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FLAT CHAT WRAP
Lawyer in the Hot Seat 2025 - Part 1
In what has become an annual event here on Flat Chat, this week we were invited on to a webinar run by leading strata lawyer (and Flat Chat sponsor) David Bannerman for the Q&A session that we call Lawyer in the Hot Seat.
In it we discuss such diverse issues as Lithium battery safety, a Vegepod balcony plant system that's been banned becasue it's not in keeping with the look of the building, the surprisingly widespread problem of mould and explore the vexed question of underperforming committee members.
This is a long session so we have split it and will run the other half next week. There's a lot in it because, as is the nature of strata, one answer leads to a Jenga stack of other questions.
You can check out the Bannerman's website for a stack of strata-related information
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Recorded by Jimmy Thomson & Sue Williams; Transcribed by Otter.ai.
Find out more about Sue Williams and Jimmy Thomson on their websites.
[Jimmy]
Hello, this edition of the Flat Chat Wrap is a little bit different because as you may know this week we also did an online webinar thing which has become an annual event now and that's called Lawyer in the Hot Seat where I ask eminent Strata lawyer and one of our sponsors David Bannerman a series of questions about Strata living and Strata law.
It lasted more than an hour, we are going to split it up into two parts.
The first part today and it covers some of the vexed questions in Strata.
I have to say that when I sat down with the suggested questions there were about 80 of them.
We didn't get to them all but we did cover lithium batteries and what you can do about it in your Strata scheme and we'll be looking at the case of a veggie pod balcony plant growing facility which has been banned from a building because it can be seen from outside.
Mould claims which are a very tricky area of Strata because there's a whole question of culpability and responsibility and what you can do about it because it can be a serious health issue.
Finally we look at non-performing executive committees and what you can do about them and how you identify a committee that's performing badly as opposed to one that's doing the best it can but just not succeeding at it.
So we go straight in with David Bannerman explaining what the issues are with lithium batteries and then we get into the questions about what you can do about them.
I'm Jimmy Thomson. I edit the flatchat.com.au website. I write extensively across many titles about Strata and this is the Flat Chat Wrap.
[David]
Thanks for joining us everybody in the audience.
We've got Jimmy Thomson with us today just talking about the trending issues that are facing owners at the moment will be the focus of today but Jimmy's got a whole I don't know 80 questions provided that people have asked for which Jimmy's going to select from a range of those and we'll go through those together with some of the trending issues which are affecting the audience at this time.
But if you do have questions that you'd like to raise you can pop them into the chat and then hopefully if we have some time we'll be able to get to some of those if Jimmy's focused on those issues.
So I'm going to be letting Jimmy do the driving as far as the questions go but we've got some topics that we'll cover.
So I'll just sort of go off into what I consider some problematic issues for owners corporations and why it's not so simple but lithium batteries.
So you've got them in your phone, you've got them in your laptops, you've got them all through different items that you own.
The ones that are typically causing fire but not limited to the ones that are for like e-bikes or e-scooters so they've got a larger size and when they break down typically while they're being charged but not always while they're being charged that energy release is creating a fire which can't be extinguished and the energy just has to release and so they'll typically put ideally the item underwater or bury it under sand to let the flames and lack the oxygen needed to try and extinguish it but often they can't do that at the time because of the item and there was a couple of people who died last year sadly that was living on the top story there and there's a fire from the bottom story and they weren't able to escape it and they both died.
Now it wasn't a strata scheme it was like a strata scheme with a little group title sort of set up there.
There's a very very high rate of incidents of lithium battery fires when you think about the number of incidents that occur like just in New South Wales last year that was 317.
This year is looking with similar numbers so it's sort of like one a week and I'm not talking in New South Wales strata schemes just talking in New South Wales where there's lots of fires so you know you can get massive spikes in fires so you know on the 12th of May there was 13 incidents in a single week as an example so that goes a bit beyond the sort of a bit below the daily average in that week you had double the daily average just about so have you you know in your world Jimmy what are you doing about lithium batteries and fires and what are you seeing?
[Jimmy]
Well the problem with lithium as you've outlined is they create their own oxygen as they burn the chemical reaction within the battery creates its own oxygen which so it's self-fueling and so under most circumstances it's almost impossible unless you've got specialised equipment to put it out.
