Bennett v Owners Unit Plan 932 (Unit Titles)
[2016] ACAT 57
•7 June 2016
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 in the bathroom to get to the water leak located on top of the duct. Welded a burst section of copper pipe and tested it – tested okay.”
On 4 June 2010 the tenant reported that this thermostat for the heating unit was not working. Pat’s Plumbing attended and their invoice indicates that they checked the heating and cooling system and installed a new actuator.
In October 2010 the Owners Corporation reimbursed to the applicant the cost of the plumbing undertaken in September 2007, and the repairs to the heating and cooling units in May and June 2010.
On 10 May 2011 the tenant reported that the heater was not working. The investigation by an employee of the Owners Corporation indicated that the heating in the unit was not working because there was a broken coil in the copper water pipe. At some stage the valve to these pipes has been turned off. As a result there is no heating operating within the applicant’s unit, and no repairs have been undertaken thus far.
The heating and cooling air conditioning system within the complex is operated from a common system and is connected to each individual unit. The water pipes, air ducts and control units are all located in the roof cavities within the complex. Each individual unit has a thermostat located inside the unit so that heating may be controlled. However, it is not possible to turn off the flow of air into individual units. Thus in the applicant’s unit cold air is continually flowing from the system into the unit so that the air pumped into the unit is 14° in summer and 17° in winter. There is no temperature control available to the occupants of the applicant’s unit.
The Owners Corporation pays all costs for the operation of the heating and cooling air conditioning system.
All parties made statements that it was their belief that the air-conditioning system is situated in wall and ceiling cavities and is on common property.
It is common ground between the parties that the air-conditioning unit for the applicant’s unit is not operating: that there is a split in the copper pipe and that the stopcock controlling the air-conditioning unit has been turned off to prevent further leaks.
The Owners Corporation has acknowledged that the Owners Corporation would usually be responsible for repairs and maintenance of the air-conditioning unit. The Owners Corporation have, since May 2011, refused to arrange and/or pay for the necessary repairs. The reason given by the Owners Corporation is that they believe that during the repairs done by Pat’s Plumbing either in 2007 or in 2010 damage has been caused to the copper pipes by the tradesman and the Owners Corporation denies responsibility for these repairs.
The relevant law
The Unit Titles (Management) Act 2011 [the UT (M) Act] provides that the Owners Corporation holds the common property as agent for all owners[1] that the Owners Corporation must give all members of the corporation opportunity for the reasonable use and enjoyment of the common property. The UT (M) Act provides that the Owners Corporation has the following functions and responsibilities:
(a)To control, manage and administer common property.[2]
(b)A mandatory obligation to maintain common property.[3]
[1] Section 19(1)(b) of the Unit Titles (Management) Act 2011
[2] Section 16(1)(b)
[3] Section 24(1)(b)
The Butterworths Australian Legal Dictionary defines ‘common property’ as including such areas as stairwells, grounds and gardens, and includes all of the area of the land and building not included in any lot. In a unit complex or strata plan common property is made up of those areas which are not contained in any lot. Within a strata scheme, the lot includes a unit, townhouse, parcel, or garage that the owner of the unit has a right of ownership over. The lot is generally made up of cubic airspace and is bounded by the inner surface of the dividing walls, the under surface of the ceiling and the upper surface of the floor. Section 13 of the Unit Titles Act 2001 provides that the common property for any unit plan is specified in the units plan. The respondent has provided a copy of the floor plans for Units Plan 932, but no information is provided by either party as to whether the air-conditioning system and ducts are described as common property in the units plan.
I have adopted the usual definition of common property as being all spaces and areas not included in the unit over which the owner has control, in accordance with the definition set out above. The evidence before the Tribunal was that the air conditioning and heating unit was common to all units and that the main operating unit is located on the roof and is connected to each unit by pipes and ducts which run in the wall or ceiling cavities. I therefore find that the air-conditioning and heating unit is common property within Units Plan 932.
Section 31 of the UT (M) Act provides that the Owners Corporation may recover any cost expended on work made necessary because of the wilful or negligent act or omission of any owner.
Section 125 of the UT (M) Act applies to a dispute relating to an owners corporation for a units plan between the corporation and an owner or occupier of a unit in the units plan. A party to the dispute may apply to the ACAT for an order in relation to the other party if the application relates to the dispute.
Section 129 of the UT (M) Act provides that ACAT may make an order requiring a party to do, or refrain from doing, a stated thing and/or an order requiring a party to exercise a function under this Act. ACAT has power to make an order for compensation where one party has suffered loss as a result of the failure by another party to comply with their obligations pursuant to the UT (M) Act.
Submissions and evidence of parties
The applicant prepared detailed written submissions. The applicant seeks the following orders:
(a)the body corporate carry out repairs to the air-conditioning/heating in the unit immediately;
(b)the body corporate reimburse the applicant for all past work carried out on leaking pipes and repairs which have not already been reimbursed. The applicant claims reimbursement of the following invoices:
i. the Pat’s Plumbing Invoice dated 25 July 2014 in the amount of $132;
ii. the Dayn Jackson Invoice dated 3 October 2007 in the amount of $185;
(c)reimbursement of $55 per week from 27 April 2015, 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.
