32. 2003 – Illegal work

Those who repay my good with evil lodge accusations against me, though I seek only to do what is good.

The owner of 39 Glebe Point Road, Mr Voukelatos, and Council both requested the lessee Amir Bodenstein to organise an inspection of the property by another structural engineer to ensure that it would not be placed in any danger from the proposed works.

Bodenstein therefore engaged Mr Macleod who inspected the property and on 3 March 2003 and reported that:

  • The southern boundary wall was in poor condition, principally due to disturbance of its foundation by tree roots (both past and present)
  • That disturbance had also played a part in the cracking of the transverse walls (cross walls) attached to the southern boundary wall
  • The first floor timber joists (spanning north-south) rely on the southern wall for support.

In Macleod’s opinion the proposed works were feasible provided that the southern wall was rebuilt on new footing and then tied or braced to the internal party wall on the northern side of the building with those being subject to final engineering design and certification.

The lessee Bodenstein urged the owner to have someone to inspect the building’s structural problems. In spite of Bodenstein’s objections the owner engaged the structural engineer Phillip Johnston, who had previously carried out several inspections of the property and then declined to undertake further instructions from the lessee.

Johnston carried out his new inspection in early March 2003 and sent a report to the owner. In it he stated that Bodenstein and one other person had been present and he claimed that Bodenstein acted in an adversarial manner.

Johnston reported:

  • the sidewall did not look good due to the loss of mortar which revealed the cracks and allowed sunlight to show through in a number of places
  • four holes had been dug to a depth of one metre beside the side wall
  • a root had grown through the bottom of wall in the rear room
  • a door opening had been opened in the main cross wall
  • the crack in the rear wall appeared to be a little larger than before
  • on the first floor, plasterboard lining of front room wall had been removed, the hallway wall had been removed, and lining boards had been placed on the top of the ceiling joists over most of the area of the front room.

According to Johnston, Bodenstein claimed he had passed reports on to Council that he had not right to, and the latter further claimed the side wall was not as Johnston had previously reported.

On 16 March 2003 Bodenstein wrote to Johnston about the location and use of certain engineering reports about the property.

From January to April 2003 Bodenstein and the owner had a number of long telephone conversations discussing the building’s structural problems. Bodenstein offered to undertake rectification works in exchange for a five extension of the lease on the property, which would make it a total of 20 years in length.

On 11 March 2003 the owner wrote to Bodenstein tellling him that he had sent signed D.A. forms to his lawyer Casimatis who would pass them on to Bodenstein once the rent was up-to-date and once the latter had submitted the final plans and attachments for the D.A., indemnity forms and insurance forms. He refused to extend the lease to 20 years.

The owner informed Bodenstein that Johnston had advised him as follows:

  • Bodenstein had in the past twelve months carried out works at 39 Glebe Point Road which had been authorised neither by the Council nor by Johnston
  • the internal wall looked cosmetically bad due to the removal of internal render but was otherwise sound
  • the nature of the unauthorised alterations would have to be assessed and certified before D.A. works could proceed.

The owner also informed Bodenstein that his rent payments remained in arrears.

1. Rebuild on new footing
2. Pursue me/my qualification
3. The illegal building works

1. Rebuild on new footing

Mr Voukelatos and Leichhardt Council requested a structural engineer to confirm that the building will not be placed in any danger as a result of the proposed work under the D.A. and we approached an engineer with a smaller operation than Mr Bekker and who was an acquaintance of Gilad.

04.03.03 Mr Macleod to Leichhardt Council CK 1-2, 129-30

“As instructed by the Applicant, the writer inspected the above property and reviewed architectural plans prepared by Craig Shelser & Associates, Architects pertaining to the Development Application for the above site for the purpose of preparing this structural report.

My inspection was carried out on Friday 28th February 2003 at 9.30 am and the following was noted:

.   The Southern boundary wall was in poor condition, principally due to disturbance of its foundation by tree roots (both past and present).

.   This disturbance has also played a part in the cracking of the transverse walls (cross walls) attached to the Southern boundary wall.

The First floor timber joists (spanning N-S) rely on the Southern wall for support.

In my opinion the Development is very feasible in Structural engineering terms provided that the Southern wall is re-built on new footing and then tied or braced to the internal party wall on the North side of the building subject to final engineering design and certification.The other changes to the building e.g. opening and balconies can be readily incorporated into the final design.”

