18)

That said, Mr MacGregor accepted that the hole did let water into the unit from the cavity (T 113). When questioned about this (and in particular in response to a question I posed as to what would have happened to the water had the hole not been there) Mr MacGregor said that once water had penetrated into the cavity wall, then if it had not been able to drain to the exterior it would have migrated into the walls and that if there was a lot of water it might seep across the wall or migrate up the wall and “evaporate off”. However, the water penetration problem would still, as I understand it, have been there (as the air conditioner hole did not go through to the exterior wall).

Therefore, although the presence of the air conditioner hole might conceivably have exacerbated damage to the flooring by permitting more water than otherwise into the unit, there is no suggestion that there would have been no damage but for the installation of the air conditioner. Indeed, by early 2005 the buckling of the parquetry floor had already occurred and there is no evidence to suggest that the parquetry floor could or would have been fixed earlier but for the existence of the air conditioner hole.

There was no evidence from any building consultant to suggest that, but for the air conditioner hole, the damage would not have occurred; or that by reason of the presence of the hole the damage was exacerbated or increased. There is no dispute that the original damage (and buckling to the parquetry floor) occurred well prior to the installation of the air conditioner. Mr MacGregor’s evidence, as I understood it, was that the air conditioner hole was not, in his opinion, the cause of the water penetration problem (T 96). I accept Mr MacGregor’s evidence. While he did seem to be somewhat defensive when he perceived his opinions to be subject to criticism, there seemed to be nothing illogical in his explanation of the conclusions he had drawn from his observations of the problem and his initial identification of the problem and views as to what was required to remedy it seems to have been largely, if not wholly, vindicated by later events.

There was water penetration damage and damage to parquetry flooring in at least three other units over the period. Mr Keys’ affidavit deposed to further buckling of the parquetry floor in his unit in 2005 and I would infer this followed the same rain period that preceded the 2005 water penetration and damage to Ms Trevallyn-Jones’ unit.

Insofar as the RHM report in 2007 recommended further waterproofing rectification works to four units (and there was no evidence that the damage to the other units resulted from an air conditioning unit) I can only conclude that there was an ongoing water penetration problem from at least 2001 (not fixed by the 2005 works) and therefore that whether or not the air conditioner had been installed in 2005, this problem in Ms Trevallyn-Jones’ unit would have remained until finally remedied (which it seems to have been in 2008).

On the evidence before me, I cannot conclude that the installation of the air conditioner in February 2005 was the cause (or even a cause) of the subsequent water penetration which caused the delay from 2005 to the replacement of the parquetry flooring in Unit 7. (ii) Water tests

It was submitted that Ms Trevallyn-Jones had caused or contributed to any loss or damage to her unit as a result of carrying out water testing in or about July 2007 whereby she allowed significant amounts of water to penetrate her unit “in a deliberate act which undoubtedly caused further damage to her unit”.

It is not disputed that there were three occasions on which water tests (which had not been approved by the Owners Corporation) were carried out to Unit 7.

The first test was carried out by Ms Trevallyn-Jones herself in July 2007. This was after at least three instances (in 2001, 2002 and again in 2006) where there had been water penetration to the unit following periods of rain and after damage had been caused to the parquetry floor. The Sutech report on 13 June 2006 had stated that: We were advised by the owner no visible water penetration had occurred since our previous inspection and the effectiveness of the waterproofing measures had not been tested due to dry conditions. It was also confirmed that no controlled water tests had been undertaken. The recent heavy rain has however now resulted in water penetration into the lounge which has saturated the lounge floor adjacent to the balcony door where previous water penetration caused damage to the parquetry flooring . (My emphasis)

Evidence was given by each of Ms Trevallyn-Jones, Mr Radford and Mrs Robertson-Swann as to the 7 July 2007 testing. The evidence of Ms Trevallyn-Jones and Mr Radford as to what was done was broadly consistent (though there were certainly areas of dispute between them).

Ms Trevallyn-Jones said that the hose was left running on the upstairs balcony; she did not block the drains; and water cascaded down from the upstairs balcony into the lower courtyard. Ms Trevallyn-Jones was not present during the whole of the test, but said the balcony was not flooded and she did not observe any additional water in the unit. Some brickwork had been removed from the lower part of the external wall at the time of the test but Ms Trevallyn-Jones said the bricks were up above the level of the balcony (T 69/71).

In Mr Radford’s affidavit of 23 September 2008, he deposed that on 7 July 2007 he had observed water emanating from the upstairs balcony of Ms Trevallyn-Jones’ unit. He observed that a garden hose was leading from the lower part of the unit up onto the upstairs balcony with the hose directly pointed towards the sliding doors leading from the balcony. He estimated that the hose had been running for approximately seven hours.

The length of time during which the hose had been left running was a matter in dispute between Mr Radford and Ms Trevallyn-Jones but otherwise there was no real issue between them as to the circumstances of the test.

Significantly, what Mr Radford did not say was that he had gone onto the balcony of the adjacent unit and had observed the testing in the presence of Mrs Robertson-Swann (as he did in February 2008), nor did he say that he had observed the drain on the balcony to have been blocked, nor did he depose to any discussion with Mrs Robertson-Swann on that day. Rather, his affidavit seems to suggest that he had observed the water running, and/or discussed the fact that water was running, with his partner, not with Mrs Robertson-Swann (and he said that he and his partner had decided to contact Sydney Water about it).

This is relevant because, after Ms Trevallyn-Jones was cross-examined about the incident (and had said that the drain was not blocked on that occasion), Mr Dixon sought leave to file in court an affidavit from Mrs Robertson-Swann in relation to her observation of the incident (Mrs Robertson-Swann’s earlier affidavit not having made any mention about this issue).

Over the objection of Mr Young, I gave leave for an affidavit to be filed in court on 24 June 2009 from Mrs Robertson-Swann deposing to her observation in July 2007 of the flooding of the balcony of Ms Trevallyn-Jones’ unit. Mrs Robertson-Swann was cross-examined on her affidavit. Mrs Robertson-Swann says that she had access to the adjacent premises and, with Mr Radford, in or about July 2007, walked onto the balcony from where it was said, they could see Ms Trevallyn-Jones’ unit. Mrs Robertson-Swann said, “I could see the drains on the balcony of the plaintiff’s unit had been blocked and a tap or hose had been left running causing the balcony to flood.” Mrs Robertson-Swann said she noticed that the balcony was soaked with water and had started to seep through onto the terrace of the adjacent unit and down below into the garage. She said it did not appear that Ms Trevallyn-Jones was in her unit as she had tried to contact Ms Trevallyn-Jones on the telephone but could not reach her. (As noted, Mr Radford had given no evidence of such an observation; nor did his chronology of events suggest that he had been on the balcony of the adjacent unit in July 2007.)

