Relevant for Any Owners Corporation with Combustible Cladding on Their Building.

On 18 October 2021, the NSW Supreme Court delivered a landmark judgment in the case of Taylor Construction Group Pty Ltd v The Owners – Strata Plan No. 92888 [2021] NSWSC 1315, confirming that biowood cladding is combustible cladding that poses a risk of fire spread between levels on the façade of an apartment building. Muellers represented the successful owners corporation in NCAT and also in the Supreme Court – a WIN for all owners corporations.

Senior Lawyer, Faiyaaz Shafiq, JS Mueller & Co Lawyers, said, “The outcome of the case represents a major win for owners corporations strengthening the basis for claims by owners corporations against builders and developers who have installed combustible cladding on their buildings.”

“I have no doubt it will see a marked shift in the way in which builders and developers respond to combustible cladding claims”, said Faiyaaz.

The owners corporation initially commenced proceedings in NCAT against the builder and developer seeking orders that biowood cladding installed on the façade of its building be replaced or compensation be paid to cover the cost to replace the cladding.

The owners corporation claimed that the cladding was combustible or created an undue risk of fire spread in breach of the statutory warranties under the Home Building Act 1989 because it did not comply with the Building Code of Australia and was not fit for its purpose.

NCAT ordered that the defective biowood cladding be rectified by the builder and developer. The builder/developer appealed NCAT’s findings to NCAT’s Appeal Panel which dismissed the appeal.

The builder/developer then appealed to the NSW Supreme Court.

The NSW Supreme Court on 18 October 2021 gave a comprehensive judgment dismissing the appeal. In doing so, the Court accepted the owners corporation’s arguments that:

1. biowood cladding is combustible;
2. there is a risk that fire will spread beyond the floor of origin because the material from which the biowood is made will support fire spread between the levels of the building;
3. there was evidence from the fire safety engineer of the owners corporation that there is an undue risk of fire spreading due to the biowood;
4. there was no evidence to support the contention of the builder/developer that a slower rate of fire spread does not present an undue risk in comparison with a higher rate of spread; and
5. there was evidence that sprinklers or any other fire safety measure would have no relevance to external fire spread.

Furthermore, the Court also agreed with the owners corporation’s submission that combustible cladding is not fit for purpose which is one of the categories of the statutory warranties under the Home Building Act 1989.

The Court has reaffirmed the view that the fundamental fire safety requirement for a class 2 apartment building requires external walls to be non-combustible, and cladding installed in a multi-storey apartment building which does not comply with the BCA is not suitable for the purpose for which it is used.

The Court’s judgment confirms the view the owners corporation always held that biowood poses an unacceptable fire safety risk.

The Court’s judgment is a landmark ruling that is relevant to any owners corporation that has combustible cladding on its building.

The ruling strengthens the basis for claims by owners corporations against builders and developers who have installed combustible cladding on their buildings and should see a marked shift in the way in which builder and developers respond to those claims.

Note: Faiyaaz Shafiq of JS Mueller & Co Lawyers acted for the successful owners corporation and was assisted by barristers Tom Davie and Anita Power of Queen’s Square Chambers.

If you or your owners corporation require advice about combustible cladding, please contact our expert team now.

For all NSW strata legal advice including by-laws, building defects and levy collections contact us here or call 02 9562 1266, we’re happy to assist.

The NSW Government has recently established a Cladding Taskforce known as ‘Project Remediate’.

This Taskforce will:

• Identify residential buildings with potential combustible cladding issues
• Address the use of non-compliant cladding materials with local councils

As of February 2021, 185,000 building records have been audited by the Taskforce with 4,127 buildings inspected.

It is important to note that not all cladding is dangerous. Fire + Rescue NSW (FRNSW) have been engaged to assist the Taskforce in determining building risk. Those buildings considered a higher risk will be further referred to consent authorities such as their Local Council or the Department of Planning, Industry and Environment (DPIE) for further investigation.

Register your interest in ‘Project Remediate’ here.

What is ‘Project Remediate’?

‘Project Remediate’ is a 3 year program designed to help remove combustible cladding from eligible residential buildings who will receive:

• Interest free loans over a 10 year period with loan payments commencing after the completion of work
• Assurance and project management services offering technical, risk and practical support to owners corporations and strata managers
• A free 2-hour course on Project Remediate (free until 30 September 2021, following a fee of $140.00 will apply). This course is designed for strata managers and committee members of affected buildings to help them explain ‘Project Remediate’ to lot owners, to enable lot owners to make informed decisions.

Who is Eligible for ‘Project Remediate’?

To be eligible for ‘Project Remediate’ support, the building must be either:

• A residential apartment building (Class 2) located in NSW approved by the Taskforce to have a high-risk combustible cladding façade which requires remediation
• A multi-use building which has part commercial/residential located in NSW approved by the Taskforce to have a high-risk combustible cladding façade which requires remediation

Do you need More Information on ‘Project Remediate’?

For more specific information please visit:

• Strata, Building, Property and Maintenance Managers
• Lot Owners and Landlords
• Real Estate and Property Managers
• Register your interest in ‘Project Remediate’ here.

Do You Need Further Assistance with Combustible Cladding Issues?

Combustible cladding (and building defects) is a complex area of the law.