2. Pursue me/my qualification

I urged Mr Voukelatos to send someone to inspect the structural problems and against my objections he insisted on sending Mr Johnston. I told him words to the effect of: “I had lost confidence in Mr Johnston” and “he is not a real structural engineer” and that “he is a dodgy engineer”. The main change from Mr Johnston’s last visit was the digging in two parts adjacent to the sidewall to the level of the foundation and a tree root that we found under the concrete section of the ground floor. I presented Mr Johnston with Mr Bekker’s report and photos and I asked him to tell Mr Voukelatos that the sidewall has structural problems.

05.03.03 Mr Johnston to Mr Voukelatos LC 1, 455 

“Bodenstein rang me late yesterday (Tuesday) afternoon when I was out. When I ring him back, would you like me to ask Mr Comenzuli, from Leichhardt Council, be given access at the same time/ – or can the tenant object to this? Would appreciate your opinion or instruction on this before I make arrangement for the visit.” 

08.03.03 Mr Johnston to Mr Voukelatos LD 1, 456

“I rang Bodenstein on Tuesday to arrange an inspection and he mentioned Friday afternoon. I looked at the building at about 3.15-3.30pm on Friday, and have not had time to compose a report – will send one as soon as possible, on Sunday or Monday.” 

10.03.03 Mr Johnston to Mr Voukelatos CN 1-2, 136-7

“The inspection was carried out on behalf of the Owners, after making an appointment for access with the Lessee, Mr Bodenstein. I went to the site intending only to look at the building, and not to get involved in any exchange or argument with Mr Bodensstein. (The writer visited the site three times in 2002 for Mr Bodenstein, but declined to offer him further advice after the third visit.)

The appearance of the sidewall facing the park was as before. I was met by Mr Bodenstein and one other, who was introduced as their consultant. I did not catch his name, and he did not say anything during the visit.

Inside, there were photos albums of the work and documents laid out, and Mr, Bodenstein pointed to one which had the words ‘..danger of collapse’ underlined, and I asked why he had not sent a copy to you. This seemed to annoy him and his voice started rising he said words to the effect that it was his report, he had paid for it, and was not obliged to give it to others.

For most of the visit, he shouted at me in adversarial manner, and I did not attempt to answer or argue.

All the ground floor walls were stripped of their lining/render at the time of my last visit in July 2002. This also removed part of the relatively soft mortar in the joints, so they have a ‘raked’ appearance. The sidewall now does not look good from the inside, because of the loss of joint mortar, because all the cracks have been revealed internally, and daylight shows through some of them, and it is understandable that a Civil might now take the easy option of condemning the wall.

Four holes had been dug beside the side wall down to the bottom, around 1m deep and 1-1.5m long, two holes in the main front room and one each side of the fireplace in the rear room. (The first of these was being dug during my visit in July 2002.) There was a root through the bottom of the wall, about 70-80mm dia, in the rear room.

(Most of the floorboards of the ground floor were removed before my visit in July 2002, and I omitted this from the list of un-authorized work. The Lessee said that they intended to place paves in the spaces between the floorboards.)

In the main cross-wall, the door opening near the sidewall had been altered. There was an arch over the opening in the rear skin of the bricks, but there was still a square opening with lintel angle in the front skin of bricks.

The crack in the rear wall, near the end of the sidewall, appeared a little wider then before, possibly because of shrinking of the foundation during the prolonged recent dry weather.

On the first floor, the following has been done since July 2002: –

  • Plasterboard lining of front room wall removed.
  • Hallway wall removed.
  • Lining boards placed on the top of the ceiling joists over most of the area of the front room.

Statement made by Mr Bodenstein during the visit were disjointed and difficult to understand, but I think were as follows;

When he leased the building he thought that the first floor could be used as a restaurant.

I should not have given to you, or to Council, copies of my reports to him, for which he paid me. (i.e. my note dated 5/3/02 and Structural Details dated 7/6/02.). He stated that I had authorized removal of the first floor hallway wall. (He asked me about this in my third visit in July  2002. I had previously advised him that only Council could authorize work, and after that visit I wrote to him on 22/7/02 declining to give him any further advice.)

He claimed that the condition of the sidewall was not as I reported previously, and he expected some help/consideration to rectify it.