Rather, Mr Radford’s second chronology (attached to his affidavit of 2 June 2009) deposed to entry into the adjacent unit with Mrs Robertson-Swann on 12 February 2008. Mr Radford said that on that occasion he noticed that the drain in the floor of the balcony of the Ms Trevallyn-Jones’ unit as well as the drain leading to the adjacent unit had been sealed and he took certain photographs. He said that the balcony of the unit had flooded and water had begun to seep onto the adjacent unit and into another unit. He observed that thereafter some water had gained access to the unit owned by himself and his partner in an area where some parquetry pieces had been removed in June 2007 after water had entered from heavy rain but in circumstances where water had not entered into the area where the parquetry pieces had been removed since June 2007. He deposed that “It was my opinion that due to the flooding of the balcony of apartment 7 water had entered the cavity of the building”. (Mr Radford’s occupation is as an auditor. He does not apparently have any building qualifications to enable him to draw such a conclusion in any technical sense.)

Mrs Robertson-Swann was generally vague in her recollection of events. Although she was firm in her opinion that she had been on the balcony of the adjacent unit more than once (since she had the keys and was able to have access there) it seems to me that had she and Mr Radford together been on the balcony of the adjacent unit on 7 July 2007, as well as in February 2008, he would have noted this in his chronology and given some evidence of that event.

It seemed to me that Ms Trevallyn-Jones was a careful witness. She considered the questions put to her and answered precisely and clearly. She paid particular attention to detail (both as a witness and in relation to the proposed works to her unit). So, for example, (T 34) when asked, “Either way, you did not want either of these [Moldovan] scopes of work prepared, did you”, Ms Trevallyn-Jones (quite rightly) distinguished between “preparation” of scope of works and the works proceeding. She was careful to clarify the dates about which she was being questioned (T 61) and her recollection of dates and events in general seemed very clear (T 62.1). She did not as a general rule need to refer back to the written communications in order to recall the events in question. She gave her evidence in a calm way and (unlike Mr Radford) exhibited surprisingly little frustration at the saga of events to which she was being taken.

It did not seem to me that Ms Trevallyn-Jones shied away from acknowledging that the water test itself was unauthorised or carried out without permission. There would seem no reason for her to have denied the fact that the drain had been taped, if this was indeed the case. I think it far more likely that Mrs Robertson-Swann was simply confused in her recollection of the respective occasions and confused the two tests (the first, in 2007, when Ms Trevallyn-Jones says she did not tape up the drain, and the second, in 2008, when Ms Trevallyn-Jones and Mr MacGregor each acknowledges that the drain was taped).

In any event, other than as to credit, this issue seems to lead nowhere (and even on credit it would carry little weight in my opinion). Ms Trevallyn-Jones said (and I accept, since I think it likely that if it were otherwise she would have written complaining of the fact) that she observed no water penetration into the unit after that test.

As to the second test, this was carried out by Mr MacGregor in February 2008. Both Ms Trevallyn-Jones and Mr MacGregor say that Mr MacGregor carried out a spray test where there was a spraying of water on the outside of the balcony wall. The drain was admittedly taped up on this occasion.

Mr MacGregor gave evidence as to the conduct of this test. He referred to the Building Code of Australia requirement that water penetration be prevented and considered the test used by him to be reasonable. Mr MacGregor dismissed as laughable the suggestion that he had caused a significant amount of water to be sprayed. When pressed on this he said it was a light spray intermittently for six minutes. He said, somewhat testily, “You keep telling me I sprayed half of Warragamba Dam onto the wall. That is not the case at all”. He denied that it was an “uncontrolled test” (T 111) and confirmed that it was not a flood test.

Issue was taken with asserted inconsistency as to where the water was sprayed during the course of this test. Mr MacGregor in the witness box said he did not spray the whole of the wall but rather that he sprayed towards the corner below the window. I regarded Mr MacGregor as a reliable witness. He appeared defensive at any suggestion of criticism of his work, but that was perhaps explicable to some extent by the medical condition about which he gave evidence at the outset. In general, I would accept that he was very careful to explain what had been done and in his explanation of his concern to conduct proper tests. He said he wished to ensure that everything necessary was done to determine whether there was an ongoing problem, and indicated a concern to avoid litigation in that regard (T 111.2). By the same token, I think it unlikely that he would have intentionally carried out tests designed (or likely) to damage the property, if for no other reason than for a similar concern to avoid litigation.

Ms Trevallyn-Jones observed that almost immediately after the test water appeared in the interior at the corner where the balcony wall intersected with the adjacent unit’s wall. (This is the corner where the air conditioning unit had been installed by Ms Trevallyn-Jones in 2005 but had the air conditioner been the problem one might have expected a similar pattern to have followed from the July 2007 test, which, as I understand it, was not the case.)

In the circumstances, I am not satisfied that there is evidence that this test exacerbated the existing problem with the water penetration. To the extent that it revealed that further work was necessary, then logically it must have delayed the replacement of the parquetry floor at least until the slab dried out but there is no evidence as to the severity of the problem at that stage or as to how long that delay would have been (other than the initial Sutech report which suggested it could be up to a year but recommended a test in three months) and it seems likely that this merely saved the Owners Corporation additional expense in later attending to what would likely have been further water damage while the underlying problem remained unrectified. I accept the evidence of Mr MacGregor that water testing of this kind is an accepted way to confirm whether a building meets the Building Code of Australia requirements for waterproofing. There was no evidence to suggest otherwise.

There is nothing to explain why it then took a further period of about eight months for the final tranche of the waterproofing rectification works to be finished (during which period further reports were prepared and a new consultant – RHM – was engaged). Any delay to the replacement of the parquetry floor by reason of the February 2008 test should surely have been minimal. In any event, until the water rectification works were complete it could not have been said that the duty under s 62 was satisfied and, pending those works, any repair of the parquetry floor could only have been temporary.

Finally, in November 2008, after the third set of waterproofing works, a third test was carried out. Ms Trevallyn-Jones said the drains were taped over, a sheet of water was left in place for an hour or two and then the tape removed and the water let out (T 28). In November 2008, Ms Trevallyn-Jones did not observe any water penetration. Ms Trevallyn-Jones did not accept that this test (or the earlier tests) could have damaged the balcony wall (any more than heavy rain would have done). In the absence of anything to suggest otherwise, I would accept this.