The other issue is I mean the building that I live in has said because they say we cannot stop you having a scooter or bike and charging it in your apartment but you may not do so on common property and that includes the balcony in most buildings most modern buildings.
Now I mean I live in King's Cross and there's a few backpacker places around here there's one you go past any morning and you'll see about 10 e-bikes sitting outside with their batteries out because they're inside being charged and I'm thinking well the two it comes to me there's a much much higher risk than you would get in an apartment but yet I think we've had one fire in a backpacker in the cross a lithium battery fire and it was because somebody was charging the battery with the wrong equipment.
What do you do? I think there are a lot of people in my building (one of whom is not my wife who has an e-scooter) who would like to have them banned from Strata scheme altogether is that even a possibility?
[David]
You can draft a bylaw to say whatever it is you want it to say as to whether or not it's going to hold up will depend on whether it's conflicting with another law so there's sustainability infrastructure laws which I'll talk about in a few slides time which you can't use a bylaw to prohibit but there's nothing to stop like to prohibit the lithium batteries altogether right and nor would it be sensible to do that with iPhones as an example so if you were to focus your energy on a particular risk that regarding batteries such as you might choose cars or you might choose e-bikes like or e-scooters like what you've mentioned.
And if you can establish that and the prohibition of the charging of that inside the building is not a problem which the owner is expecting to be able to do so what I mean by that is the laws around whether the bylaws are harsh unconscionable oppressive if you buy property you can do what you want with your property so long as it doesn't cause unreasonable interference with somebody else right.
So if the unreasonable interference is that well this is a possibility to catch a fire and set the building alight and therefore we're going to prohibit um that particular type of risk either whether it's um you know a scooter or a e-bike then you can put rules around where they can be charged like i.e externally you know you might have a uh a power sec power plant at the front of the building where you've got a door area it's locked and people can lock their batteries and charge them in there as an example and then you can have an alternative around that there's not many buildings that have that set up but that's that's something that they're looking at more in the U.S. as an example of a solution to that problem
[Jimmy]
A sealed room I mean one of the things that we have been hearing about in strata for the past 25-30 years is how modern apartment buildings are supposedly fire safe and two examples of that - I'm seeing you're wincing at me ... you're going to come back to me on that - two examples of that would be the cladding fires in Melbourne where the cladding went on fire on the exterior of the buildings but didn't go inside because because of the way the fire safety was set up within that within those buildings because they were fairly modern buildings and it's it does strike me that a fire it sounds stupid for the strata committee and the the scheme to say you cannot charge your battery on your balcony because that seems to be the obvious place to do it but what they are thinking is I think if they're thinking at all that within the apartment it can be contained.
[David]
You're not going to contain the fire within the apartment yes some of the some of the apartments will be you know built in such a way that they're compartmentalized and so that spread of fire shouldn't occur but that's just over a particular period of time it shouldn't occur so it gives enough people time for people to get out of the building doesn't mean it won't go beyond that compartment right there was enough energy and fire and heat and flame to take it beyond there would just allow people to escape within the period of time to to get to safety so yeah whilst that may make people think that oh well that's enough time to get out of the building.
That's not really what people really want because they could have all their possessions destroyed or they might not be able to leave the building because in a quick period of time for whatever reason they fell asleep or or they're unable to get away because of some disability and so you've got sort of things there that you want to try and best avoid um and so and often you know you look at a place like in the photo on the left there um Lake Macquarie where they died you know people think that's an apartment but you know that's not a fire rated apartment i'd like to get in a multi-story building that you know that you was properly designed and properly constructed in accordance with the design um they do exist but there's lots of issues in relation to the construction um and so yeah i think that there's real issues to manage around the e-bikes and there's going to be growing evidence around the issues around um cars as well because there's more
[Jimmy]
incidences of cars well that's a much bigger fire risk and what if i know it's a risk of a much bigger fire was a yeah yeah it's not a bigger fire risk because those batteries are probably you would hope much better constructed but we had an incident in the apartment block next to us where there was a fire in the rubbish chute the garbage chute and somebody had thrown out an old electric razor right so that's a tiny battery but it had bounced all the way down broken the battery as soon as the battery is broken it it went on fire and it just shows you that i mean we're talking about e-bikes and e-scooters and cars but we should probably also be talking about electric drills and all the other things that people have batteries in
[David]
Look we get we get requests for bylaws to address those other issues more on a reactive basis than a proactive one and certainly people can seek to address that in their bylaw um but you know here we've just got another couple of uh fires that have just happened in the last few days you know lithium battery in a toy car um overnight in Lake Macquarie a few fires there we've got recycling truck catches fire due to lithium ion battery so you know they're happening quite frequently i don't know that they're all reported to the um fire brigade or they i don't know they all make it into the papers because they're really quite common what would it what would be the reaction
[Jimmy]
What would be the possibility of a bylaw being overturned if it said you may not carry a lithium ion battery through common property
[David]
Well i think ... i'll talk about the fact that you can have bylaws to restrict activities and you can have bylaws regarding um sustainability infrastructure and i'll show you that on the next slide um so you know you can't have a bylaw that just completely outrules sustainability infrastructure so you might want to have some solar panels on the top of the building uh say for instance and the thing about sustainability infrastructure is that although it's a special resolution to get it passed it's just a different special resolution that is to make life confusing but it's where it's passed unless more than 50 percent of owners vote against it .
