Ceramidas v The Owners - Units Plan No 3488

[2019] ACAT 13

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

CERAMIDAS & ANOR v THE OWNERS – UNITS PLAN NO 3488 & ANOR (Unit Titles) [2019] ACAT 13

UT 25/2018

Catchwords:                UNIT TITLES – responsibility for damage – community standards and expectations – extended vacancy – community property – payment under protest

Legislation cited:        Unit Titles (Management) Act 2011 s 31

Tribunal:Senior Member G Lunney SC

Date of Orders:  30 January 2019

Date of Reasons for Decision:     30 January 2019

AUSTRALIAN CAPITAL TERRITORY  )          

CIVIL & ADMINISTRATIVE TRIBUNAL       )          UT 25/2018

BETWEEN:

JOSHUA CERAMIDAS

First Applicant

KATE CERAMIDAS

Second Applicant

AND:

THE OWNERS – UNITS PLAN NO 3488

First Respondent

ROGER SMITH

Second Respondent

TRIBUNAL:Senior Member G Lunney SC

DATE:29 January 2019

ORDER

The Tribunal orders that:

1. The first respondent pay to the applicants the amount of $1,099.68, comprised of:

   a)carpet cleaning — $783;

   b)late fees — $132;

   c)Tribunal filing fee — $156;

   d)interest — $28.68.

2. The application against the second respondent is dismissed.

………………………………..

Senior Member G Lunney SC

REASONS FOR DECISION

1. The applicants are the owners of a unit in Units Plan Number 3488. On the morning of 3 December 2017, when they were not present in the unit, a hose connected to the mains in the toilet cistern broke and water flowed out of the cistern into the apartment and into the common property in the hallway. There was consequent damage.

2. The Owners Corporation (OC) met the expenses of repair and sought reimbursement from the applicants. Since the applicants were selling the unit, they reimbursed the corporation’s claim under protest and brought the present proceedings.

3. The application seeks payment of the amount paid to the OC, late fees levied, a filing fee and some interest. There are also other orders and declarations sought which are basically ancillary to the financial orders applied for.

4. The applicants’ case is that the cistern was reasonably new and was apparently in good working order, the cause of the bursting pipe could not be established, and the applicants had taken all reasonable care in the circumstances.

5. The position of the OC was that the applicants as an owner of an apartment are responsible for the fittings or appliances in the apartment. In a letter of 7 February 2018 to the applicant, the OC concedes that the event that occurred was not reasonably foreseeable but that the applicants are the only persons in control of the apartment and that they are consequently responsible for the leak.

6. As an alternative, the OC suggests that the applicant was negligent in that they did not turn off the water supply to the cistern when leaving the apartment.

Consideration

1. The OC’s entitlement to recover the costs of repair of damage of the type in these circumstances is provided for in section 31 of the Unit Titles (Management) Act 2011. This enables recovery from a member of the corporation who has wilfully or negligently caused damage. This entitlement does not extend to the type of faultless liability or absolute liability proposed by the OC in its correspondence.

2. Section 31 is consonant with the common law situation, with the High Court abandoning earlier notions of strict liability and applying familiar principles of negligence as the basis for liability.

3. As to the submission of the OC that there was negligence in not turning off the water supply to the cistern, one must look to the ordinary expectations and experience within the community. There may be a period of time after which community standards and expectations may be breached if water is not turned off in anticipation of an extended period of vacancy. However it is not necessary to define the dividing line between what is reasonable and unreasonable, since the period involved in this case was well within the limits of reasonableness. The applicants said that there were no external plumbing fittings to the cistern, so that it may have required some plumbing expertise to isolate the cistern from the mains.

Conclusion

1. In the absence of negligence on the part of the applicants, the OC was not entitled to seek to recover the costs of cleaning the common property. The applicants paid under protest and are entitled to an order for payment of the amounts paid to the OC. There is no utility in making any of the other orders sought, and it is the understanding of the Tribunal that they are not pressed.

2. The following orders are made:

   The first respondent pay to the applicants the following amounts:

   a)carpet cleaning — $783;

   b)late fees — $132;

   c)Tribunal filing fee — $156;

   d)interest — $28.68.

   The application against the second respondent is dismissed.

   ………………………………..

   Senior Member G Lunney SC

HEARING DETAILS

FILE NUMBER:	UT 25/2018
PARTIES, APPLICANT:	Joshua Ceramidas and Kate Ceramidas
PARTIES, RESPONDENT:	The Owners – Units Plan No 3488 and Roger Smith
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	N/A
SOLICITORS FOR RESPONDENT	N/A
TRIBUNAL MEMBERS:	Senior Member G Lunney SC
DATES OF HEARING:	17 December 2018