Owners Corporation SP 69470 v Sydney Water Corporation

[2014] NSWCATCD 221

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Owners Corporation SP 69470 v Sydney Water Corporation [2014] NSWCATCD 221
Hearing dates:	12 August 2014
Decision date:	28 November 2014
Jurisdiction:	Consumer and Commercial Division
Before:	F E Gray, General Member
Decision:	The application is dismissed.
Catchwords:	Consumer claim, cause of action, limitation period
Legislation Cited:	Consumer Claims Act 1998 Civil and Administrative Tribunal Act 2013 (NSW) Sydney Water Act 1998 (NSW).
Category:	Principal judgment
Parties:	Applicant: Owners Corporation SP 69470 Respondent: Sydney Water Corporation
Representation:	Counsel: N/A Solicitors: N/A Mr Wallace for the applicant Mr Catling for the respondent
File Number(s):	GEN 14/19668
Publication restriction:	None

reasons for decision

The application

1. The applicant lodged an application with the Tribunal on 9 April 2014 seeking an order that the respondent refund a total of $19,696.82 to the applicant, being the amount the applicant paid to the respondent for the supply of water to the Strata Plan 69470.

Onus and standard of proof

2. The applicant bears the onus of proving their case on the balance of probabilities.

The hearing

3. The applicant was represented by Mr Wallace, the Secretary of Strata Plan 69470 and a member of the Executive Committee.

4. The respondent was represented by Mr Catling, who is the Co-ordinator of External Dispute Resolution for the respondent.

5. The parties confirmed that they had each filed and served the material upon which they intended to rely at the hearing. The parties each confirmed that they were ready to proceed with the hearing.

Jurisdiction – generally

6. The Tribunal has jurisdiction to determine a consumer claim pursuant to the Consumer Claims Act 1998 (‘the Act’) and s58 of the Sydney Water Act 1998 (NSW).

7. A consumer is defined pursuant to s 3 of the Act as including; inter alia, an Owners Corporation constituted under the Strata Schemes Management Act 1996.

8. Any consumer may apply to the Tribunal for a determination of a consumer claim, pursuant to s 6 of the Act.

9. A consumer claim is defined in s 3A of the Act, as follows:

(1)  For the purposes of this Act, a consumer claim is:

(a)  a claim by a consumer for the payment of a specified sum of money, or

(b)  a claim by a consumer for the supply of specified services, or

(c)  a claim by a consumer for relief from payment of a specified sum of money, or

(d)  a claim by a consumer for the delivery, return or replacement of specified goods or goods of a specified description, or

(e)  a claim by a consumer for a combination of two or more of the remedies referred to in paragraphs (a)–(d),

that arises from a supply of goods or services by a supplier to the consumer, whether under a contract or not, or that arises under a contract that is collateral to a contract for the supply of goods or services.

(2)  For the avoidance of doubt, a reference in this Act to a consumer claim includes a reference to a claim by a consumer against a supplier (for example, a manufacturer or wholesaler) who is not the direct supplier of goods or services to the consumer if the claim arises from or in connection with the supply of those goods or services by the direct supplier to the consumer.

10. Section 3 of the Act defines a supply as follows:

supply:

(a)  in relation to goods, includes supply goods by way of a contract for the sale, exchange, lease, hire or hire-purchase of goods or an alleged contract for the sale, exchange, lease, hire or hire-purchase of goods, and

(b)  in relation to services, includes provide, grant or render services for valuable consideration under a contract or for valuable consideration claimed to have been agreed to under an alleged contract.

11. Section 3 of the Act defines services as follows:

services includes any rights (including rights in relation to, and interests in, property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce and, without limiting the generality of the foregoing, includes:

(a)  the performance of work (including work of a professional nature), whether with or without the supply of goods,

(b)  the provision of gas or electricity or the provision of any other form of energy,

(c)  the provision, or the making available for use, of facilities for amusement, entertainment, recreation or instruction,

(d)  the letting of premises for vacation or recreational purposes,

(e)  the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction,

(f)  the provision of insurance cover (but not assurance cover in respect of a person’s life),

(g)  a contract between a banker and a customer of the banker entered into in the course of the carrying on by the banker of the business of banking,

(h)  the provision of credit,

but does not include rights or benefits being the supply of goods or the performance of work under a contract of employment.

