Chicken or the Egg over 1960’s waterproofing

When our tenants moved on, we inspected the bathroom and discovered the 60 year old, clay sewerage pipe was broken. Whilst the bathroom was usable, the waste was draining into the garden and building foundations. The plumber advised that due to the position of the pipes, it would be easier to move the sewerage which would require going thought the wall instead of the ground.

We agreed and thought that the moving of the pipe would be a good opportunity to turn the toilet around 90 degrees to a more practical position. The work was going to damage the floor and wall tiles, so we also thought we would take the opportunity to update the original bathroom. It was Christmas break with the strata manager’s office closed.

We booked the plumber, who was a strata approved plumber, to commence work once his own holiday was over. In the meantime, we started preparing the site by ordering a skip and removing the toilet, bath, vanity and tap ware. The arrival of the skip woke the SC up. They refused to send a work order for the sewerage pipes to be fixed as they believed we had started renovations without approval. We fought them over this for a month. Numerous plumbers had to attend, give quotes and reports. Finally they agreed to replacing the pipes and engaged their own plumber.

The works did break through the floor of the toilet and shower, they also broke through the external brick wall. This of course left open holes and compromised the waterproofing. We have now spent another 3 months asking the SC to fix the waterproofing. They refuse to do so. Their argument is that we are renovating and therefore need a by-law and have to pay for the waterproofing ourselves as we had broken it. We tried to explain that waterproofing membranes didn’t exist in the 1960’s, but this was lost on them.

We immediately offered up two by-laws, one covering our unit and one covering all 6 units (since no bathrooms have been renovated in 60 years and all have dodgy clay pipes). We also asked for a General Meeting to accept the by-law. We also offered to pay for the waterproofing and any other costs involved. The SC have outright refused to call a meeting unless we provide photos of the renovated bathroom which they believe we have already completed. They also reject our by-laws because they think we “cut and pasted” them from Google and want a receipt of purchase.

They also want a renovation application with plans and photos. They have also declined to mediate prior to our NCAT hearing. We have tried to explain that we have not renovated, that we couldn’t possibly renovate until the waterproofing is fixed, that this is an SC obligation since the SC plumber broke the waterproofing when fixing the sewerage. In the meantime, we have lost 4 months rent and expect this issue to continue for at least another 2 months.

Our NCAT application has asked for a General Meeting to be called (in order to put in place by-laws) and for the waterproofing to be undertaken. We have also sought loss of rent. I suspect this is a bit of a ‘chicken or egg’ situation. Would we have renovated the bathroom if the sewerage pipes weren’t broken? Probably not. Could we have fixed the pipes without renovating? Probably yes, although there would have been unsightly patchwork tiles covering the newly dug holes.

I believe the ‘egg’ came first, that being, the pipes were broken. I am happy to pay for by-laws, meetings, and even the plumbing/waterproofing but I am quite upset about the loss of rent. (I am also extremely unhappy about the 5 – 6 months we have lost fighting this issue because we have taken long service leave in order to travel for 12 months and have lost this time).

My question therefore is: what chances do we have at getting rental compensation from NCAT? Or would be have a better chance by engaging lawyers? Or can we claim on our landlord insurance? Thanks

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