But where you're to reduce the consumption of energy or water or to increase the efficiency of its consumption or to reduce or prevent pollution or to reduce the amount of waste sent to landfill or to increase the recovery of recycling materials to reduce greenhouse gas emissions or to facilitate the use of sustainable forms of transport well there's your e-bike right there yeah and your and your uh ev car potentially also you know hanging around on a couple of other those levers there as well to say well um you know the owners corporation you know can um make bylaws dealing with um e-bikes and electronic motor vehicles for sure and it would require a simple a simple modification to that bylaw to put in conditions to stop the risk for the owners corporations or to greatly reduce the risk.
[Jimmy]
Right we've used up almost a quarter of our time on one question only another 79 to go .
[David]
I think for the consumers i think they're going to look at bylaws to restrict activities regarding lithium ion batteries if they feel at risk um some you know past one townhouse strata schemes they won't be that concerned because they're not worried about people on top of them they might just take the risk of their own fire creating their own problems um but i think about australian standards and fire and rescue new south wales are the people who are always putting those fires out and they've got guidelines there we keep up to date with those guidelines and we implement those guidelines into our terms of our bylaws so you can create rules around it you can enforce it but then you probably need to get cctv footage as well if you really want to be adamant about how you're going to manage it.
[Jimmy]
And then if you see somebody walking past with a suspicious looking package and a helmet you know that they're they've probably been charging their battery upstairs and they're sneaking it out to where their scooters park. We have a box a fireproof box in our uh bike parking room um you know normal bicycles and a couple of e-bikes in there as well but there's this fireproof box there that is you you put your battery in there and charge it up in the box that's good that's a good strategy yeah the only person who's used it so far is our building manager not so good it hasn't taken on yet but i would imagine that in in bylaws if you introduce if you create a safe or a safer room for charging then you could probably insist that people charge their batteries there
[Jimmy]
i think it's because it could otherwise cause an unreasonable interference if they didn't do it. Can I change topic slightly here?
[David]
Yeah, yeah, sure.
[Jimmy]
Unreasonable interference. Somebody's written to me they've got one of these veggie pod things. I don't know if you're familiar with them but for your balcony it's about the size of a barbecue but instead of roasting and burning meat you're growing veggies and herbs and because it's higher than the balcony where it's got a kind of net cover to keep insects and birds out and because that has protruded above the balcony they have been told that it's not fitting with the look of the building and they've got to get rid of it.
Will that stand up if it went to the Tribunal or do you think?
[David]
Well, first thing is what do the bylaws provide for? That would be the first question is does it fit within the terminology of the bylaw? Each sort of Strata scheme has different terms potentially and they vary them from time to time. But yeah, if you had a bylaw that said you won't keep anything within the lot which creates an unreasonable looking distraction to the uniformity of the building or it looks terrible or whatever it is that the wording of the bylaw says and the bylaw is valid, well then yes.
But I think the owner's corporation would struggle to find the right bylaw to limit that sort of activity. That would be perhaps one that they'd made recently to address that issue and that person continues to infringe the terms of that bylaw.
[Jimmy]
I've been very naughty and told them to ignore it.
[David]
Well, I think if the wording of the bylaw is not there I'd say you'd be safe to ignore it because what interference is it really causing and that's not a nuisance. It'd have to be a breach of the terms of the bylaw.
[Jimmy]
We're going to talk about mould claims.
[David]
Sure.
[Jimmy]
What should an owner's corporation do if the mould developing in one lot is caused by the actions of a neighbouring lot owner? So I guess we're talking about somebody who's got a leaky bathroom floor and they haven't fixed it or they've got other things going on.
Their hydroponic marijuana system is overflowing and it's causing damp to go into the other apartment. What should the owner's corporation do?
[David]
Good question. The first thing to think is that concrete is meant to be porous. So water is supposed to transfer through concrete. A lot of people think, hang on, the water's not supposed to transfer through the concrete. No, it is meant to be porous. And there's certain parts of the unit above it which would have waterproofing, like the bathroom area say.
And if the bath was leaking and it was creating a problem for the unit below, well then the question is, is the part of that bath that's creating the problem part of the common property or part of the lot property? So you've got to look out to work out exactly where the item is that's broken.
And then you've got to look at the strata plan and the relevant bylaws and the notations in the strata plan to work out is that part of the lot or is it part of the common property? So if it's a common property, the owner's corporation is liable for the losses below.
If it's not a common property defect, but it's a defect in somebody's property, say it's a leaking internal pipe that services only that unit and they've caused all this damage to the unit below, well then that unit below can bring an action against the unit above under the law of nuisance. And so there's that's 153. And that's not a strata law. That's a different law altogether.
[Jimmy]
Sorry, you mean like it's not a strata law? It's like, say for instance, the water's coming from an adjoining property?
[David]
No, no.
[Jimmy]
I mean the law of taking a claim against the unit owner above.
[David]
In the strata, you've got common law nuisance and you've also got the statutory form of nuisance, which is in section 153. And so the owner could seek to rely on either form of nuisance, but they'd probably argue both common law and statutory under section 153.
[Jimmy]
But can you claim compensation through strata? I mean, like the strata laws, can you go to the tribunal and say this person, the leak has caused the damage? Oh yeah, yeah.
[David]
The tribunals, the NCAT has issued decisions in that very circumstance. But it comes, like one of the very first I was involved in back in around about 2003 was getting to the bottom of a question of where was the leak coming from?
And we worked out that the leak was coming from a pipe that was servicing the hot water unit, but it was only servicing that unit. And it was one centimetre above the slab, and it was part of the lot.
And the owner below who was suing for the damage to their bathroom was unsuccessful in suing the strata managing agent and the owner's corporation because it sued the wrong people.
[Jimmy]
It should have gone for the owner.
[David]
Yes. But just in relation to mould claims, they take years to accumulate. The owner can bring their action in a short period of time or not, and it can take a long time for it to get resolved. So there's lots of decisions in NCAT. We have lots of decisions regarding mould claims because the lot owners are suffering.
Quite often we get a lot of inquiries from an owner to say, I'm suffering personal injury. I've got problems with my breathing, I've got problems with my bowels because of this mould. And we just refer them straight to a personal injury lawyer that I used to work with.
And so if you do have that personal injury, let me know and I'll refer you to the relevant lawyer who you can look to for that sort of assistance. So we help with property damage and loss of rent claims as well. So lots of decisions around mould causing loss of rent.
In a case where the owner was ordered $447,000, so nearly half a million dollars, and then it went all the way to the Court of Appeal about whether or not they could bring their action in time.
So if you want to go into section 106.5, you might have been aware of the problem with the common property for four or five years, but so long as your loss of rent hasn't been occurring for more than two years, you can claim the loss of rent.
So that's what the effect of that Teasdale case was when it went all the way to the Court of Appeal.
And so that case gets rolled out in all the decisions nowadays about whenever there's a question about whether the application was brought within time.
Another one is Silverstein, was another mould case. Water was reported, wasn't addressed properly, turned into black mould, and the owner was ordered damages for loss of rent and alternative accommodation and loss of amenity of about $283,000.
So you can have some really big claims when we're talking about loss of rent.
And we've got an article on our website, and if you just search 106.5, there's a whole list of other decisions that we've been involved in with loss of rent claims regarding mould claims or claims regarding water entry into the unit.
So, I mean, what you're saying is if there is black mould that renders an apartment uninhabitable and it's caused by, let's say, negligence in common property, then there is a possible claim for loss of rent.
