Chandler on how he wrangled Mascot deal

We’re back and this is an absolute blockbuster, which, considering the topic, is an oddly ironic term.

Last week Sue had an exclusive interview with NSW Building Commissioner David Chandler about the benighted Mascot Towers – the building that started crumbling about five years ago and whose evacuated former residents have been living in rental accommodations since.

Did I say five years? Turns out the towers had defects long before that.  

So how did David Chandler wrangle a possible (read probable) resolution between resident-owners who just want out, commercial lot owners and residents who want to stay, investors, banks and strata lenders?  

You could read our very own Sue Williams’ exclusive report in the Sydney Morning Herald … or Jimmy’s column in the Australian Financial Review, but first listen to this merely fascinating podcast where we hear David Chandler himself, make sense of it all.

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Recorded by Jimmy Thomson & Sue Williams; Transcribed by Otter.ai; Transcription tidied up and sensified by Raphie.
Find out more about Sue Williams and Jimmy Thomson on their websites.

Transcript

Jimmy Thomson  00:00

Happy New Year!

Sue Williams  00:01

Happy New Year to you too, and all our listeners.

Jimmy Thomson  00:04

We had a couple of weeks off and it's been very refreshing. You've come back and you're straight into it, with a big interview in the Sydney Morning Herald last week, with Building Commissioner David Chandler.

Sue Williams  00:05

That's right. He phoned me up and said he had a big story about Mascot Towers and he wanted to give me the exclusive, so that was good.

Jimmy Thomson  00:27

What we're going to do now is, we've pulled a few extracts out from your interview with him. We're going to listen to what David has to say and have a chat about that. I'm Jimmy Thomson, I write the Flat Chat column for the Australian Financial Review.

Sue Williams  00:42

And I'm Sue Williams, and I write about property for Domain. 

Jimmy Thomson  00:44

And this is the first Flat Chat Wrap of 2024. Before we hear David in his own words, how did he come across you, because you went over to his office and sat there and for once, you weren't doing it by Skype or Zoom or whatever.

Sue Williams  01:16

It was quite funny, because most of his staff are still on holiday, so he was sitting there in this massive empty floor of a huge tower building. Kind of a bit lonely, I would think, really.

Jimmy Thomson  01:20

Well, 400 staff, we heard about just before Christmas.

Sue Williams  01:31

That's right yes, but no sign of them at all. He was cautiously optimistic, because he's worked out this plan to try and hopefully, solve and finish the Mascot Towers debacle. So he's a bit wary, because he still has to get a few people to agree to it. It balances on a lot of things, as we'll hear later. It balances on 75% of the owners wanting this solution. But he seemed really quite ebullient.

Jimmy Thomson  02:03

Happy!

Sue Williams  02:06

You know, it's exciting, because Mascot Towers... I mean, it's been going on for such a long time. Those poor people have been out of their apartments for nearly five years now, since they were all evacuated. If he can find a solution to it, fantastic.

Jimmy Thomson  02:21

Okay. Well, the first question that you asked him was, what does it all mean? And this is what he said.

David Chandler  02:28

What I am in the process of now is actually briefing owners on what might be the way forward. We commenced briefing owners at three meetings before Christmas, on the Wednesday and Thursday before we broke up and we had approximately 20 owners at each of those. So we briefed about 20 owners, and we've now got an invitation out for the balance of owners to attend briefings. One name you should note would be John Engler; do you know who he is? 

Sue Williams  02:59

No.

David Chandler  02:59

Okay. So John Engler is the CEO of Shelter New South Wales and he's a guy that's just interested in helping people get their housing sorted out. I've known him for 20-years and he's a very good guy. But he happens to have been roped in by the owners corporation to sit in on meetings with the Minister, that I've attended over the last six months. So they've really brought him along, because he's sort of like a housing advocate.

Jimmy Thomson  03:29

So first of all, John Engler; you've spoken to him? 

Sue Williams  03:31

Yes. He's the CEO of Shelter New South Wales and David thought to bring him in to kind of represent the owners really, in some ways. And it was a really good strategy, because as David said, I wanted them to have somebody to talk to, who really understood the issues, but who wasn't David, because they would obviously see David as part of the government, really. John was in a position to be able to discuss the proposed solution with them, and talk to them and tell them whether he felt it was a good idea. And because John works for Shelter (which is a charity for homeless people-which they could all possibly be, if this didn't resolve soon), they all felt he was very much on their side. 