12. There is a contractual relationship between the parties – refer to Ex A and s 55 of the Sydney Water Act 1998 (NSW).

The applicant’s case

13. The applicant filed and served two bundles of documents in support of their case, marked exhibits A and B respectively. The applicant also tendered a diagram illustrating the meter installation as approved and as actually installed. (Exhibit C). All of that material has been considered in relation to the matter, even if it has not been specifically referred to in these reasons.

14. The crux of the applicant’s case is as follows-

1. The applicant is a residential strata scheme, named SP69470, which came into existence in on 28 February 2003.

2. The building also contains a separate commercial strata plan, named SP 69948, which came into existence some time later in 2003.

3. The respondent issued a Notice of Requirement to the developer in 2002.

4. The building developer engaged a plumber to install water meters in compliance with a Notice of Requirement issued by the respondent. The Notice of Requirement apparently stipulated that a water meter with a 40mm capacity was to be installed for the residential SP69470, and two separate water meters, being one each, for the commercial lot of SP 69948 with a 25mm capacity. Refer Ex C

5. The plumber installed a water meter and the two check meters at the rear of one of the commercial lots in SP69948. This was not in compliance with the Notice of Requirement.

6. The respondent’s employees conducted an inspection of the premises on 24 October 2003. The applicant asserts that the respondent’s negligence arises from the failure by the respondent on that date to ascertain that there was no compliance with the Notice of Requirement.

7. The applicant only became aware of the issue when they received a large water bill for the quarter ending 07 March 2011. In the twelve months prior to that date a restaurant had opened in one of the commercial lots, which resulted in a large increase in the water usage. Had that not occurred, the applicant would not have become aware of the issue.

8. The applicant was advised by an employee of the respondent of the situation of the combined water usage following a site inspection by that employee on 20 May 2011.

9. The meters were finally separated on 10 October 2011.

The respondent’s case

15. The respondent filed and served a bundle of documents in support of their case, marked exhibits 1. All of that material has been considered in relation to the matter, even if it has not been specifically referred to in these reasons.

16. The crux of the respondent’s case is that they are not liable as the water meters and check meters were installed by the developer, not Sydney Water.

17. It is to be noted that neither party provided a copy of the Notice of Requirement. There was no evidence from the plumber who initially installed the water meter and the two check meters.

Jurisdiction –Was the application lodged within time?

18. Section 7 of the Act grants the Tribunal jurisdiction in respect of consumer claims. It includes, relevantly, jurisdiction to determine matters where the goods have been supplied within New South Wales. Section 7(4) of the Act deals with the time limitation periods in relation to the Tribunal’s jurisdiction. A claim must be made within 3 years of the date of the cause of action accruing.

19. Section 7(4) of the Act states as follows:

(4) Limitation periods

The Tribunal does not have jurisdiction to hear and determine a consumer claim if any of the following apply:

(a)  the cause of action giving rise to the claim first accrued more than 3 years before the date on which the claim is lodged,

(b)  the goods or services to which the claim relates were supplied (or, if made in instalments, were last supplied) to the claimant more than 10 years before the date on which the claim is lodged.

20. A consumer claim is not limited to a contractual claim, it can include a claim 'arising out of' the contract, whether the cause of action is one which arises out of tort, contract or a legislative provision. Fairey Australasia Pty Ltd v Joyce and Another (1981) 2 NSWLR 314.

21. It is to be noted that Yeldham J in Fairey was of the view that a distinction between the underlying cause of action was an 'irrelevant consideration'. However, the relevant law being considered in Fairey was the Consumer Claims Tribunal Act 1974, the predecessor of the Consumer Claims Act 1998 (NSW). Under the present legislation the nature of the cause of action is a relevant consideration in relation to the limitation period stipulated pursuant to s 7(4) of the Act.

22. The applicants argue that the cause of action accrued on 24 May 2011 and have lodged their application within the required time period for the following reasons:

1. The cause of action relied upon by the applicant is that the respondent acted negligently;

2. The cause of action accrued on the day Sydney Water advised the applicant of the unauthorised connection, being on 20 May 2011;

3. As the provision of water is by instalments, the provisions of s 7(4)(b) of the Act do not apply, as the date of the last instalment was not more than 10 years before the date on which the claim was lodged.