Mr Dixon submitted that Ms Trevallyn-Jones’ conduct in carrying out the unauthorised water tests amounted to improper conduct which either directly led to or exacerbated the loss and damage she claims to have suffered. The Owners Corporation’s contention was that the water testing “was a deliberate act, and it could have been intended, and consequentially it might have, to further damage [sic] the premises”. There was no evidence that the water testing in July 2007 caused or contributed to the damaged flooring. The highest that Mr Dixon could put this (T 225) was that in June 2006 the Owners Corporation’s expert had said there was no water penetration issue. If that is a reference to the 13 June 2006 Sutech report, with respect that is not what Mr Ramsden of Sutech appears to have said. Rather, he reports that he was advised by Ms Trevallyn-Jones that “no visible water penetration had occurred since our previous inspection and the effectiveness of waterproofing measures had not been tested due to dry conditions” but that the recent heavy rain (occurring a month or so before the July 2007 test) had resulted in water penetration (Ex 1 p 216).

In the absence of evidence from expert builders/waterproofers that water testing of the kind carried out in July 2007 caused (or exacerbated) a water penetration problem or was likely to have done so, I am not satisfied that I should draw the conclusion for which Mr Dixon contends.

There is no doubt there was a water penetration problem in the building from at least 2003 and probably as early as 2001; well before there is evidence of any water testing by Ms Trevallyn-Jones. The Sutech reports themselves appear to have been based solely on the moisture test results in the walls/slabs of the unit, and do not suggest that the cause of the problem was due to anything attributable to Ms Trevallyn-Jones’ conduct. Even if additional damage to the flooring had been occasioned by the 2007 or 2008 water tests, the parquetry floor already needed repair by the time of those tests. The delay in carrying out those repairs up to December 2008 in my view is principally referable to the delay in confirming whether the water penetration problem had been properly rectified (which it was not, until late 2008).

Mr Dixon submits that the water testing in February 2008 was unnecessary and that a reasonable way of addressing whether the problem was fixed would have been to wait and check the moisture tests later (which seems to be a version of the Sutech “wait and see” approach all over again). Apart from the fact that such a course would of itself have involved delay, the fact seems to be (with the benefit of hindsight) that this would have led to one of two consequences – either no rain in the interim, and so the parquetry floor would have been fixed with a latent water penetration problem exposing the Owners Corporation to the risk of further costs (and it is clear from the events which occurred in February 2008 and the RHM report that at that stage the water problem was not fixed), or the moisture test would have revealed (as was the case) that further works were indeed necessary.

I do not accept that the water testing carried out in February 2008, as a matter of fact, broke the chain of causation in respect of the damage sustained by reason of failure to remedy the water penetration which had arisen back in 2001-2003. On the evidence, I think it reasonable to conclude that the underlying water penetration problem was not caused by Ms Trevallyn-Jones (and I am not satisfied that Ms Trevallyn-Jones’ actions in any way exacerbated it); that the water penetration problem was not fixed until late 2008; and that, until it was fixed the parquetry flooring could not practically have been repaired other than as a temporary measure. (iii) Hindrance · Access

As to the alleged difficulties in relation to access, I am not persuaded that these were caused by Ms Trevallyn-Jones. The Owners Corporation relies upon a succession of correspondence suggesting there had been difficulty obtaining access and, at least on Mr Radford’s part, seems to have misconstrued some of the correspondence in relation to this issue or made assumptions as to Ms Trevallyn-Jones’ motivations.

So, for example, in the witness box Ms Trevallyn-Jones was asked about a letter dated 9 December 2004, which Mr Radford had written informing her that “Christian from Act Now may be able to carry out his part of the rectification work next Thursday and Friday”. That letter was addressed to her Cremorne address. Ms Trevallyn-Jones says she received the letter a few days later.

Ms Trevallyn-Jones accepts that she did not make arrangements with Act Now for “Christian” to carry out the works on those days. However, it is not by any means apparent that she was being asked, or had an obligation, to do so. In fact, in that letter (Ex 1 p 146) Mr Radford wrote It would be appreciated if you would make contact with myself some time after this Saturday, preferably on the Sunday, when I can tell you if the tiler is going to be available next Saturday. and asked Ms Trevallyn-Jones to indicate when she could allow access. This is the letter Ms Trevallyn-Jones says she received after the nominated Sunday, following which she spoke with Mrs Robertson-Swann when she saw her in the corridor later in the month and said she was happy for the work to go ahead. Mr Radford was unaware of any such conversation.

Ms Trevallyn-Jones said that Act Now had not asked her for access on specific days (T 43). She said that Christian telephoned her in early December and wanted to start work the following morning. Ms Trevallyn-Jones (not unreasonably in my view) wanted more notice than that in order to arrange for someone to be there when the works were carried out. Ms Trevallyn-Jones wrote to the Owners Corporation asking that she be given reasonable notice for access. Mr Radford wrote back on 20 December 2004, this time expressly asking permission for access and Ms Trevallyn-Jones responded that she would be happy to provide access. Mr Radford then wrote on 2 February 2004 “again” asking for co-operation in allowing access to the unit. There was further correspondence in March/April 2005 in relation to the work then scheduled for May 2005. Ms Trevallyn-Jones says she was not contacted by anyone from Act Now to gain access from December 2004 to May 2005. (There was an issue as to complaints raised by Ms Trevallyn-Jones to the rudeness of “Christian” at about this time.)

Ms Trevallyn-Jones’ correspondence suggests that on a number of occasions she readily proffered her mobile number/contact details to assist in arranging access. So, for example, I note that Ex 1 p 184 is a facsimile transmission from Ms Trevallyn-Jones to the agent on 11 August 2005 noting that the (Act Now) waterproofing work had been completed on that day and requesting the agent to pass on her mobile phone number to the parquetry firm if that helped schedule work. This is not the picture of someone causing difficulties in hindering access to her apartment for the works to be carried out.

By letter dated 13 July 2004, Ms Trevallyn-Jones asserted that she had left messages for, but not heard from, the builders apparently retained by the Owners Corporation; and that she was arranging for her own building consultant to review the unit but added: If you feel that, in addition to the report I am arranging from a building consultant, an inspection by the Kraftsmen would be worthwhile, I will be happy to make myself available for an inspection. and it appears (from her assertion in Ex 1 p 64) that in due course she may have done so. (In relation to Act Now, Ms Trevallyn-Jones says that the first occasion that she was asked to co-ordinate directly with Act Now in relation to access was by letter dated 30 July 2005. That seems to me to be consistent with the text of the earlier communications from Mr Radford asking that she contact him (not Act Now).)