[Jimmy]
What about somebody, an owner-occupier who can't afford to go and rent somewhere else? I mean, what do they do? I mean, would you advise anybody to say, look, move out and get the mould fixed and then start looking at legal action?
[David]
Look, there's a possibility that they might be able to rely on the Strata Insurance for alternative accommodation. But, you know, that really depends on the policy and the facts of the case, but that's a possibility.
Another possibility is to get [indistinct] in the tribunal to deal with getting the item remediated quickly or relocated, relocation. You'd have to establish some urgent circumstances around that.
But yeah, the tribunal's made and continues to make many orders about mould and the owner has to prove their case. If they're going to go for section 106.5, that's the two years from the time they first started suffering that particular loss, then they can do that.
And that's a pretty straightforward claim in NCAT. We settled a lot of these. These are just ones where some recent decisions on matters that we've been involved in over a long period of time.
So lots of different loss of rent claims, alternative accommodation, property damage.
And so it's a serious issue that owners' corporations need to take seriously and address as soon as possible when the risk has arisen.
We often find that the owners' corporations get stuck because they're getting conflicting messages about whether they believe the person suffering the loss or whether they've got a scope of works from one engineer or another engineer, or they don't want to comply with the Design and Building Practitioners Act because it's like double the cost of not complying.
And so matters can easily drag on and drag out and create problems for varying owners.
[Jimmy]
Let's move on to non-performing executive committees. Can you reasonably ... I know that section 232, you can take a claim against your owners' corporation for not fulfilling their duties, but how hard is it to prove that the committee is not doing what it should do? And is that the best way to get things sorted?
[David]
Well, look, I think a good question is what are they supposed to do? So you've got a couple of varieties. You've got the small self-managed schemes. Now, typically the small self-managed scheme won't have very good books and records.
Sometimes they have zero books and records, and whenever there's an invoice, they just cut a check each way and join it together and send it off.
And when one of those owners sells, another one comes in, or they get a bit disgruntled with one another, and then they want to go, oh, look, this self-managed thing, us just doing the paperwork, it's just not worth it.
Let's just get a proper manager. And another person says no. So they sort of get locked on a blocked decision. Well, then you can easily go to the NCAT and get an order there to say, this scheme's not functioning at all. It hasn't got any books and records. It hasn't been having meetings. It doesn't have the relevant insurance. It doesn't have anything by way of statutory compliance for StrataHub and all these sort of things that go on.
And so the tribunal then simply go and make an order to say, appoint this person and whatever records there are, if any, give them to this person, and they'll go through and try and create books and records for the owner's corporation.
Now, so that's a very simple, non-conforming owner's corporation concept there.
Where it gets a little bit more complicated is where, well, they do have a Strata manager, they are keeping books and records, but the committee's making decisions which don't stack up from an objective test point of view, from which a tribunal member looks at as, well, you haven't been performing your functions satisfactorily.
So I'll give you a couple of cases here so you can sort of get a bit of an idea about when those sort of factors don't add up. And the tribunal will appoint a manager who will act like an administrator of a company, and no one has any say as far as an owner's concerned.
And at the end of that one year or two-year period, it could go back to the owners to then start voting again. But in the Silverstein case, we talked about that one briefly, and that was in relation to mould claims.
Well, when they brought the application, they also brought an application against one of the members of the Strata committee, being the secretary, to say that they should not be an office bearer for a period of one year.
And the reason for that was that they believed that that person was the person who was preventing the mould remediation from occurring.
And there wasn't any justified grounds for that person taking the attitude that they had, and they hadn't read the relevant report as to why that person, as to why that work should have been done. So they weren't fulfilling their duties properly. They hadn't read the report, they weren't fulfilling their duties properly. And so tribunal ordered that person to be removed and not to be on the committee for a year.
And then that person sought to appeal that decision. And when they appealed the decision, they were unsuccessful in that and say, yeah, that person must have dealt with some cost aspects to follow from that.
[Jimmy]
Would there be personal liability?
You could say that that person, you could say, well, they blocked certain votes and that cost in terms of damage to the building and to other apartments. Would there be any personal liability for that committee member? Or is that covered, like there is a certain amount of leeway for decisions that you make in committee?
