Robert Vallance v ACT Housing
[2008] ACTRTT 4
•13 May 2008
AUSTRALIAN CAPITAL TERRITORY
RESIDENTIAL TENANCIES TRIBUNAL
CITATION: Robert VALLANCE –V- ACT HOUSING ACTRTT 4 (2008)
RT 80 of 2008
Catchwords: Joinder of Owner Corporation; sewerage spills.
Tribunal:A. Anforth, Member
Date: 13 May 2008
IN THE RESIDENTIAL )
TENANCIES TRIBUNAL ) RT 80 of 2008
OF THE AUSTRALIAN )
CAPITAL TERRITORY )
APPLICANT: ROBERT VALLANCE
(Tenant)
RESPONDENT: COMMISSIONER FOR SOCIAL HOUSING FOR THE ACT
(Lessor)
INTERIM DECISION
Tribunal: A. Anforth, Member
Date: 13 May 2008
The Applicant’s claim is amended to include the claim for the rear fly screen door;
The Owners- Unit Plan No 1751 known as Karelia Park are joined as a party to these proceedings;
The matter is adjourned part heard for further directions.
--------------------------------- A. Anforth
Member
13th May 2008
IN THE RESIDENTIAL )
TENANCIES TRIBUNAL ) RT 80 of 2008
OF THE AUSTRALIAN )
CAPITAL TERRITORY )
APPLICANT: ROBERT VALLANCE
(Tenant)
RESPONDENT: COMMISSIONER FOR SOCIAL HOUSING FOR THE ACT
(Lessor)
REASONS FOR INTERIM DECISION
The case in outline:
The Applicant is the tenant of premises at 37/25 Aspinall Street, Watson in the ACT (Flat 37, Block 17,Section 61 Division 125) which he holds under a residential tenancy agreement from the Respondent as his landlord. The residential tenancy agreement commenced on 7 October 1999 and is in the prescribed terms provided for in the schedule 1 Residential Tenancies Act 1997.
The premises are a two bedroom unit of the ground floor of a two level strata complex [Unit Plan 1751] known as Karelia Park. The strata manager is Independent Body Corporate P/L t/as Independent Property Group as agent for owners corporation (The Owners-Unit Plan 1751) (O/C).
On 9 December 2007 the Applicant’s unit suffered an inundation with sewerage from a pipe blockage. The units had a long history of plumbing problems since 2003 causing different forms of water/sewerage problems. The Applicant maintains that the Commissioner was aware of these problems via the Commissioners involvement on the O/C and had failed to take effective action to remedy the plumbing problems over the years. It was this failure on the part of the Commissioner and the O/C that caused the sewerage spill on 9 December 2007.
The Applicant complains that the sewer repairs were not effected until 11 February 2008 during which time the Applicant suffered a loss of use of various facilities in the unit and associated distress and anxiety. The Applicant further complains that although the Commissioner acted in a timely manner to remove the soiled carpet, the Commissioner did not disinfect the premises or replace the old carpet with new carpet in a timely manner. This caused further distress and inconvenience to the Applicant.
The Applicant asserts a breach of prescribed terms 55, 58, 59 and 60 of the Residential Tenancies Act 1997 arising from the fact of the sewer spill on 9 December 2007 and the Commissioner’s failure to remedy the problem until 11 February 2008 and seeks compensation for the distress and inconvenience suffered.
The Commissioner for his/her part, maintains that no such breach has occurred in that:
(a) the responsibility for the plumbing problems rested with the O/C and was no the Commissioner’s responsibility:
(b) in any event the Commissioner did all he/she reasonably could, following the spill on 9 December 2007 and was not guilt of any undue delay.
Both parties have pointed to the O/C as the party that was primarily responsible for the alleged failure to remedy a long standing plumbing problem and for the delay in responding to the spill on 9 December 2007.
Both parties have requested that the Tribunal consider its power to join the O/C as a party pursuant to sections 102(1)(d) and 115B of the Residential Tenancies Act 1997 with a view to awarding any compensation that may be due to the Applicant against the O/C rather than awarding the compensation against the Commissioner.