When tested, the “access” problem seems to have been largely one of miscommunication, perhaps coupled with an assumption on the part of Mr Radford that Ms Trevallyn-Jones that Ms Trevallyn-Jones had some ulterior reason for not allowing access to Executive Committee members to her unit. At least twice in his evidence in the witness box Mr Radford felt it necessary to say that no one from the Executive Committee had been invited into the unit to look at the problem (T 127, 151) (and notwithstanding that Ms Trevallyn-Jones herself had at least in September 2006 extended such an invitation). It was not unreasonable, in my view, for Ms Trevallyn-Jones to wish to have reasonable notice so that she could arrange for herself or a representative to be present in the unit during the works. Whether she wished to do so for security reasons (as suggested by her email (Ex 1 p 173), in which Ms Trevallyn-Jones also explained why she would be more comfortable allowing unsupervised access to a firm other than Act Now) or to be in a position to observe closely what and how the work was being carried out (or whether, as it was suggested to her in cross-examination but denied, Ms Trevallyn-Jones did not wish others to see what was in her unit) seems to me to be beside the point. I am not satisfied that the delay in attending to Ms Trevallyn-Jones’ works resulted on the whole from an unreasonable denial of access.

I should add that Ms Trevallyn-Jones seemed singularly unfazed by questions put to her in the witness box as to the nature of her relationship with Ms Wickham or as to the paraphernalia in the unit which it was suggested Ms Trevallyn-Jones did not want anybody to see. Ms Trevallyn-Jones said that she had allowed numerous people to come in and inspect the unit (T 59); and the evidence supports this contention.

It struck me as far more likely that Ms Trevallyn-Jones wished to be present during inspections so that she could personally observe what was being done by tradesmen or the like (particularly given that in her sphere of expertise she was well placed to assess the scope and quality of that work) than that Ms Trevallyn-Jones was in any way embarrassed by any items which might have been observed in the unit. When Ms Trevallyn-Jones did hand over the keys to the unit (at a time when, presumably, any potentially embarrassing paraphernalia had been removed since by then Ms Trevallyn-Jones had vacated the unit), Ms Trevallyn-Jones continued to exhibit concern as to security and access issues as before.

It was hardly unreasonable (nor should it have been difficult for the agent or the Owners Corporation to comply with such a request) for Ms Trevallyn-Jones to ask that she be given reasonable notice of the time(s) at which access to the unit was required for the purposes of the works so that she could be present or could arrange for someone else to be present on such occasions.

Admittedly, an offer was made by Mr Radford and Mrs Robertson-Swann to assist by being present in the unit to supervise the works. That offer was politely declined, it seems on the basis that Ms Trevallyn-Jones preferred to be there herself (see 1 July 2005 email). It was clearly her right to do so. The suggestion by Mr Radford that Ms Trevallyn-Jones should have invited members of the Owners Corporation into the unit to inspect the damage, or should be criticised for not so doing, seems to me to be unfounded (T 127) (T 151). There is no suggestion that anyone in the Owners Corporation had any expertise in assessing or rectifying water penetration damage. The only suggestion that anyone in the Owners Corporation had ever asked to inspect the unit was a letter dated 15 June 2006 from Mr Radford advising that the Executive Committee would like to check the damage to the parquetry floor to see if it could do something and Ms Trevallyn-Jones responded to that (albeit belatedly) by extending such an invitation.

Ms Trevallyn-Jones gave credible explanations for the non-receipt or delayed receipt of certain correspondence (largely, it seems, tied to her marital difficulties, during which time she said some of her mail was not getting through to her, and difficulties with lack of security for the Strata Plan mailboxes). Ms Trevallyn-Jones expressly alerted the Owners Corporation at relevant times to this issue. (In August 2005, Ms Trevallyn-Jones wrote to the agent advising that she did not check her email every day and that she previously advised her contact details (Ex D p 66) and confirming how best she could be contacted. On 7 September 2005, Ms Trevallyn-Jones had written to the agent (having, she said, only just received a letter dated 13 June 2005 but postmarked 15 June 2005 addressed to her Cremorne address) requesting that all future correspondence be marked to her post office box number (Ex D p 72).) Although Mr Radford says he put the 15 June 2006 letter under her door, Ms Trevallyn-Jones had a credible explanation for not having read this, saying she had some time earlier received a nasty note and thereafter that she did not read anything under her door (T 58). It does not seem credible that Ms Trevallyn-Jones was deliberately avoiding or obstructing receipt of correspondence from the Owners Corporation.

Mr Radford’s chronology suggested that access by Sutech to the unit had been refused in July 2006. There is correspondence in October 2006 in which Sutech wrote to the agent indicating they were waiting for access to Unit 7, but there is no evidence from Sutech or anyone else that Ms Trevallyn-Jones had been asked for access and had refused to allow access. After her complaint in September 2006, Ms Trevallyn-Jones says she was waiting for the Owners Corporation to contact her (T 59). That seems to me to be not unreasonable.

In relation to the third tranche of works Ms Trevallyn-Jones said that she was not asked for access to the unit in 2008 until a key was requested at the beginning of October. That was provided by her.

It would therefore seem that on the occasions when Ms Trevallyn-Jones received a request for access on a specific date (other than when she asked to reschedule the May 2005 access for family illness reasons) she complied with that request (see, for example, Ms Trevallyn-Jones’ letter of 28 February 2005 to the Owners Corporation confirming she was happy for the remedial works to be carried out, and her letter of 15 May 2005 expressly allowing access on 23 and 24 May 2005) and, as a matter of fact, access was provided to the unit on numerous occasions.

Insofar as there were complaints (by letters dated 9 November 2004 and 20 December 2004 as to difficulties in co-ordinating start dates or seeking access) by Mr Radford, some of those seem referable to miscommunication.

Admittedly, on about 11 July 2007, Ms Trevallyn-Jones changed the locks to the unit. She says she did so because of issues with access by the Owners Corporation after she had given the keys to Mrs Robertson-Swann in May 2007. By letter dated 11 July 2007 (Ex 1 p 313; Ex D p 304), Ms Trevallyn-Jones set out her position in relation to the refusal of access to her unit by Mr Radford by her representative (Mr Nick Krikis): I provided the keys to the Executive Committee on 14 May 2007 to allow access to the unit for the purpose of the Owners Corporation carrying out repairs to the common property to prevent water penetration into the unit. In retaining the keys, proposing to use them for access to the unit for other purposes and advising that my representative would be refused access, I consider the Executive Committee was taking liberties.