The team at JS Mueller & Co Lawyers has unparalleled knowledge and experience dealing with many cases in this complex area of the law.

JS Mueller & Co Lawyers published flammable cladding cases:

• Muellers Win First Cladding Case in NSW
• Apartment Owners Win Legal Victory Over Combustible Cladding
• Faiyaaz Shafiq, Wins Landmark Ruling On Apartment Building Risk
• Builder Loses Lawsuit and Must Replace Flammable Laminates on the Exterior Walls of Residential Building
• Apartment Owners Face Millions of Dollars in Re-cladding Bills in Landmark Ruling
• Undue Fire Risk: Wood Cladding Used on Hundreds Of Buildings Including McDonalds Ruled ‘Combustible’
• NCAT Confirms Biowood is Combustible
• NCAT Rules Biowood Cladding is Combustible
• The Combustible Cladding – You Don’t Know About

If you would like assistance with flammable cladding (and/or building defect) issues, please contact us now, we are here to help you.

Late 2019 a major development occurred for the strata industry when the New South Wales Civil and Administrative Tribunal (NCAT) held that Biowood cladding is combustible, poses an undue risk of fire spreading and is a major building defect.

As of yesterday 4 August, 2020…

In a first for Australia, NCAT’s Appeal Panel upheld a 2019 finding by NCAT that Biowood cladding installed on the facade of a multi-storey building in Sydney is combustible and must be removed.

The owners corporation of the building was successfully represented by Mueller’s and is the first reported case where a Court or Tribunal has upheld a finding that a particular type of cladding is combustible.

The outcome of the case represents a win for owners corporations and sends another timely warning to builders and developers that use of combustible cladding is fraught with risk and carries with it substantial consequences.

The first case in Australia (and globally) the decision in this case sets a precedent A Win for Owners Corporation – Biowood Cladding Confirmed Combustible

For NSW strata legal, by-law, building defect and levy collection advice contact us here or call 02 9562 1266, we’re happy to assist.

In a win for owners corporations, the Supreme Court has just announced that the definition of “major building defects” in the legislation should be given a broad meaning.

Across strata there are many building defects which have previously been categorised as minor. These can now possibly be considered as major and covered by the 6 year warranty period.

As this is a complicated area of law, it is best to seek legal advise ASAP.

This recent case will provide you with more information Strata is your minor building defect now a major defect?

For NSW strata legal, building defect or levy collection advice please contact us here or call 02 9562 1266, we’re happy to assist.

In a recent NSW Supreme Court case the builder brought an application to the Court seeking an order that the owners corporation provide security for costs to protect the costs of the builder in the litigation in the event the builder was successful and unable to recover his costs from the owners corporation.

So, did the court grant with the builder’s application? Owners Corporation Litigation Security for Costs

For NSW strata legal or levy collection advice contact us here or call 02 9562 1266, we’re happy to assist.

In a recent Law case JS Mueller & Co Lawyers acted for the successful owners corporation for a levy recovery matter from an owner who had disappeared.

Did you know that in NSW a court judgment obtained against a lot owner for outstanding levies, interest and costs can be enforced in several ways? This will depend on the amount involved and what assets, if any, the owner holds.

One way of enforcing a judgment for at least $10,000 is by issuing a writ against the owner’s property.

So, what was the outcome of the levy recovery Law case? Levy Recovery and Writ of Execution

For NSW strata legal or levy collection advice contact us here or call 02 9562 1266, we’re happy to assist.

We all know that raising and receiving strata levy funds for building maintenance and scheme administration is fundamental to an efficiently run strata complex.

That’s why it’s imperative that any strata levies in arrears are recovered in a timely manner to ensure that sufficient funds are always readily available.

So what is the process for:

1. Levy Issues
2. Levy Payments
3. Levies in Arrears
4. Collection of Levies in Arrears

To find out download our paper here NSW Levy Debt Collection Process

Specialist paralegals and lawyers are not only expert collectors and negotiators; they are highly skilled in all essential aspects of levy recovery.

Speak to the specialist NSW levy collections experts here or call 02 9562 1266, we’re happy to assist.

After becoming a monk, a landlord in Sydney, named Law Siek Hong, “gave up” his property and disappeared in Malaysia, leaving a large levy debt behind.

Law Siek Hong property is located in Darlinghurst, the owner of the property committee spent 12 years, more than 60,000 Australian dollars (RMB300,000) trying to find him, forcing him to pay a cumulative tax of more than 280,000 Australian dollars (RMB1.4 million).

Recently, the owners committee won a supreme court suit, debuting the apartment for the first time by auctioning off the debt.

Senior lawyer, JS Mueller & Co, Faiyaaz Shafiq said: “This is a big issue in Australia because some overseas buyers are usually from Asia, but they never live in it and no one knows where they are and they are usually hard to find.”

To read the full Sydney Morning Herald Domain article click here.

For NSW strata legal or levy collection advice contact us here or call 02 9562 1266, we’re happy to assist.

The Supreme Court of NSW has recently held in two cases involving JS Mueller & Co that a bankrupt lot owner will not be entitled to a stay of an eviction from their strata unit where it is clear that the owner has made no attempt to pay overdue strata levies.

Please click here to view the full article – Stay of Eviction Refused for Levy Debtors

For NSW strata legal or levy collection advice please contact us here or call 02 9562 1266, we’re happy to assist.