The Tribunal adjourned the hearing to consider this issue and deliver an interim decision on that jurisdictional issue.
10. The Tribunal’s decision to join the O/C as a party does not mean that the Tribunal has come to any finding of fact on the merits of the Applicant’s claim. The O/C will have all the rights of a party to participate in the fact finding inquiry by the Tribunal.
The case in detail:
11. On 5 February 2008 the Applicant lodged an application with the Tribunal seeking an order that the Respondent repair the sewer line to his unit and unspecified “damages”. The Applicant annexed to his application a detailed outline of the history of the matter, a DVD of his unit and a copy of the residential tenancy agreement.
12. In the detailed history the Applicant contended that his unit had a history of drainage problems starting as early as 18 January 2003 when leaking occurred into his unit from unit 39 above him. The first of the relevant drainage problems affecting the Applicant’s unit occurred on 17 December 2004 when his unit was inundated from a blocked storm water drain. The Respondent was informed of the problem. The Applicant contended that neither the O/C nor the Respondent took any steps to remedy the problem.
13. On 9 October 2005 a blockage issue arose causing sewerage to discharge on to the floor of the common property garage. The immediate blockage was cleared by a plumber but the Applicant contends that the cause of problem was root growth and a cracked pipe, neither of which were fixed at the time. It is not apparent from the Applicant’s history whether his unit suffered any damage from the blockage or whether the Respondent was ever informed of the problem.
14. At a unidentified date in 2006, a sewerage eruption occurred to unit 34 adjacent to the Applicant’s unit to which the Respondent attended. Following this incident some work was done by the O/C to the sewer plumbing which resulted in six units (including the Applicant’s) being linked to the same exit sewer plumbing. The Applicant contends that this arrangement was unlawful and caused an overload on the exit sewerage plumbing which serviced his unit.
15. On 9 December 2007 a sewer blockage occurred and unit 39 immediately above the Applicant’s unit, was inundated with raw sewerage. Although it is not entirely clear from the Applicant’s history it seems that his unit was also emersed in raw sewerage. The Applicant was told not to use his toilet until further notice. Plumbers attended and cleared the immediate blockage again causing sewerage to spill onto the communal garage floor. The Respondent was put on notice and instructed Morgan’s Carpets to attend. Morgan’s apparently removed the sewerage affected carpet but nothing else.
16. There then followed a sequence of attempted communications between the Applicant and the Respondent (or their agent Spotless) and between the Applicant and Morgan’s Carpets to have the Applicant’s unit disinfected and the carpets replaced. As of Christmas day 2007 no action had been taken and the Applicant was still unable to use his toilet and was unable to flush the toilet to clear the line. There was a pungent sewerage odour arising from the toilet which permeated the unit.
17. On 27-28 December 2007, Ready 4 Plumbing attended and apparently found the cause of the sewer line blockage due to root egress and a fractured pipe. A copy of the DVD taken by the plumbers was provided to the O/C and the Respondent by the Applicant on 3 January 2008.
18. The new carpets were laid on 24 January 2008. As at the time of filing his application, the Applicant contended that the premises had not been disinfected and that the plumbing still had not been fixed leaving the possibility of it recurring.
19. The matter was listed before the Tribunal on 25 February 2008 and the parties so notified. On 11 February 2008 the Applicant filed the following submission:
The Member, ACT Magistrates Court, RTT.
In the matter listed for hearing (RT 80 of 2008) before the Residential Tenancies Tribunal, scheduled for hearing in room 4 of the ACT Magistrates Court at 2 PM on Monday 25 February 2008, before a referee/member of the RTT, the below mentioned is tendered.
1; Formal application was lodged with the Court Registrar on Tuesday 5/2/08 at 10 AM.
2; BA Plumbing observed working on sewerage line at 9:00 AM on Thursday 7/2/08. Returned at 08:00 hr on Monday 11/2/08 to complete cement fixture of new pipe section. New pipe to 1 metre plus IP.