The Owners Corporation have, since May 2011, refused to arrange and/or pay for the necessary repairs. The reason given by the Owners Corporation is that they believe that during the repairs done by Pat’s Plumbing either in 2007 or in 2010 damage has been caused to the copper pipes by the tradesman and the Owners Corporation denies responsibility for these repairs. The Owners Corporation deny all liability or obligation to undertake the repairs.
The statutory obligation imposed upon the Owners Corporation in relation to maintenance of the common property is a mandatory one. Section 24(b) of the UT (M) Act specifically requires the owners Corporation to maintain utility services provided for the potential benefit of all units. This includes facilities associated with the provision of the utility services including utility conduits. A utility conduit is defined to mean a conduit of any kind for the provision of utility service, and includes, for examples pipes, wires, cables and ducts for a utility service. A utility service is defined to include gas, electricity and air services (including air conditioning and heating).
The respondents submit that since the repair relates only to the heating or cooling for the applicants unit, the Owners Corporation has no responsibility to attend to such repairs. This misunderstands the meaning and intention of the legislation. The air conditioning and heating in Units Plan 932 is a common system providing heating and cooling to each individual unit by electricity wire, water pipes and ducts situated on common property. There is only one control unit, individual occupants of individual units are not able to switch off the airflow and the body corporate bears all of the costs for electricity to operate the system. The air-conditioning and heating system in Units Plan 932 is manifestly the provision of a utility service for the potential benefit of all units.
The UT (M) Act contains no provision that would either excuse or relieve and Owners Corporation from the mandatory obligation to maintain the air-conditioning and heating system for the benefit of all units. I have nevertheless considered the evidence and arguments presented by the respondent.
The respondents base their refusal to repair or maintain the air-conditioning unit on an allegation that at some time between 2007 and 2015, work done by tradesmen engaged on behalf of the applicant caused damage to the system. The Tribunal received a written witness statement and oral evidence from Peter Wetteland, Maintenance Manager at the Pavilion on Northbourne Hotel. He explained that a copper water pipe connected to that part of the system which operates within the applicant’s unit was broken. He was not able to accurately identify the cause of the split in the pipe but surmised that it could have occurred from too much pressure being applied to the pipe during repair work. He conceded that that copper pipe and copper piping generally throughout the air-conditioning and heating system is corroded. He also conceded that work, apart from that undertaken by tradesmen engaged by the applicant, had been conducted in the vicinity of the broken pipe.
The Tribunal also received a written witness statement from Mr Pat Blanchard from Pat’s Plumbing. This witness statement confirmed the following timeline of events:
(a)Pat’s Plumbing had attended in May 2010, and identified that a section of the copper pipe was burst and that this was causing a leak into the bathroom ceiling of the unit. The burst section of copper pipe had been welded;
(b)in June 2010 Pat’s Plumbing had attended and replaced the actuator, so that the thermostat would work; and
(c)in July 2014 Pat’s Plumbing had attended to investigate a leak in the ceiling, no repair work had been done.
I am not satisfied on the balance of probabilities that the respondent has established that any of the work undertaken by tradesmen engaged by the applicant or the applicant’s real estate agent has damaged the system of air conditioning and heating. In reaching this conclusion I have taken into account that the repairs that were undertaken in 2007 and 2010; that it appears that the repairs were successful and that the heating system operated until 2014, when the tenant complained; the air-conditioning and heating system has been repaired by the maintenance team employed by the Owners Corporation and that the evidence of the maintenance manager was that 10% of the actuators within the system had been replaced and that copper piping was generally degraded; that the minutes of the annual general meeting of the Owners Corporation held on 20 October 2010 indicated that the air-conditioning works throughout the complex needed to be upgraded and that a number of repairs had been undertaken within the complex.
Conclusions
The Owners Corporation has failed to meet its obligation to maintain the common property and specifically it has failed to meet its obligation to maintain the service utility of air conditioning and heating.
As a result of this failure by the Owners Corporation the applicant has suffered loss. The applicant has expended his own money in undertaking some repairs and obtaining reports to identify the problems or necessary repairs. The applicant has lost income.
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 applicants unit is properly and appropriately air-conditioned and heated; such repairs to be completed on or before 10 June 2016. The Owners Corporation of Units Plan 932 shall bear all costs associated with the carrying out of these repairs.
Orders
The Owners Corporation of Units Plan 932 shall pay an amount of $3367 to the applicant on or before 10 June 2016. The amount of 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 healing was not working; and
(d) the ACAT filing fee of $135.
………………………………..
Senior Member J Lennard
HEARING DETAILS
FILE NUMBER: | UT 13/2015 |
PARTIES, APPLICANT: | Suzanne Bennett & John Bennett |
PARTIES, RESPONDENT: | The Owners Units Plan No 932 |
TRIBUNAL MEMBERS: | Senior Member J Lennard |
DATES OF HEARING: | 26 October 2015 |
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