He threatened me to pursue me/my qualification if I give more written reports to you  (or to Council?).

I let myself out after looking around. I shook hands with both. Mr Bodenstein stopped talking and shook hands cordially.”

16.03.03 AB to Mr Johnston CO 1, 138

“Dear Phillip,

It appears from your report dated 25 June 2001 (B-16) that Barry Smith Bateman (B10) structural engineers’ report was not to your knowledge at that time.

This is our impression as the above report is mentioned in Notice of Proposed Order (B9) and Emergency Order (B11) of Feb. 2000.

This report was the basis of the Council Order though subsequently disappeared from Leichhardt building file.

I believe Mr Voukelatos has and/or had this report at the time.

I obtained the BSB report following me request on November 2003 and I believe it should be part of your record.

I also believe that if you had the above engineer’s report when you considered the structural integrity of the building on June 2000, your report would have been different.”

3. The illegal building works

From January to April 2003, I held many long telephone discussions and arguments with Mr Voukelatos in attempts to convince him that there were severe structural problems and told him that I had confirmation from the Parks Manager, Mr Vince, that Leichhardt Council has an insurance policy for damages caused by tree roots.

In an effort to resolve the crisis, I was willing to carry out the rectification work if he was willing to extend the lease for another five years to make it 20 years and to give me a few months rent free. At one stage in our arguments he admitted that he was expecting me to fix the problems. Mr Voukelatos rejected my offer and he claimed in return that I had carried out illegal work that made the wall look cosmetically bad.

11.03.03 Mr Voukelatos to AB x 1-2, 189-90  

“1. Development Application:

We have signed the D.A. forms you sent to us on 7th February 2003 and I have sent them to our lawyer Theo Casimatis. He will send them to you for lodgment once the following conditions are met:

a)  you have paid all the rent outstanding.

b)  you have provided us or Theo with the final plans & attachment to be lodged with the D.A. This is subsequent to last pre-D.A. meeting you had with Council in late February 2003. Changes were made as you advised to the plans you previously sent us.

c)  we have received an indemnity from your architect, i.e. CS & A, or a structural Engineer that the building will not be placed in any danger as a result of the proposed work under the D.A.

d)  you send us a copy of the insurance certificate required under clause 7.1 of the Lease.

2). Request for further increase in the lease period. Your request that we grant you a further period is denied. The 15 year period is commercially very long when commercial leases are usually 6 to 8 year terms.

At the time of negotiating with you the terms of the lease we gave you an additional 5 years’ option period (to the 2×5 year option we were prepared to give) on the understanding that you would be carrying out substantial work on the premises.

3). Structural condition of the building

You stated that the east wall (facing the park) has become structurally unsound & that you would like us to arrange a structural engineer to examine it. We arranged Mr Phillip Johnston, Consultant Engineer, to attend an inspection in your company on 7/3/03. He now advises as follows;

You have carried out in the past 12 months a range of building & demolition work in the premises not approved by Leichhardt Council or Phillip Johnston. The illegal work carried although substantial (see his Report to you dated 7th June & 22nd July 2002) has made the wall look cosmetically bad from the inside especially as you removed internal render but otherwise the wall is sound as it was on his last visit on 19th July 2002. Council will need to access the site in order to process the D.A. Depending on the nature of the alterations carried out assessment or certification of the work may be carried out before the D.A. can proceed. Council is aware that we reside overseas and are not a party to the illegal building works carried out by you. It is our view the building was structurally sound when you entered the lease and that it still is.

We recommend that when door and window openings to the wall per the plans on the D.A. are done, you get a structural Engineer to supervise construction so that no structural problems occur….you should note that the illegal building work carried out is also a breach under clause 10.1 (b), 10.2 (b) and 12 (1) & (2) of the Lease.

4).  Non-payment of rent

On 7/3/03 you stated that you would not pay rent outstanding per my letter dated 14/1/03 or rent for March due on 5/3/03 or any future until we had agreed to your requests under points (2) & (3) above.

We point out that non-payment of rent is a breach of the lease 7 if not rectified by 15/3/03 we will take necessary action to terminate the lease & recover rent owing.

We recommend your architects to contact Leichhardt Council to arrange an inspection of the building, this will save you some time when processing the D.A. approval.”