Castro v the Owners Unit Plan No 246 - [2016] ACAT 111

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

CASTRO v THE OWNERS UNIT PLAN NO 246 (Civil Dispute) [2016] ACAT 111

XD 394/2016
Catchwords: CIVIL DISPUTE – electrical cables chewed by rodents in roof space – whether roof space is common property – whether electrical cables are for sole benefit of applicant – whether owners corporation was negligent in pest control on common property – whether owners corporation was aware of pest problem on common property

Legislation cited: Civil Law (Wrongs) Act 2002 ss 42, 43
Unit Titles Act 2001 ss 13, Dictionary
Unit Titles Act 1970 ss 14, 15
Unit Titles (Management) Act 2011 ss 24, 129

Cases cited:The Owners Units Plan No 1917 v Koundouris [2016] ACTSC 96
The Owners Strata Plan 50726 v Thoo [2013] NSWCA 270

Tribunal:                   Senior Member H Robinson
Date of Orders:  5 October 2016
Date of Reasons for Decision:         5 October 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          XD 394/2016
BETWEEN:
JIM CASTRO
Applicant

AND:
THE OWNERS – UNITS PLAN No 246
Respondent

TRIBUNAL: Senior Member H Robinson

DATE:5 October 2016
ORDER

The Tribunal orders that:

1.The application is dismissed.

………………………………..
Senior Member H Robinson

REASONS FOR DECISION

1.By way of this application, the applicant, Mr Castro, seeks to have the respondent owners corporation reimburse costs he incurred to rectify damage to electricity cables leading to his apartment caused by rodents and/or other pests chewing through them.

The Application

2.This application was brought within the Tribunal’s civil jurisdiction, not in the unit titles jurisdiction.
3.At the commencement of the hearing, the legal basis for the applicant’s claim was not entirely clear. In his application, he cited duties of lessors under the Residential Tenancies Act 1997 (ACT), but as he is not a tenant and the owners corporation is not his lessor, those claims were not well founded and I dismissed them. After some discussion, it became clear that the applicant was contending that the respondent has an obligation to ensure the maintenance of the common property, that this duty includes vermin control on that common property, and that the respondent failed in that duty. The claim was broadly phrased as a claim in negligence.
4.After some questioning from the Tribunal, the applicant’s arguments were clarified as being that:
(a)roof space is ‘common property’ and the owners corporation has a duty to control rodents within it, and did not do so, causing him damage;
(b)the cables are common property and the owners corporation is required to maintain and repair them, and did not do so, causing him damage; or
(c)the presence of rodents on the premises is a foreseeable safety risk and the owners corporation has a duty to take reasonable precautions against such risks, but did not do so, causing him damage.

5.Prior to the hearing, the applicant was not aware of the Tribunal’s jurisdiction to make orders under Part 9 of the Unit Titles (Management) Act 2011 (ACT) (UTM Act). When the Tribunal asked the parties whether this…

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.

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Details

Case: [2016] ACAT 111
Decision Date: 5 October 2016

CaseChat Overview and Summary

The parties involved in this case were Castro and the Owners Unit Plan No 246. Castro filed a lawsuit against the Owners Unit Plan No 246, alleging that electrical cables in the roof space of a property were damaged by rodents, resulting in significant repair costs. The dispute was brought before the Civil and Administrative Tribunal of New South Wales. The primary issues before the court were whether the roof space constituted common property, whether the electrical cables were for the sole benefit of Castro, and whether the owners corporation was negligent in its pest control measures on the common property. Additionally, the court had to determine if the owners corporation was aware of the pest problem on the common property.

The court began by examining the definition of common property and whether the roof space fell within that category. It was noted that the roof space was an integral part of the building and, therefore, considered common property. The court then assessed whether the electrical cables were for the sole benefit of Castro. It found that the cables served the entire building and not just Castro’s unit, thus they were not for the sole benefit of the applicant. The tribunal further evaluated the evidence presented regarding the owners corporation's pest control efforts and whether they had been negligent. It concluded that the evidence did not support a finding of negligence on the part of the owners corporation.

Consequently, the court dismissed Castro's application, ruling that the owners corporation was not liable for the damages caused by the rodent infestation. The tribunal held that the roof space was common property and the electrical cables were not exclusively for Castro's benefit, thus absolving the owners corporation from responsibility. No further orders were made as the application was dismissed outright.

Orders

Orders of the court

The Tribunal orders that:

1. The application is dismissed.

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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