[David]
If an individual owner, like in this case, wanted to bring an action against the committee member, they can. They need to establish that, well, they've tried to get the Amnesty Corporation to bring the action for damages, but they're not.
And then if they can establish that, so they would have put up a motion to say, you know, to sue this person for these damages, and that was refused. And then they would look to bring an action themselves against that person.
And they don't have personal liability if they acted with due skill, care and diligence and were acting in good faith. So that person would then try and bring up evidence to say, well, I did act with due care and skill and I was acting in good faith, so therefore I have no personal liability.
And therefore, whatever loss that person suffered was a result of the owner's corporation's decision, not my decision to vote against it.
[Jimmy]
That question of in good faith, I mean, if I went to my committee and said, look, there's this problem, you're not addressing it. Here's some evidence to show that it could cost money. And they said, on your way, you're just a nuisance. Would they then be acting in good faith if they'd been given information that they declined to at least assess?
[David]
Well, in this case, they hadn't read the piece of paper properly that was there explaining what needed to get done and why and didn't agree with it. And so that was found was sufficient for the trouble to think, well, you weren't fulfilling your functions properly.
And so I think it's pretty plain that if you're going to be on the committee, you've got to be prepared to put in the time to read the materials that are relevant to people putting, consider the arguments, then make an objective decision, not a personal one.
And so that's what happened there. And then if a claim is made, it is optional, so it's not mandatory, but a lot of committees will have offers bearer's insurance, which would cover any claim.
And then you can take a look to the offers bearer's insurance to fund the defence costs for defending the action against them in the event of a claim being made in those circumstances.
So they do have some cover there for that risk. But not all things are covered, not all things are covered by the insurance. So defamation is not covered.
So we often see the committee's taking a position against an owner. It might be that this owner has defrauded the owners by some thousands of dollars and has refused to pay it back. And therefore they've stopped that person getting on the committee and then there's a defamation claim.
And there's an argument about whether it was actually truthful in saying that he had defrauded them $4,000 or not, because if they can't prove that's truthful, then the defamation has taken place.
[Jimmy]
And that's really quite specific, isn't it? Because there was that case in Manly a couple of years ago where a tenant sent a note around about the chairman saying he was a bully and an idiot and he successfully sued initially. But when the tenant appealed, the Supreme Court judge said, it's just part of the cut and thrust of strata. I mean, it doesn't matter whether he's an idiot or not... it's an area of life where people become emotional and you can't hold them to the same standards that you would in a workplace, for instance.
[David]
Yeah, it's actually a really interesting decision. It's on our website if you type in defamation. But they originally ordered $120,000 for the tenant to pay and then the tenant appealed. And they found that that communication was just in the normal communication realm of communications between the owner's corporation members itself and the tenant's a member of the owner's corporation because they're an occupier and they're bound by bylaws as well. And so that was just found that was just like a normal flow of communication that was allowed to trend. Very sensible.
[Jimmy]
Moving right along to vexatious litigants.
[DAVID]
Oh, just before we do that, just to broaden this sort of understanding of when are you performing or not. So another one here, it was an application. Someone was seeking orders to get rid of another committee member for breach of their duties under the Act. And the allegation was the strata committee member was not acting for the benefit of all the owners. And the strata committee members were selected to be performing their duties for the benefit of certain owners over other lot owners. And the owner's corporation was successful in its application to remove the strata committee member.
[Jimmy]
So that was the owners.
[David]
Of course, that was all the owners.
[Jimmy]
Voting to get rid of one committee member. And that's not an unusual scenario by any stretch of the imagination that people feel, whether it's true or not, that certain owners get preferential treatment from certain members of the committee. And as we know, it's politics. If you look after people, they'll look after you.
[David]
It's the schoolyard politics.
[Jimmy]
I hope you found that interesting. Next week, we'll come back with the second part of Lawyer in the Hot Seat, which covers vexatious litigants, owners fighting with other owners and what strata committees can do, if anything, about personal disputes, and embedded network ripoff, something that really gets my goat, and a few other questions tossed in there by me and by our listeners.
You can go on the Bannermans website, that's bannermans.com.au and sign up there and you'll be able to see the webinar as a video.
So you can see both David and I chatting to each other, which might be less of a treat than you may imagine, certainly in my case.
I hope you enjoy that.
We'll talk to you again next week.
Bye.
Transcribed by TurboScribe.ai.