There was in evidence a document dated 30 November 2007 signed by Mr Theedam of the Kraftsmen headed “Receipt for Keys to Unit 7” in which he set out his acceptance of conditions (presumably set by Ms Trevallyn-Jones) on which access to her unit was provided, including that 48 hours’ notice (excluding Saturday, Sundays and Public Holidays) be provided to Ms Trevallyn-Jones of the date upon which works were to be undertaken and the times between which access was required; access was for the purpose of carrying out remedial works authorised by the Owners Corporation and not for any other purpose; the persons having access to the unit to carry out the work would not disturb or use the contents of the unit; and the premises were to be secured at any time the premises were unattended. I would infer that the reason for such precision was due to Ms Trevallyn-Jones’ complaints as to how “liberties” had been taken (and her representative’s access refused) when she had provided the Owners Corporation with the keys earlier in the year.

Once those issues were clarified the new keys were given to the Kraftsmen. There is no evidence that the Kraftsmen work was ready to be commenced at an earlier time between July and November 2007.

While I accept that Mr Radford was genuine in his expression of frustration at the difficulties he perceived in dealing with Ms Trevallyn-Jones, I do not accept that her insistence on proper and reasonable arrangements for access to the unit (or the misunderstandings occasioned at least in part by difficulties in respect of receipt of some mail) were such as to lead to the conclusion that Ms Trevallyn-Jones had caused or substantially caused the delay in attending to her rectification works. As Mr Young submitted, it defies logic that someone who was consistently demanding that action be taken to rectify the water penetration problems (and had twice approached tribunals to seek a solution to the problem) would at the same time deliberately have frustrated access to the unit when asked and given reasonable notice for access to enable those works to be carried out. Ms Trevallyn-Jones had no reason to jeopardise the works to her unit and, at least insofar as an impression can be formed from her correspondence, seemed to approach what was required in relation to the rectification works in a logical fashion. · Failure to “approve” works

As Mr Young pointed out, it was not for Ms Trevallyn-Jones, as a unitholder, unilaterally to authorise or to withhold authorisation for common property works. It is somewhat disingenuous for the Owners Corporation to suggest otherwise in circumstances where Mr Radford (and/or the Executive Committee) had baldly asserted that Ms Trevallyn-Jones was not entitled to be provided with information or documentation about the works or the specifications for the works (see eg Ex 1 p 283 letter 5 June 2007). For what it is worth, Mr Radford himself appears to have expressed the view to the agent that where the remedial work was being done to common property the question whether it met Ms Trevallyn-Jones’ demands was “irrelevant” (see Ex 1 p 272).

Ms Trevallyn-Jones’ correspondence, carefully reviewed, makes it clear in my view that what Ms Trevallyn-Jones was doing was putting forward her own suggestions, comments, criticisms, recommendations or complaints (and reserving her position in relation to any damages suffered if a different decision or course of action was adopted, which turned out to be unwarranted) but was nevertheless leaving the onus (where it properly lay) on the Owners Corporation to make the final decision in relation to the works. This is evident from as early as her acceptance that the Act Now works would proceed even when she considered them unlikely to be effective.

Ms Trevallyn-Jones’ correspondence during 2007 (and in my view as early as 2005) makes it clear that what she was conveying to the Owners Corporation was that she accepted that the decision as to what works were to be done (and how they were to be done) was a matter for the Owners Corporation. Ms Trevallyn-Jones simply put the Owners Corporation on notice (on many occasions it must be said) that she would hold the Owners Corporation responsible if the problem was not (properly) rectified.

So, for example, by letter dated 17 October 2005, Ms Trevallyn-Jones wrote to the Owners Corporation (Ex 1 p 190) stating that if the repairs to the parquetry were undertaken without first ensuring the water penetration problem was fixed and water penetration subsequently occurred and caused damage to the parquetry she would seek recompense for any resulting inconvenience or loss. That is not a letter refusing to allow the parquetry works to be done; rather it is putting the Owners Corporation on notice of the difficulties it might face if the water penetration works had not been satisfactorily completed and subsequent damage arose.

The email of 27 April 2007 from Ms Trevallyn-Jones to Mr Kevin Keys, then the chairman of the Owners Corporation, noted her concern at works to be carried out otherwise than in accordance with the recommendations of both experts who had inspected the property (Moldovan & Associates in 2004 and Sutech in 2005 and 2006), in relation to a torch-on membrane and new flashing. However, her letter went on to say, “with respect to scope of work, this is up to the Owners Corporation”.

Similarly, Ms Trevallyn-Jones’ letter of 30 November 2007 to the Kraftsmen, a copy of which was forwarded to the Owners Corporation, noted that any correspondence or discussions on the scope of work to be carried out by the Kraftsmen should be with the Owners Corporation as neither she nor her representative, Mr Krikis, had authority to give directions, respond to queries or provide approvals in relation to the matter.

Again, Ms Trevallyn-Jones’ letter dated 20 December 2007 expressly noted that the comments made by Ms Trevallyn-Jones did not reflect on the adequacy or otherwise of the Sutech scope of work. It was said that the comments were made for the purposes of helping to ensure that the Owners Corporation not make any payments which are not due, Ms Trevallyn-Jones having noted that “If the agreement between the Owners Corporation and the Kraftsmen Property Maintenance was based on the Sutech scope of works, that work has not been done and I would suggest that no payment be made to the Kraftsmen at this stage.”

Accordingly, I see no basis for the Owners Corporation’s assertion that Ms Trevallyn-Jones’ failure to approve precisely what works were required was a cause of or contributed to her loss. · Criticism/”harassment” of tradesmen

As to the alleged difficulties caused by Ms Trevallyn-Jones’ criticism over the period of the workmanship or recommendations of workmen or consultants, I cannot help but think that at least some of that criticism proved to be well founded.

The fact that it took three attempts to rectify the water penetration problems seems to me to be a fairly clear indication that the initial works were defective.

Insofar as it was suggested that Ms Trevallyn-Jones was “harassing” workmen, there was no evidence of any “harassment”. This would seem, rather, to be a complaint that Ms Trevallyn-Jones had the temerity to require explanations from the workmen as to the work that was being done, to criticise works which she considered had not been properly done and to offer her suggestions to the Owners Corporation in relation thereto.

