Who pays for the repairs if
water leaks through a balcony door (which is closed) into a
The damage is obvious - water leaks soak the carpet and
stain wooden floors.
Surely it is obvious that the responsibility lies with the
owners corporation / body corporate to carry out the repairs
to prevent the water entry?
But as Dr Anne Davis recently found out, making the owners
corporation accept responsibility can be a frustrating
process. She needed to take the owners corporation to the
NCAT Tribunal, to obtain this order:
the Owners Corporation of SP63429 is ordered to effect
all repairs to common property necessary to prevent
water ingress into the main bedroom on the upper storey
of Lot 18, on or before 30 May 2017
The decision is reported as Davis v The Owners – Strata
Plan No 63429  NSWCATCD 7.
The complaint was that water leaked into the bedroom through
the base (the sill) of the glass sliding doors which
extended the whole length of the bedroom / balcony boundary
on the upper storey of Villa 8 (Lot 18 SP64352) Pacific Bay
Resort, Coffs Harbour.
When Dr Davis purchased the villa in 2008 she did not notice
any water damage.
In 2010, she renovated the balcony by removing the timber on
the balcony deck and replacing it with a compressed sheeting
base, which was tiled. A waterproof membrane was applied
under the sill. The work was carried out with the approval
of the owners corporation, and a by-law was registered.
Between 2010 and 2013, water penetrated along the sill line
every time there was an extreme weather event, and saturated
In 2013, she requested the owners corporation to repair the
glass sliding doors to prevent the water ingress and to pay
the cost of replacing the damaged carpet. The owners
corporation refused to accept responsibility. The complaint
was taken to the Stata Titles Adjudicator, who agreed with
the owners corporation. Dr Davis successfully appealed to
NCAT (NSW Civil and Administrative Tribunal).
What reasons did the owners
corporation give in the Tribunal to deny responsibility?
(1) It was not responsible because the glass sliding
doors were not part of a boundary wall
The owners corporation argued that Dr Davis had not
proven that the glass sliding doors were part of a boundary
wall of Lot 18, and so were not common property (for which
the owners corporation was responsible to repair).
The Tribunal accepted Dr Davis’ argument that according to
the registered Strata Plan, the sliding doors were
positioned along a thick black line where the balcony
joins the residue of the first floor cubic space. Note –
a thick black line represents a boundary wall of a strata
The glass sliding doors were part of a boundary wall
because they separated the internal space (the bedroom) from
the external space (the balcony) on the strata plan.
Conclusion: The owners corporation was responsible for the
maintenance and repair of the glass sliding doors, unless it
could prove that the owner had caused the problem.
(2) It was not responsible because the renovations caused
the water penetration
The glass sliding doors were installed 16 years
previously. They complied with building standards at the
time of installation, which did not require timber frame
openings to be fully membraned.
There was evidence that the likely cause of the water
penetration was building movement - deflection in the timber
floor joists which had twisted the door frame, resulting in
gaps which led to the seals being broken which led to water
ingress. The doors were due for a comprehensive service.
Did the renovations contribute? The water penetration was
through the sill. The evidence was that the contractor not
touched the sill and the bottom track, in carrying out the
Therefore, the renovations had not caused or contributed to
the water penetration.
The Tribunal’s conclusions
On the evidence before it, the Tribunal is satisfied
that the glass sliding door mounting and mechanism, the
sill and tracks, are deficient and renewal and or
replacement is the likely solution to prevent water
penetration to Lot 18. The owners corporation is obliged
under section 62 of the Strata Schemes Management Act
1996 to maintain and keep common property in a state
of good and serviceable repair and to renew and replace
any fixtures or fittings comprised in the common
property, and has not done so.
The proposed order of an amount of $11,012.00 by way of
compensation for replacing her damaged carpet is
refused. Section 138 of the 1996 Act does not empower
the Tribunal to make such a compensatory amount.
The result would be the same under the new Strata Schemes
Management Act 2015. Section 106 of the new Act is the
equivalent of section 62 of the 1996 Act.
If an owners corporation desires to minimise disputes as to
what is and what is not common property, and therefore
clarify its responsibility, then it should adopt a common
property memorandum. This guidance is from the NSW Land &
Property Information website:
Section 107 of the Strata Schemes Management Act 2015
provides that the by-laws for a strata scheme may adopt
a common property memorandum as prescribed by the
Strata Schemes Management Regulation 2016. The
Memorandum specifies whether an owner of a lot or the
owners corporation is responsible for the maintenance,
repair or replacement of any part of the common
Under the 2015 Act, there is no longer a requirement for a
dispute such as this to be arbitrated. It can be taken
directly to the Tribunal, although mediation is encouraged.
The Tribunal may make orders for payment of compensation
under the 2015 Act.