Jimmy Thomson  04:14

How did he come across to you, though Sue?

Sue Williams  04:16

John has an enormous amount of empathy with the owners of Mascot Towers; I guess we all do, really. But he is very sensible. He's looking at all the solutions. I had a chat to him and he basically said well, look, this isn't our plan A. The plan A probably would have been for the government to have bought the tower, paid everybody off, but the government just wasn't prepared to do that. But he says this is the best of the plan B's, C's and X's. He was also cautiously optimistic that this might work and it might be in the interest of most of the owners hopefully, to go along with it.

Jimmy Thomson  04:53

Okay, so David Chandler took an interesting strategy, in terms of meeting with the owners; let's hear him talk about that.

David Chandler  05:03

And what I've asked John to do is to sit in each of these briefings that I have with the owners. So he has sat in the first three meetings already. And I provide them with those briefing documents which you've got there, and then I walk them through all of the other particular documents, answer their questions to the extent possible. And then I leave the room and I let John Engler sit with them for half-an-hour afterwards, so that they're in a situation where they don't feel under any duress, for raising things they'd like to raise, that they wouldn't normally raise with me, because this is about them; it's not about me. 

Jimmy Thomson  05:45

So that idea of only meeting groups of 20 or so owners at a time, and we're talking about more than 100 apartments... I mean, it's time-consuming, because he's having to say the same thing five- times over. Did you get the feeling from him that it was a successful strategy?

Sue Williams  06:05

Yes, I did, because he wanted it to be really intimate. He wanted people to be able to ask him questions. I mean, he said he wanted to be able to look people in the eye and tell them that this was something that they could go for.  I think it's a really good idea, because if it was a big town hall meeting with all those people, it would have been hard...

Jimmy Thomson  06:25

It would have been a rabble. 

Sue Williams  06:26

And people would have been shouting over each other possibly, and it could have been really difficult. But with smaller groups, he was able to kind of talk to them almost one-on-one, and explain exactly what the repercussions will be for them. I mean, without knowing every different household's personal circumstances. I think that was a really good way to go about things.

Jimmy Thomson  06:47

And one of the things David says is, a main priority was just to stop the litigation. There was a feeling I think, everywhere, that money that could have been spent on fixing the building, was being spent on lawyers (wonderful people, though they are). Let's hear what he says about that.

David Chandler  07:05

You'll see in these notes here, what we're saying is it's time to end the litigation and if you look back on the litigation history, you'll see that litigation has been running pretty consistently for many years for this job; it's not just of recent times. So if you go back through chronology of this job, you can see that I've gone back to the start of the job and I've listed all the litigations that have occurred. But in 2013, the owners found that there were defects there, because the original developer and builder was J & B Elias, so they're the people that built the building. Their businesses no longer exist anymore; they've shut down. But they hadn't shut down in 2013-to-2015; they were still there and they did reach an agreement with the owners corporation way back then, to fix some defects.  They originally settled an amount of $750,000 as a Deed of Release, but then about mid-2017, the developer of Peak Towers next door did a very, very deep dilapidation report of Mascot Towers. I'm told it was over 1000-pages, and it had identified defects in the building that were subsequently claimed, that were identified as a result of the cracking, but in fact, they predated that. Now, what I've done just to keep all of this in perspective, is that I've now got a timeline, which goes back and says well, just remember that the original certifier for this job was Botany Council, not a private certifier. Botany Council; now Bayside Council, was the original certifier and remember that J & B Elias were both the developer and the builder. 

Sue Williams  08:55

It's interesting, because I always thought it was the fault of Aland for excavating....

David Chandler  09:00

They clearly contributed and the court case was settled with them. The bottom line is that yes, I think that the Peak Towers thing was a contributing factor, but I think this building had  defects in it a long time ago. Mascot Towers owners commenced proceedings in the Supreme Court to sell the building in June 2022. So that's when they decided that they didn't want to remediate the building, that they were going to sell it. So what I'm interested in now is what has happened then, because the government undertook during the election, that they would help the owners corporation sort it out.  I was brought back onto the case in February 2023.