As already observed, Ms Trevallyn-Jones may well have been a demanding and difficult person with whom to deal. She was certainly someone prone to criticise where she considered matters warranted criticism and she was prepared to issue demands or threaten litigation (and clearly followed through on at least some of these demands, insofar as she commenced these proceedings and had earlier sought both a mediation by and orders from the CTTT). I have no doubt that Mr Radford was genuine in his assertion that, by the end, the Owners Corporation was just trying to appease Ms Trevallyn-Jones. However, that does not mean that Ms Trevallyn-Jones is responsible for her own loss.

Mr Radford appears to have made a number of assumptions as to difficulties in obtaining access and hindering workmen based solely, it would seem, on what others (who did not give evidence) had reported to him. Mr Radford said: We’d been advised by the Kraftsmen that she had been hindering the work, she had been going in there every day complaining. They were at the stage where they didn’t want anything more to do with the work. From their point of view they just had enough (T 178).

There was no evidence adduced from the Kraftsmen to substantiate that assertion and hence no opportunity to assess the sensitivity or otherwise of the Kraftsmen to a critical review of its work. (Mr Dixon submitted that Ms Trevallyn-Jones’ conduct was more than someone being a bit “finicky” but in the absence of evidence from the Kraftsmen this is impossible to assess.) Ms Trevallyn-Jones denied harassing the workmen and there was no evidence (other than a hearsay complaint by the agent to that effect who did not give evidence) that she had done so.

It was suggested that Ms Trevallyn-Jones was interfering with the works by sending an email to the agent raising issues as to the works being carried out. The fact that Ms Trevallyn-Jones commented in detail in correspondence as to the works carried out (and even on occasion foreshadowed or threatened litigation or made demands in relation to the works) does not, in my view, lead to a conclusion that she “harassed” the workmen or prevented the works being carried out. It surely cannot be the case that a unit owner could not raise with the agents queries as to works being carried out to common property in her unit without being accused of hindering the works.

Ms Trevallyn-Jones certainly commented (at times at length) on the reports provided to her and on the works carried out. She agreed that she put her own opinions forward. That, however, cannot seriously be seen as a hindrance (and, indeed, it is an argument that runs contrary to the assertion put by Mr Radford that Ms Trevallyn-Jones should have told the Owners Corporation she was an architect and offered proposals to resolve the problem). It might have been unwelcome (and the agent may well have found it irritating or tiresome to have to deal with Ms Trevallyn-Jones’ many queries/concerns) but the mere fact that Ms Trevallyn-Jones was pointing out potential defects with the works or problems for the Owners Corporation if the works were not carried out properly is not something which should have delayed the works.

If the Owners Corporation had been confident in the quality of the advice it was being given by its contractors and in the work by its tradesmen, it was open to the Owners Corporation to instruct that the works proceed. Whether due to a policy of appeasement, or perhaps because Ms Trevallyn-Jones’ previous complaints had proven well founded, the fact is that by 2007 the Owners Corporation was apparently unwilling to proceed without Ms Trevallyn-Jones’ approval of the works (or further independent assessment). In those circumstances it was incumbent on the Owners Corporation to move with expedition in obtaining that approval or assurance; or to take other steps to resolve the issue.

Ms Trevallyn-Jones accepted that water penetration can be a difficult issue to fix (T 71). That seems to me to be all the more reason for the Owners Corporation to appoint appropriate experts (as she suggested) and to ensure a proper overview of what was being done. However, if advice from the experts proved incorrect, that is a matter for dispute with them – it does not excuse the failure by the Owners Corporation properly to maintain and keep in good and serviceable repair the common property. · Reason for vacation of unit

It was contended (as I apprehend it as part of the causation defence) that Ms Trevallyn-Jones had left the unit in May 2007 for personal reasons (following the breakup of her relationship with the owner of the adjacent unit and the acquisition by that woman of the adjacent unit) rather than due to a need to vacate the unit because it was uninhabitable. In this regard reliance was placed on a conversation said to have been overheard by Mr Radford and a conversation deposed to by Mrs Robertson-Swann.

Mrs Robertson-Swann gave evidence of a conversation (denied by Ms Trevallyn-Jones – T 80) in which Ms Trevallyn-Jones is alleged to have said to her words to the effect of, “I have to get out of this building. I can’t live here anymore because she’s moved in next door”. Mrs Robertson-Swann assumed that Ms Trevallyn-Jones was then referring to Ms Wickham the current owner of the adjacent unit (see affidavit affirmed 19 September 2008).

A conversation between Mrs Robertson-Swann and Ms Trevallyn-Jones as to such a personal matter does not seem consistent, on the one hand, with the insistence which it is suggested Ms Trevallyn-Jones placed on privacy as to her personal affairs (and which is was suggested had caused access problems) or, on the other hand, with the fact that Mrs Robertson-Swann did not seem to know far less intimate details about Ms Trevallyn-Jones’ personal life (at least to the extent that she said she did not know that Ms Trevallyn-Jones was an architect).

Mr Radford claimed to have overheard Ms Trevallyn-Jones saying something similar on a separate occasion. Mr Radford, by affidavit affirmed 23 September 2008, deposed that some time after 19 April 2007 he had heard loud crying from Ms Trevallyn-Jones’ unit. He said he believed the person crying was Ms Trevallyn-Jones. He said that he overheard a conversation in which someone said “I can’t live here anymore she had driven me out” in a voice he recognised to be that of Ms Trevallyn-Jones.

Whether or not such a conversation in fact took place with Mrs Robertson-Swann (or as was said to be overheard by Mr Radford), in my view is not material to the issues before me, since I do not see that the reason for Ms Trevallyn-Jones ultimately deciding to proceed with her earlier foreshadowed intention to rent out the unit is something which gainsays her claim to the loss of rental income from the unit after she in fact vacated it.

To the extent that there was evidence from Mr Radford and Mrs Robertson-Swann as to conversations in which Ms Trevallyn-Jones allegedly said or (in Mr Radford’s case) was allegedly overheard to say that she had been “driven out” of the unit, Ms Trevallyn-Jones adamantly denied any such conversation. As far as Mrs Robertson-Swann is concerned, as noted earlier, I considered her recollection in general to be vague. Ms Wickham’s affidavit refers to Mrs Robertson-Swann as a friend. It may well be that the notion that Ms Trevallyn-Jones was moving out of the unit to escape Ms Wickham was something drawn from Mrs Robertson-Swann’s conversations with Ms Wickham.

If I had to prefer one version over the other I would be inclined to accept Ms Trevallyn-Jones, solely due to the vagueness with which Mrs Robertson-Swann gave her evidence generally. As to whether Mr Radford heard what he said he had heard, and was right in thinking this was Ms Trevallyn-Jones speaking, there is little which goes either way. Ultimately I do not consider it necessary to decide this issue. The evidence, in my view, supports the conclusion that Ms Trevallyn-Jones’ decision to vacate the unit (whether or not the timing of this was influenced by the end of her relationship with Ms Wickham) and to lease it out was one which had been foreshadowed since at least 2004.

It was said that the stated intention of Ms Trevallyn-Jones to lease her property must be questioned given that she said she had wanted to rent it out in 2004 (but did not) and allegedly lived in the unit up to May 2007 despite it being in poor condition. (The latter point hardly supports the notion that the unit was lettable. It would equally be consistent with Ms Trevallyn-Jones’ occupying the unit while in poor condition because she could not lease it.)

There is in my view no reason to disbelieve Ms Trevallyn-Jones’ assertion, made as early as 2004, that she wished to be in a position to rent the unit. Although the content of what she was told by the real estate agent (by reason of the ruling I made at the outset of the hearing) is not evidence of the truth of what was said, nevertheless I accept Ms Trevallyn-Jones’ evidence that she had sought advice as to her ability to lease out the unit and on the basis of the advice she received she did not consider it was lettable (T 87) until the damage to the parquetry floor had been repaired. I do not consider that Ms Trevallyn-Jones was shaken in her evidence on this (or any other) aspect of the matter.

In its submissions, the Owners Corporation contends that the unit was habitable and available for use and rent from May 2007 onwards. This is inconsistent with the opinion given by the valuer called by the Owners Corporation who considered that basic repairs were necessary.

In my view, whatever the circumstances with Ms Wickham, there is no basis for any suggestion that Ms Trevallyn-Jones vacated the unit in order to manufacture some kind of damages claim against the Owners Corporation. She had indicated a desire to lease the unit out since at least 2004; the Owners Corporation was on notice of this; she had sought advice from a real estate agent in June 2007 and again in December 2007 about renting the unit out; and she had also made enquiries in September 2007 as to the possibility of renting just the car space; she pursued relief from the CTTT in January 2007 and put the Owners Corporation fairly on notice in February 2007 that she wished to move out and lease the unit in March 2007; and she ultimately deferred that until May 2007.

One of the uses to which Ms Trevallyn-Jones was entitled to expect she could put the unit was to obtain rental income. If she was unable to do as a direct result of the damage to the parquetry flooring, then (subject to any mitigation defence) this seems to be a natural and reasonably foreseeable consequence of the Owners Corporation’s breach. Conclusion as to causation/estoppel

For the reasons set out above, I do not accept that Ms Trevallyn-Jones caused or contributed in a material way to the damage sustained by her. As to estoppel, it was unclear whether what was being put was a defence by way of promissory estoppel or a conventional estoppel.

In either event, it is difficult to see what is the assumption said to have been induced or acquiesced in by Ms Trevallyn-Jones, or, alternatively, the common assumption of a kind necessary to ground a conventional estoppel, on which the Owners Corporation could be said to have relied to its detriment, so as to provide the basis for such a defence.

If it is suggested that Ms Trevallyn-Jones by her conduct had represented that she did not want the parquetry flooring fixed at all until after the rectification of the water penetration problem (a stance which the Owners Corporation itself seems to have asserted), that is inconsistent with the demands made by Ms Trevallyn-Jones in January 2007 and the letter forwarded by Ms Trevallyn-Jones in May 2007 requesting all rectification work be completed as soon as possible; and with her solicitors’ letter in 2008 confirming that access would be provided even if the Owners Corporation chose to re-lay the floor without first fixing the water leak. Nor does it seem to me that the Owners Corporation has established any common assumption for the purposes of conventional estoppel – indeed, the problem seems to have been rather one where the parties were operating not under a common assumption as to the works but at odds as to what was to be done and how it was to be done over a considerable period.

I am not satisfied that the Owners Corporation delayed taking any action it would otherwise have taken in reliance on any representation or common assumption which would make it unconscionable for Ms Trevallyn-Jones now to claim loss and damage for breach of statutory duty. Mitigation

Mr Young submits that for the Owners Corporation to succeed on the mitigation defence the onus is on the Owners Corporation to show that Ms Trevallyn-Jones failed to act reasonably in such a way as to reduce her loss (citing Payzu Limited v Saunders [1919] 2 KB 581; Munce v Vinadex [1974] 2 NSWLR 235).

As to the matters actually pleaded by way of lack of mitigation (agreement to repairs/replacement of the parquetry floor being performed), I have dealt with those above. As to the assertion that the unit could have been leased earlier, I comment as follows.

There was evidence that in June 2007 and again in December 2007, Ms Trevallyn-Jones had sought advice from Raine & Horne Newtown (from a Ms Naomi Travers) about leasing the unit on the basis of which she regarded it as un-lettable.

Paragraph 47 of Ms Trevallyn-Jones’ affidavit of 26 April 2008 refers to her discussions with a real estate agent. Objection was made to this evidence as hearsay. However, the evidence was pressed not for the truth of what Ms Trevallyn-Jones was told by the real estate agent, but for the fact that she had sought advice and, on the basis of the advice she had received, believed that the unit could not be let in its then state. I read the paragraph not as a statement of expert opinion but as evidence of the fact that Ms Trevallyn-Jones sought advice from a real estate agent as to the lettability of the unit and that on the basis of that particular advice (whether it be right or wrong) had formed the view that it could not be leased. Exhibit MATJ 14 was also admitted on that basis.

Ms Trevallyn-Jones also gave evidence in her affidavit that in about September 2007 she had visited the City of Sydney Archives to peruse a copy of conditions of consent for the conversion of the building to residential units and that from her review of the consent conditions she had understood Condition 4 “that all resident and visitor [car parking spaces] shall be clearly marked and used by the appropriate vehicles” to mean that car parking spaces in the building were only permitted to be used by residents of and visitors to the building so that she could not lease the car parking space that formed a part of the unit to someone outside of the building. I accept Ms Trevallyn-Jones’ evidence that she formed the view, having regard to the conditions of consent for the building development, that she could not do so (paragraphs 19/20 affidavit affirmed 3 December 2008 and Annexure I (Ex D p 377)).

