Claim for Damages under s106(5)

On Tuesday 21st January 2025 I attended NCAT as the applicant seeking damages under s106(5) after a wastewater pipe blocked and flooded my apartment, causing damage to fixtures and fittings.

Here is a recount of my experience.

+++++++++

My hearing was at 1:15pm at Goulburn Street. Presiding was Senior Member Tyson.

I appeared by myself as the applicant.

My strata manager appeared on behalf of the OC, the respondent.

One of my neighbours and fellow committee member tagged along on behalf of the OC as well. He and I have had a longstanding animosity: he was one of the key supporters of the respondents in my smoke drift litigation in 2023; he and his wife submitted affidavits full of the most ridiculous nonsense and outright fabrications in an attempt to discredit me and undermine my case.

He is also very vocal about NOT spending money to repair the common property.

The first thing the tribunal member said was, “Is there any chance we can resolve this by having a discussion with the respondent?” This threw me. I spent weeks arguing with the OC and SM and I was blocked and stonewalled every step of the way. I said, “I guess, sure.”

Here’s my first mistake: Because I submitted all my documents electronically, the tribunal member didn’t have a hard copy. Luckily, I had listened to Amanda Farmer’s advice and printed three copies of everything; so I was able to give him my copies. Lesson learnt for next time.

Also: I would recommend printing out a document index and either numbering or labelling each document, so it’s easy to find. It was a nerve-wracking experience as-is without having to shuffle through papers to find a particular piece of evidence.

My second mistake: In the directions hearing back in September, the senior member directed me to submit a timeline of events, “in my own words”. So that’s what I did. I opened a Word document and started typing. Unfortunately, I didn’t realise I was supposed to submit it as a “Witness Statement”. It was okay, because the member swore me in; but next time I’ll use the proper template.

Because the member didn’t have my witness statement, even though I provided him a copy on the day, he asked me to go through the story in my own words. This was very stressful. I didn’t know if I should read it out word for word, or simply paraphrase it. I started with the latter, and then as I found my voice, I followed my version of events. When I got to the bit where the OC declined mediation, the member was visibly unimpressed.

My third mistake: I should have obtained quotes for the repairs. The member asked me how much the repairs would cost, and I had to admit I didn’t know, and that I hadn’t obtained quotes. I was under the impression that the OC was responsible for getting quotes. Lesson learnt.

Throughout the whole process, while he was processing my evidence, he would look over at the respondents’ table and ask, “Do you have any objection to me admitting this into evidence?”

Every time, the answer was no.

“Do you want to cross-examine the applicant?”

No, we’re good.

“Do you have any objections to the applicant’s version of events?”

No, all good.

I was recounting this story to a friend and fellow Tribunal veteran yesterday and when I got to this part, he was furious. The fact that there was no challenge to the version of events, no objection to the evidence, no objection to my claim for damages - and no effort to even provide a written response! - it was clear that this exercise was a complete waste of time for everyone involved: for me, for the OC, for the Tribunal. The OC had no leg to stand on. They just didn’t want to cooperate.

Then, when the member asked, “Is there any reason why I should not give these orders?”, my neighbour decided he had something very important to say.

He started off by stating that the committee was always looking for ways to resolve issues collaboratively and seek solutions to problems (um what?? You declined the mediation!!).

Then, he whined about our less-than-ideal financial situation, noting that we had spent the past two years raising special levies to fund various common property repairs.

Then, he said, “We never even received the invoice!” [for the $3,500 I paid for an emergency call-out to the carpet cleaning guy].

Tribunal member: well did you ask for it?

Neighbour: stunned silence for a moment, then “No”

Tribunal member: well that’s not a valid complaint.

Then, the member very calmly but firmly wiped the floor with him.

“The fact that your insurance company declined to cover the event is not an acceptable excuse under the Act. The fact that the OC might be experiencing financial difficulties is not an acceptable excuse under the Act. The Owners Corporation has duties set out in that section of the legislation and that’s the law.”

Boom. Mic drop.

Finally, my SM suggested that they could offer me a cash payment. The member excused us for a 10-minute recess, we went into a room, the SM added up a theoretical cost of replacing the kitchen floor and the carpet in the master bedroom, plus the reimbursement of the emergency call-out, and it came to just over $6,000.

I said, “I’m happy with that”.

We went back into the room. Tribunal member was very, very happy to hear that we had reached a decision. Neighbour continued to whinge. He asked if we could pay it in instalments. Cue side eye from Tribunal Member. Uh, no.

Orders made, we packed up, and left! They have 14 days to pay me. I’m pretty sure they will. I’ll keep you posted!!

++++

Link to my Witness Statement:

https://docs.google.com/document/d/1RGAIenzUf5nFLtor0IJo54XIE77_GnFV-dg-pmiF7Pc/edit?usp=sharing

Photos of flooding and resulting damage: