Garcia v The Owners - Units Plan 10 - [2017] ACAT 91

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

GARCIA v THE OWNERS - UNITS PLAN 10 (Unit Titles) [2017] ACAT 91

UT 24/2016
Catchwords: UNIT TITLES – claim for loss of rent caused by delay in repairing significant damage to unit – whether an owners corporation is liable to pay an owner when a claim is denied by an insurer – whether there is an obligation on an owners corporation to pursue an insurance claim in a certain timeframe

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 16
Unit Titles (Management) Act 2011 ss 7, 10, 16, 19, 24, 29, 100, 125, 129

Cases cited:Body Corporate Strata Plan No. 4303 v Albion Insurance Co Ltd [1982] VR 699
Castro v The Owners Unit Plan No. 246 [2016] ACAT 111
Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397

List of
Texts/Papers cited: Alex Ilkin, NSW Strata and Community Schemes: Management and the Law (4^th edition, 2007)

Tribunal:                   Senior Member R Orr QC
Date of Orders:  6 November 2017
Date of Reasons for Decision:         6 November 2017
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          UT 24/2016

BETWEEN:
VALENTIN GARCIA
Applicant

AND:

THE OWNERS - UNITS PLAN 10

Respondent

TRIBUNAL: Senior Member R Orr QC

DATE:6 November 2017
ORDER

The Tribunal orders that:

1. The application under the Unit Titles (Management) Act 2011 by Valentin Garcia against The Owners – Units Plan 10 dated 4 October 2016 is dismissed.

………………………………..
Senior Member R Orr QC

REASONS FOR DECISION

1.Valentin Garcia (Mr Garcia or applicant) is the owner of a unit in Watson. In these proceedings Mr Garcia brings an application under the Unit Titles (Management) Act 2011 (Unit Titles (Management) Act) that The Owners –Units Plan 10 (Owners Corporation) in relation to his unit pay for the loss by him of rent in relation to the unit, in an amount of $7,857, for the period August 2014 until March 2015 (claim). He argues that this loss was caused by delay by the Owners Corporation in claiming on the insurance for, and then repairing, significant plumbing damage to his unit. The plumbing damage and loss of rent are covered by the insurance taken out by the Owners Corporation, but the insurer has to date denied liability for the loss of rent claim.
2.Wright Dunn Real Estate Pty Ltd (Wright Dunn) manage the rental of the unit on behalf of Mr Garcia. Civium Strata People (Civium Strata) is the manager for the Owners Corporation.

Summary of decision

3.Mr Garcia did not indicate the legal basis for this claim. As to the possible bases, there was no evidence of a relevant agreement between Mr Garcia and the Owners Corporation. The requirements for a claim in negligence were not articulated or established.
4.The relevant terms of the Unit Titles (Management) Act do not expressly give rise to such a liability. It is true that under section 100 of the…

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: [2017] ACAT 91
Decision Date: 6 November 2017

CaseChat Overview and Summary

Garcia, a unit owner, sought compensation for loss of rental income due to delays in repairing damage to his unit, which was caused by a burst pipe. The insurance claim was denied, and Garcia argued that the owners corporation was liable for the losses. The matter was brought to the Queensland Civil and Administrative Tribunal (QCAT) under the Unit Titles (Management) Act 2011. The central legal issues were whether the owners corporation could be held liable for the losses incurred by Garcia, and if there was a duty on the corporation to pursue the insurance claim within a specific timeframe. The Tribunal examined the obligations of the owners corporation under the Act and relevant insurance policies. It found that the owners corporation had no liability to Garcia because the insurance policy did not cover the damages, and there was no obligation to pursue the claim within a specific timeframe. Therefore, the Tribunal dismissed Garcia’s application. The Tribunal concluded that the owners corporation fulfilled its duties under the Act and the insurance policy, and that the insurance company's denial of the claim was justified.

Orders

Orders of the court

The Tribunal orders that:

1. The application under the Unit Titles (Management) Act 2011 by Valentin Garcia against The Owners – Units Plan 10 dated 4 October 2016 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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