Bennett v Owners Unit Plan 932 (Unit Titles) - [2016] ACAT 57

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BENNETT v OWNERS UNIT PLAN 932 (Unit Titles) [2016] ACAT 57
UT 32/2015
Catchwords: UNIT TITLES – whether the air-conditioning system is common property – whether the owners corporation is responsible for repairs to the air-conditioning system

Legislation cited: Unit Titles Act 2001 s 13

Unit Titles (Management) Act 2011 ss 19, 24, 31, 125, 129

Tribunal: Senior Member J Lennard

Date of Orders:  7 June 2016
Date of Reasons for Decision:         7 June 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          UT 32/2015

BETWEEN:
JOHN BENNETT
Applicant

AND:
THE OWNERS UNIT PLAN NO. 932
Respondent

TRIBUNAL: Senior Member J Lennard

DATE: 7 June 2016

ORDER

The Owners Corporation of Units Plan 932 shall carry out all repairs necessary to ensure full operation of the air-conditioning and heating system so that the applicant’s unit is properly and appropriately air-conditioned and heated; such repairs to be completed on or before 6 July 2016. The Owners Corporation of Units Plan 932 shall bear all costs associated with the carrying out of these repairs.
The Owners Corporation of Units Plan 932 shall pay an amount of $3367 to the applicant on or before 6 July 2016. The amount is made up as follows:
(a)The Pat’s Plumbing Invoice dated 25 July 2014 in the amount of $132.
(b)The Dayn Jackson Invoice dated 3 October 2007 in the amount of $185.
(c)$3135 – $55 per week from 5 June 2015 to 6 July 2016 being the amount by which rent was reduced in order to retain a tenant during the period that the heating was not working; and
(d) the ACAT filing fee of $135.
………………………………..
Senior Member J Lennard

REASONS FOR DECISION

Units Plan number 932 is located on Northbourne Avenue. There are 160 units within the complex; 25 individual unit owners whose units are mostly subject to private residential tenancy agreements and 135 units owned by a family group and operated as a hotel known as Pavilion on Northbourne. The applicant is the owner of a unit within the complex. This is rented to tenants and is described as Suite 368/242 Northbourne Avenue.
In September 2007 the tenant reported a leak in the ceiling of the bathroom in the suite. The applicant, acting on advice from the Executive Committee that the leak was the applicant’s problem, arranged for repairs to be undertaken. The leak was identified as coming from the copper hot water pipes in the air conditioning system. The leak caused damage to the ceiling and to the carpets of the applicant’s suite. The applicant paid the costs of all repairs, and requested reimbursement from the Owners Corporation.
On 11 May 2010 the tenant reported that there was again a leak in the ceiling of the unit. The applicant arranged for repair work to be done. Pat’s Plumbing attended and their invoice states that when they attended hot water was leaking through the bathroom ceiling. The repairs are described as follows: “pulled down ceiling…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bennett v Owners Unit Plan 932 (Unit Titles)

Details

AGLC: Bennett v Owners Unit Plan 932 (Unit Titles) [2016] ACAT 57
Case: [2016] ACAT 57
Decision Date: 7 June 2016

CaseChat Overview and Summary

In the Australian Capital Territory Civil and Administrative Tribunal (ACAT), Bennett brought a claim against the Owners Corporation of Units Plan 932, asserting that the air-conditioning system in her unit was part of the common property, and the Corporation was therefore responsible for its maintenance and repair. The Corporation denied responsibility, arguing that the system was part of the unit’s internal fixtures and fittings, and thus the responsibility of the unit owner.

The primary issue for the tribunal was to determine whether the air-conditioning system in question was classified as common property under the Unit Titles Act. The tribunal had to examine the relevant legislative provisions, case law, and the terms of the Unit Title Plan to ascertain the nature of the system. Additionally, the tribunal needed to decide if the Corporation was liable for the cost of repairs and maintenance of the air-conditioning system, as well as compensation for the loss of rental income due to the system’s failure.

After considering the evidence and submissions, the tribunal found that the air-conditioning system was indeed part of the common property, as it was integral to the structural integrity and habitability of the unit. The tribunal held that the Owners Corporation was responsible for its maintenance and repairs. The tribunal also determined that the Corporation was liable for the costs of repairs, including invoices from Pat’s Plumbing and Dayn Jackson, and for the reduction in rental income due to the system’s failure. The tribunal ordered the Corporation to complete the necessary repairs and compensate the applicant for the specified amounts, including the ACAT filing fee.

The tribunal made orders that the Corporation must carry out all necessary repairs to ensure the proper operation of the air-conditioning and heating system in the applicant's unit by a specified date. The Corporation was also ordered to compensate the applicant for the costs of the repairs, the reduction in rental income, and the ACAT filing fee.

Orders

Orders of the court

1. The Owners Corporation of Units Plan 932 shall carry out all repairs necessary to ensure full operation of the air-conditioning and heating system so that the applicant’s unit is properly and appropriately air-conditioned and heated; such repairs to be completed on or before 6 July 2016. The Owners Corporation of Units Plan 932 shall bear all costs associated with the carrying out of these repairs.

2. The Owners Corporation of Units Plan 932 shall pay an amount of $3367 to the applicant on or before 6 July 2016. The amount is made up as follows:

(a) The Pat’s Plumbing Invoice dated 25 July 2014 in the amount of $132.

(b) The Dayn Jackson Invoice dated 3 October 2007 in the amount of $185.

(c) $3135 – $55 per week from 5 June 2015 to 6 July 2016 being the amount by which rent was reduced in order to retain a tenant during the period that the heating was not working; and

(d) the ACAT filing fee of $135.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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