Jimmy Thomson  09:43

He introduces the idea (that's always been a bit hazy), that there were defects in Mascot Towers before the building next door started digging their foundations, or digging their carpark. Did that come as a surprise to you? It certainly happened after it, didn't it? 

Sue Williams  09:57

Yes. I'm sure there were some smaller defects that were settled earlier, but I was under the impression that the main cracking was caused by the excavation next door. That's right. It went to court and the court basically found that defects had been seen beforehand and so these may have exacerbated them, but the defects were there in the first place, in that building. 

Jimmy Thomson  10:26

And he refers to the court case late last year, where the majority of owners wanted to dissolve the strata scheme, under the legislation that is used for older buildings, to sell themselves to developers. But that was knocked backed by the... Was it Land & Environment?

Sue Williams  10:48

No, the New South Wales Supreme Court knocked that back.

Jimmy Thomson  10:50

The Supreme Court, basically said that there were too many people who didn't want to do it, and it would have harmed the people who were owed money, because if they'd done that, the owners would have been able to walk away... There would be no strata debt; nothing. And so that was knocked back and this is where David said they decided to get involved.

Sue Williams  11:15

He termed it that instead of a sale-of-building strategy, this was a sale-of-lots strategy. 

Jimmy Thomson  11:18

Okay, let's not get too far ahead, because that's coming up.

David Chandler  11:25

So the owners carried on with their litigation for their action to wind up the owners corporation, and that fell over on the 24th of November 2023. So that's where the sale-of-building strategy fell off the rails, because the sale-of-building was no longer viable. The government said "we'd still like to help these people, so what's the alternative?" And I said "well, as it turns out, I have been approached by a purchaser syndicate." So when they presented the opportunity for me to explore a sale-of-lots strategy (as opposed to a sale-of-building strategy), their condition of it is that as long as 75% of the owners (by unit entitlement, not by lot number), agree to sell their apartment, they, subject to some conditions, would then offer to buy them. So all the documents you've got are simply documents that now turn on each owner, offering their apartment individually to the market, and there being a sufficient number of those to meet the criteria of the prospective purchaser, to say "I'm prepared to purchase on the basis that 75% of you by unit entitlements, offer to sell."

Sue Williams  12:42

Yes, absolutely. 

David Chandler  12:45

That's all got to fall into place by the end of February. So the interesting dynamic is that when I made some soundings after the 24th of November, to see whether the owners were interested, or some owners were interested in a sale-of-lots strategy, as opposed to a sale-of-building strategy, the relief that came talking to a couple of them was that "wow! Does that mean we don't have to have another owners corporation meeting, for this to happen?" And the answer is absolutely no. This is now for each owner to vote with their own feet. This is why there is no owners corporation meeting to proceed.  So we did pay the owners corporation executive, the Chair Isaac, and their lawyer, Mills Oakley, the courtesy of calling them in and saying "look, we don't see there's any near-term prospect of you having a sale-of-building strategy, so what we're pursuing right now is a sale-of-lot strategy and while we appreciate the assistance and the courtesy that you've given us to this point, it doesn't require a further meeting of the owners corporation." So we won't meet again with the owners corporation; we'll only meet with individual lot owners and that's what we've been doing. So this sale-of-lots strategy is about that.

Jimmy Thomson  13:59

So obviously, I think the government was responding to public pressure. A sentiment I kept hearing was the New South Wales government- not this government; not even the previous government-allowed this to happen. The Botany Council allowed the certification to go ahead, and then inconveniently lost all the documents in a fire or something (maybe a shredder). I think there was the sentiment generally in the public, that the government had a liability; that meant they had to do something.

Sue Williams  14:41

Well, it did happen on their watch. There was a feeling that they hadn't done enough to protect people against developers and builders that weren't building up to an acceptable standard. 

Jimmy Thomson  14:53

The government basically said "well, we're not going to buy the building," which is what John Engler suggested would have been the ideal solution...

Sue Williams  15:01

What lots of owners wanted, as well.

Jimmy Thomson  15:04

And we've suggested it here on this podcast.