The Owners Corporation contends that, if there is any breach and loss, the only rental loss is $20 per week for a limited period, that being at the most the time it took to re-lay the parquetry floor (which it is said Mr Cotton confirmed was two days but which in fact he seems to have suggested took five days in total, 1-2 and 8-10 December 2008). I do not accept that this is the correct measure of loss when the Owners Corporation’s valuer conceded in cross-examination, in effect, that until basic repairs were effected it would not be reasonable to expect the unit to be put on the market for rent.

Ms Trevallyn-Jones received a report, on which she relied in the proceedings, from Mr Craig, (a qualified valuer) on 20 December 2007 that the theoretical rental value of the unit in its then state would have only been $50 per week and it would be difficult to achieve that in practice. It was submitted that no reasonable plaintiff would have rented the unit at that stage for such a small return. Mr Craig disagreed that the property could have been let in that state for $480 per week.

Mr Craig was called to give evidence on the loss of rental scenario. His report made reference to certain reports. His report noted, “we note from reports provided that a total of four units in the complex have similar water seepage defects”. He said in the witness box that the reports to which he had referred in his report were reports from Moldovan and from Sutech. Mr Craig accepted that he did not know, other than by reference to the July 2008 Sutech report, what work had been carried out or whether there was an ongoing water penetration problem (T 117).

Mr Craig’s report stated, “We have researched evidence of recently listed and leased units in Newtown as well as consulting with local active property managing agents. Although we have allowed a nominal weekly rental of $50 for the subject property in its current condition we note that it would be very difficult, if not impossible, to secure a tenant for a unit which has the defects detailed above.” On the rental value in its then current condition it was said to be $50 per week but on completion of repairs $500 per week. Mr Craig confirmed that he did not regard the unit as lettable in its then state (ie without repair to the parquetry floor) as he regarded it as unsafe (T 118). (This was essentially confirmed by Mr Powell, the valuer for the Owners Corporation, who considered that at least basic repairs were necessary before the unit could be reasonably expected to be leased out by the owner.)

Mr Powell, the real estate valuer called for the Owners Corporation, prepared a report on 30 October 2008 in which he stated he was of the opinion that the unit could be relet prior to the completion of work at a rental of $480 per week (ie a discount of $20 per week to reflect the state of the premises). Mr Powell, relevantly, had inspected the unit in October 2008 after there had been at least two attempts at temporary repairs carried out. Mr Powell’s conclusion was that there was “very strong rental demand in this popular central location” (something supported, I might add, by the speed with which the unit was ultimately leased in February 2009) and it was his opinion that the unit would be readily let in the then market in its current condition: I do not consider the unit could not have been rented and occupied in its original condition if the most basic of work had been carried out to ‘repair’ the floor whilst allowing time for the proper remediation work to be considered and carried out to completion. There will be a difference in the before and after rents for the units however the suggestion that the unit was uninhabitable is simply incorrect. I base this opinion on [undisclosed] discussions with property managers in local real estate agents and my intimate knowledge as a landlord with four current tenancies in Newtown. I have also personally been involved in the leasing of two other properties which I had owned in Newtown, both of these offer very basic facilities and are in much poorer condition (to the subject) prior to their demolition.

Mr Powell’s evidence was that, at the very least, basic repairs needed to be effected to the unit (by, it would seem, the application of a product such as that known as “Builders’ Bog”, or otherwise by sanding back the swollen pieces of parquetry and re-laying them).

Significantly, Mr Powell did not believe that it would have been prudent to lease the unit in its then state without at least basic repairs as he considered this would be exposing the lessor to claims (not least under the Residential Tenancy legislation).

There cannot have been any failure by Ms Trevallyn-Jones reasonably to mitigate her loss by reason of the fact that she did not proceed to lease the unit in its unrepaired state if thereby it would have exposed her to a potential damages claim of the kind Mr Powell clearly foreshadowed in the witness box (or a claim for reduction in rent or the like from the relevant tribunal); nor can she be criticised for not doing work to the common property which only the Owners Corporation was authorised to do. Any suggestion that rubber mats or carpet covering would have remedied the problem seems ludicrous at least having regard to the uneven nature of the flooring evident in the photographs tendered in the hearing; and Mr Craig rejected that suggestion outright.

On the one hand it seems to me inconsistent for the Owners Corporation to raise (as it did) such an issue about unauthorised water testing and yet to suggest that Ms Trevallyn-Jones should have carried out (unauthorised) repairs to common property in 2007 in order to mitigate her loss.

To the extent that the submission is that Ms Trevallyn-Jones should have asked the Owners Corporation to effect temporary repairs or for permission from the Owners Corporation to effect such repairs as necessary to mitigate her loss, she seems to have done so at least twice (the first in 2004 when the response was that the matter would be dealt with at the Extraordinary General Meeting and the suggestion was made to place a rug over the floor and then in late 2006 when it seems some repairs were permitted to be undertaken). Mr Powell apparently still thought further repairs were necessary for the unit to be able to be leased, as did Mr Craig.

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.

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.

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).

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.

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.

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

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.

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.

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.

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.)

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.

(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.)

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.

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).

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.)

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

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.)

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.

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.

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.)

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.

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.

“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.

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.

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 .

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 (1) This Part does not apply to any action for damages founded on a breach of statutory duty imposed on a defendant. (2) This Part does not affect the provisions and operation of the Statutory Duties (Contributory Negligence) Act 1945 . 8 Definitions In this Part: … wrong means an act or omission that: (a) gives rise to a liability in tort in respect of which a defence of contributory negligence is available at common law, or (b) amounts to a breach of a contractual duty of care that is concurrent and co-extensive with a duty of care in tort. 9 Apportionment of liability in cases of contributory negligence (1) If a person (the claimant ) suffers damage as the result partly of the claimant’s failure to take reasonable care ( contributory negligence ) and partly of the wrong of any other person: (a) a claim in respect of the damage is not defeated by reason of the contributory negligence of the claimant, and (b) the damages recoverable in respect of the wrong are to be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.

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.

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.

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: The repeal of the 1945 Act and s 7 of the 1965 Act by the Civil Liability Amendment (Personal Responsibility) Act thus had the effect of reinstating the rule laid down in Piro v W Foster and Co Ltd . Contributory negligence once more became a defence to a cause of action based on breach of statutory duty.

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.

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.)

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.

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.

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.

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.

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 .

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.

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.

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

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.

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.

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. 8. An order that the defendant’s costs of and relating to these proceedings must be paid from contributions levied only in relation to lots in Strata Plan No 50358 other than Lot 7.

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