The applicant states in their application that the respondent 'allowed the owners of the retail shops to illegally divert water that was being billed to the Owners Corporation SP69470. It either knew or should have known that this direction was occurring and yet it failed to act'. (Refer p4 of the attachment to the application).

23. The applicant has not relied upon an assertion that the respondent has breached the contract. The application asserts in their application that the basis of the claim is in negligence.

Cause of action

24. A cause of action has been defined as being 'every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved'. Read v Brown (1882) 22 QBD 12, approving the earlier decision in Cooke v Gill (1) 24 WR 710.

25. If the cause of action is one for breach of contract, then the date cause of action will accrue is the date of the breach of the contract, as opposed to when the resulting damage is suffered. Gibbs v Guild (1882) 9 QBD 59.

26. In the case of a cause of an action in tort, such as negligence, the cause of action accrues when the damage is discovered.

27. The cause of action identified by the applicant in their application is that of negligence.

28. The applicant asserts that they were not in a position to know that the applicant was paying for the commercial premises water usage at the premises, caused by the failure of the respondent to remedy the incorrectly installed meter and check meters, until they received the large water usage bill in 2011. The applicant asserts in their submissions that the bill was received in April 2011. The applicant further asserts that they did not have actual knowledge of the incorrect meter installation until the email provided by the respondent dated 20 May 2011.

29. The applicant lodged their application with the Tribunal on 9 April 2014.

30. The applicant’s documents do not include a copy of the relevant bill, only a summary of the bill prepared by the respondent and attached to the Energy and Water Ombudsmen NSW (‘EWON’) report dated 1 April 2014. The bill summary states that the charge for the water usage for the period 9 December 2010 to 7 March 2011 was in the amount of $9,929.22. The EWON report also stated that the applicant had advised EWON that they received the bill on 21 March 2011.

Findings

31. The applicant bears the onus of proving their case on the balance of probabilities.

32. The Tribunal is satisfied of the following matters in relation to jurisdiction, on the balance of probabilities:

1. The applicant is a consumer, as defined in s 3 of the Act;

2. The respondent is a supplier, as defined in s 3 of the Act;

3. The claim before the Tribunal is a consumer claim, as defined in s 3A of the Act;

4. The goods and services were supplied in New South Wales;

5. The monetary jurisdictional limit of the Tribunal at the time the claim was lodged was $30,000.00.

6. The date the cause of action first accrued was on 21 March 2014, being the date the applicant was first aware of the increased water usage charge. The applicant therefore had a period of three years from that date in which to lodge their claim against the respondent.

7. The application has therefore been lodged out of the time limit stipulated in 7(4)(a) of the Act. The provision is one which goes to jurisdiction and there is no available discretion to grant an extension of time.

33. In coming to this determination the Tribunal has had regard to all of the evidence adduced by the parties. The Tribunal has been particularly persuaded by the following evidence in making the above determination-

1. The contents of the application lodged, including the endorsement by the Tribunal Registry that the application had been received by the Tribunal on 9 April 2014.

2. The account summary of the water usage for the applicant for the period from 09 December 2010 and, in particular, the summary for the period 9 December 2010 to 07 March 2011, attached the EWON report. (Refer Ex A, p100-101).

3. The contents of the account summary for water usage charge prepared by the applicant, which provides evidence that the bill for the quarter ending 7 March 2011 indicated a 14 fold increase in water usage since the last actual, rather than estimated, meter reading occurred on 7 June 2010. (Refer p311 of Ex A).

4. The reference in the EWON report that the applicant’s received the above bill on 21 March 2014. (Refer Ex A p101). It is to be noted that the Tribunal has not had regard to any of the findings made in that report

5. That is, the Tribunal is satisfied that the applicant was on notice shortly after 7 March 2011 that there was an issue with the water meter reading, upon receipt of the water usage bill for that quarter. The Tribunal is satisfied that the date the bill was received was on 21 March 2011. It is from that date that the cause of action arises, being the date the damage was known, rather than the date of the inspection by the respondent’s employee on 21 May 2011.

Orders

34. The application is therefore dismissed as the Tribunal does not have jurisdiction to determine the matter, as the application was lodged out of the time period stipulated in the Act.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 10 February 2015