Sue Williams  15:06

I think the government, as David explained, would see that as a bit of a dangerous precedent, because there are other buildings, which are in... I mean, they're not so headline-grabbing, but they are in a difficult position and they would have come back and said "well, what about our building? You've got to buy our building now." 

Jimmy Thomson  15:24

They didn't want to get into the position of buying up every crumbling building in New South Wales. But let's see how he came up with this strategy...

David Chandler  15:36

When I was brought back onto the matter in February (because you'll appreciate, the former government didn't, until late in the term, have a strategy for Mascot Towers). In that window between the old and the new government (which was sort of while they were getting their knees under the table), I had been jointly asked by both the outgoing government, Victor Dominello and the incoming (potentially), the Opposition at that stage, Courtney Houssos, to look at what would be a way forward, because both of them had resolved in their mind that post- election, they'd do something. So that's why I was brought back in February.  I started this in February, while the election was still not held and I didn't know which government, but both of them gave me the same brief and that was to explore the possibilities.  I did have a meeting with some of the owners in February, to sound out with them, what did help look like? They had a sort of stepped-down series of options, so their first preferred option was that the government compensate them, by way of acquiring the building, with a market value based on what the market value was today... What they thought it was today. They didn't have a number, but it was probably north of $120 million, but we didn't discuss a number. And I said "well, if the government said we don't want to buy the building, and that number is simply not on the table, then what's your next level?" And they said "well, we would expect the government still to buy the building, and compensate us for what we paid for the building. So not its current market value, but what we paid." And I said to them "I think that would be very difficult to get up in any circumstances, because it would create a precedent, and it would just simply be fiscally difficult to even put forward." So they then said "well, what have you got in mind?" And I said "I think that it might be possible to actually put up a proposition that says that the assistance should seek to enable Mascot Towers' owner/occupiers and investors to walk away from the building, without any debt." Now there's two types of debt in that building at the moment; there's the strata debt, nominally $15.3 million...

Sue Williams  16:29

To Lannock, yes... 

David Chandler  17:18

And then there's the mortgage debt; I think about 60-to-70 of them have what we would call mortgage debt. But we don't know until we've got all the data, because only 70% of the owners so far have told us their circumstances. So at this stage, I don't know what the other 30% are, because we haven't seen them, but 60- to-70% of them gave us their details, so we're of the view that the amount of mortgage debt is quite significant.  The strategy that I was working on under the sale-of-building strategy, was that Lannock would forego part of its debt, and the bank would forego part of their debt.  I've been using 40% as an indicator, so just discount the debt by 40%. On the basis that if the lenders were prepared to compromise on their debt, then there may be a basis for the government to step in and backfill the gap. So that's essentially the strategy that we're working on at the moment;  they'd have to accept that all they would walk away with would be no debt, firstly. So the way that this works is that the net debt works out to be, what are the net sale proceeds after a sale, shared in accordance with the unit entitlements.

Jimmy Thomson  19:04

It's kind of complicated, the maths on this.

Sue Williams  19:10

Well, the maths... We don't really quite know the figures, in your defence, Jimmy!

Jimmy Thomson  19:16

Because he doesn't know the figures. As he says, they are working on a notional amount of maybe being able to get $42 million in. I'll let him explain it himself, but it sounds like the banks and Lannock, the strata loan people, were prepared to forgive a chunk of their debt.

Sue Williams  19:36

The owner's debt; the money they're owed. 

Jimmy Thomson  19:39

I'll let him explain it, because if I try, I'll probably get it wrong.

David Chandler  19:45

You'll see in those notes that we've only used $42 million, as a hypothetical. But if it was $42 million, which was the last price they achieved when it went to market... They attempted to sell the building in 2021, but they just weren't ready to sell it. If you take the $15.3 million off that, you end up with $26.7, and if you distribute that in accordance with the unit entitlements... It's important that that's hypothetical, but it does explain it. So what would happen is that that would then be the net proceeds after the servicing of the strata loan. Essentially, if you had debt, and that's how much money you got, that money would first of all go to the lender. The lender will have discounted their debt by 40% and so if you take the debt, reduced by the first distribution, and the discount, the government would then top up the balance. So  it's not 60-cents of the total debt; it's 60-cents of the debt after the distribution of sale proceeds.

Jimmy Thomson  20:52

So now the Mascot owners will be divided into two groups; the stayers and the leavers. And apparently, the majority of stayers are people who've got shops that are still open in the building.

Sue Williams  21:11

There's still a few retail owners there and of course, they've been trading all the way through. They haven't had to leave. 

Jimmy Thomson  21:17

There's nothing for them to gain in leaving, and quite a lot for them to gain in staying. So they will be excluded from this offer, presumably. The people who want to stay, they're saying "well, we're not buying your property off you and you still have to pay your levies and you still owe whatever you owe." 

Sue Williams  21:37

The strata debts and the mortgages. So they're excluded from this whole thing. So for them, it's kind of a bit of a gamble really, because they may stay there and the new owners... You know, if it's decided by most of the owners to sell, the new owners of the building may do huge remediation work, but then sell off the building. So the people who stay, they're going to have to pay a share of that remediation bill. But at the end of the day, they might come out with more money; maybe the building would sell for a bit more.

Jimmy Thomson  22:11

Once they rename it. They could call it Chandler Towers!

Sue Williams  22:18

He'd love that, probably! They might come out on top, but they're going to have to go through years and years of anxiety, building work, disruption and stress.  I mean, for people who bought that place to live in, the owner/occupiers, they can't put up with that. Their rent assistant finishes this June, so they can't continue like that. 

Jimmy Thomson  22:45

One of the things that David said quite clearly, was the government doesn't want to get involved in litigation. He was walking quite a fine line, wasn't he? Being involved without being involved. Like saying "here, we've brought together these parties who have an option; who have a proposal. It may not be your preferred solution, but it's basically the least worst option." And it's interesting to hear what he says about the potential for litigation and how he just doesn't want to get involved.

David Chandler  23:17

I've been really, really careful here, that we don't get involved in the litigation. We don't try and interfere with the transaction of the litigation; we've stayed right out of it. This is the very first time that we've had an opportunity to say to owners "well, we think there's a prospect that those of you who want to leave, could leave roughly on these terms." But then if I go back to the briefing document, in the sale-of-building strategy, we sought permission from the owners corporation to go and talk to the financier about the debt mitigation part of that and we needed to have that formally signed off.  So there was a deed poll, authorising the Building Commissioner to facilitate discussions with relevant debt holders, around the principles of how we can come up with a debt-mitigation strategy. The owners corporation voted to sign that deed poll, and they came back to me in July with that deed pole signed, saying "yes, we're happy with you talking to the debt holders, with a view of seeing how this could be wrapped-up with no residual debt for owners." Now, at the meeting, where they expressed preparedness to do that with the minister, they then said "would the minister consider any additional support if that happened?" The minister made it very clear that that had to happen first, because if that didn't happen, then no, there was going to be nothing. So that's why we've still got to achieve this debt mitigation strategy and you'll see in the documents, that's what we call Support 1 in the document; 'S1' and that will be for some 60-odd owner/occupiers who have got debt, that after getting their contribution from the net sale proceeds, if they've got debt, they make that payment to reduce their debt first. Then their lender reduces the debt by 40% and then the government may come in and top up the balance.

Jimmy Thomson  25:08

And then we come to the vexed question of, are some people doing better out of this than others? Because it seems like the people who have substantial mortgages are going to get more benefit than the people who say, own their properties outright, and the owner/occupiers, who are not occupiers, are going to do better, or have accumulatively done better than the investors. Did you get a sense of that? 

Sue Williams  25:36

Absolutely. It was interesting, David's attitude to the investors. I mean, he said really, investors in property are no different to investors in shares. It's a gamble and you can actually offset the cost of your investment (and if your investment goes wrong), with negative gearing, capital gains, tax losses; things like that. So he's not concerned with the investors at all.

Jimmy Thomson  26:00

Let's hear what he said about that.

David Chandler  26:03

So that left two groups feeling very aggrieved at that...

Sue Williams  26:08

People who don't have debt and investors?

David Chandler  26:11

Well, investors; we just had to say "I'm sorry, but investors are no different to buying shares. The investors get negative gearing, and investors also get capital gains tax loss." So investors have got the prospect of offsetting the losses of their investment in Mascot Towers against future investments, or current investments that they're making. So it would be tantamount to double-dipping, if you actually paid investors in the same way as owner/ occupiers. Owner/occupiers put their savings on the line; investors put their investment strategy on the line. And so investors have never been included in this group, because while there are a number of investors who will be sellers, it makes economic sense for them just to crystallise their debt and move on. They don't want to increase their debt and stay with the building. So there will be a significant number of investors who are leavers as well, but there's nothing in terms of a support strategy for them.

Jimmy Thomson  27:14

There's obviously a lot more to this, and I've got about 14-pages of transcript here.  I think we've got a really clear idea of what's going on and the rest is really just speculation, because the owners, when they are presented with this, may decide well, this isn't right. We want to keep fighting, or whatever. You spoke to a few owners; what sense did you get from them? 

Sue Williams  27:40

I spoke to a couple of owners and one owner said he was just delighted with this. I mean, it wasn't the best solution, but he just wants to get out and get on with his life. He's just sick of this. I think an awful lot of people will be in the same position. Another owner said she's not really quite sure what it all means and she's going to have to get some advice from her financial advisor. David has encouraged people to go and get advice and to talk to other people about what this might mean for them, really.  He's set up two different support strategies; one for the leavers and one for the stayers. They've got their own email groups and their own advisors in both. There's another group as well; the over-65's, because he's basically saying "well, for those people, they don't really have much time to go off and earn more money to make up for the money that they're going to lose." So he's also talking about providing a benefit for them. It will be means- tested, providing financial support for them as well, which is kind of nice as well, because, wow, it would be awful to be elderly and be trapped in this mess. For other people, they've got the chance to make money and recoup their losses, but for older people, that's really difficult. 

Jimmy Thomson  28:55

He did say at some point, "if you're under 65, you can start again, you've still got time to start again." I thought that was fairly generous. A lot of people we know, by the time they get to 65, they're thinking "okay, now it's time to travel the world," not build up enough money to get another mortgage. Look, it's fascinating; we might come back to this, because there is so much more. I wanted to get this out as soon as possible and get us back on track with our podcasts. Your story is in the Sydney Morning Herald; Domain is online, and I will put a link to that in the podcast notes. It does feel like we're closing the book on this though, doesn't it?

Sue Williams  29:42

Yes, that's right. Well, I mean, obviously, if the owners decide not to, it carries on. But I think a lot of people then will maybe, lose some of the sympathy they've had for them.

Jimmy Thomson  29:52

That's exactly what I was thinking. They've got a lot of sympathy out there and I think that from the government's point of view, they desperately need people to be buying into apartments and buying off-the-plan, so that apartment builders can get the money from the banks, because that's how it works... The developers come up with a plan, they take it to the bank initially. The bank says "we'll need to see X amount of sales." They sell off- the-plan and they go back, and then they get the rest of the money to do the building. That requires people to have confidence and I think this is the kind of thing that will not just close the book on a dark part of apartment history to some extent; it will encourage people to think they're in safe hands. 

Sue Williams  30:36

That's right, because we know all the buildings which are being built now and during David's tenure, are structurally sound, hopefully. 

Jimmy Thomson  30:45

We hope so! 

Sue Williams  30:47

It was funny, before my meeting... I mean, I had a meeting with him at 12 and he'd already been out on three building inspections and this is during the holidays. So we know the future of buildings in New South Wales hopefully, will be rock-solid; we just have to tidy up the past. 

Jimmy Thomson  31:04

Yes. Well, thanks, Sue. You're incredibly busy, catching up with all the work that people have been not giving you over Christmas and New Year. I'm going off to start my teaching term this year, so it's a busy time, but I hope those of you have taken the time to spend half-an-hour or so with us have found it worthwhile and found it enjoyable.

Sue Williams  31:28

And let's hope in 2024, we've got lots of better news about apartment buildings!

Jimmy Thomson  31:32

Good news stories. Thanks, Sue for coming in. And thank you all for listening. Thanks for listening to the Flat Chat Wrap podcast. You'll find links to the stories and other references on our website, flatchat.com.au. And if you haven't already done so, you can subscribe to this podcast completely free on Apple podcasts, Google podcasts, Spotify, or your favourite pod-catcher. Just search for Flat Chat Wrap with a W, click on subscribe, and you'll get this podcast every week without even try. Thanks again. Talk to you again next week.