3; Presumably a demanded to rectify sewerage was given to Independent Body Corp., manager for strata title plan 1751, by the Commissioner for Housing, upon receipt of, or notification of, an impending RTT hearing, naming ACT Housing as respondent.4; No written or verbal notification of satisfactory repair has been offered to myself as claimant. Plumber asked on 11 /2/08 to submit repair report in writing to Independent for despatch to Housing
5; The request for compensation remains before the Tribunal.In the matter of "demand to repair sewerage line", providing the respondent, ACT Housing provide to the Court evidence that the sewerage line in dispute has been satisfactorily repaired, then that matter can be eliminated from a hearing. Repair or replacement of the damaged pipe sections can only be construed as partial rectification. Removal of the prime cause, Photina roots/shrubs must be accomplished before future problems can be eliminated.
A request to the Tribunal in the matter of compensation or damages in restitution for loss of tenancy privileges subject to cl 52 and cl 58 of the RTA (97) is maintained.
The lessee, Robert Vallance, bases a fiscal claim on below mentioned relevant facts.
1: The lessor (ACT Housing) did have the facts of a sewerage line fault on 19/10/2005 at which time BA plumbing submitted an account for jet Rodding of the 37/39 sewerage line dated 3/11/2005. In that ACT Housing staff did not receive, correlate or investigate expenditure provided in the 2006 Annual Body Corporate minutes is tantamount to neglect of it's property management obligation. ACT Housing directed attendance of various trades people listed under "water damage" should have been sufficient to cause investigation.
2: The absence of a property manager servicing Karelia Park (the property) for the period September 2006 until the present (February 2008) is relevant to lack of action or concern by ACT Housing.
3: Notification to and action by Spotless on the 10/12/07 was an acceptance and proof of a serious sewerage deficiency. The inability of Spotless to authorise repairs due to the subject property being a body corporate matter was, and still is, an urgent priority at the senior executive level within ACT Housing.
4: No claim is made against any other events or matters outside of the current hearing.My compensation claim is covered under cl 52,55 and 58 of the RTA (97).
I seek redress for loss of privileges listed under the cl 52,55 and 58 of the act, namely; anxiety, stress, environmental and occupancy neglect, as well as child caring and diminished living conditions over a two month period from initial sewerage out flow on 9/12/2007 up until repairs finalised on 11/2/2008. I also include the significant disruption and physical work placed on a 69 year old diabetic in having to pack, remove and store the entire household contents in order to re-carpet the apartment. I might add everything had to be re installed upon re-carpeting. Rapid onset of hypoglycaemia is occasioned in a diabetic by stress and energy depletion. Hypoglycaemia is the inadequacy of glucose to the brain and endiocrinological organs.. Mental anguish includes, loss of sleep, (awakening constantly in anticipation of stench and back flow gurgling) gastric attacks, irritability, and a chronic state of fear of an imminent sewerage back flow. Christmas dinner (item 17) of 2007 is a prime example of the living conditions to which I have been unnecessarily subjected. In consideration of value of a claim, whilst I have no experience in such calculations, I would assume a payment to include as a basis; the value of rental paid during the period, equating to 5 fortnightly rental payments of $130, plus an award that relates to the severity of personal disadvantages. $650 in rentals have been maintained throughout this period.
My own unqualified assessment's as a basis for compensation, is 3 times the paid rental or $1950.00. Robert Vallance, unit 37 of 25 Aspinall ST, Watson, 2604
Tribunal jot points
In support of compensation claim
Address delivery time to be under 10 minutes
1. Request to "The Member" for permission to address tribunal
The member, brief summary of litigation. ACT Housing legal representation, why?, validity of dhcs documents. Will dhcs accept the evidence?, or will Tribunal rule on compensation?, additional evidence with DVD and on file (display to Tribunal for confirmation or viewing)2. Concept of legislation and law.
My lay man 's understanding of Legislative drafting (time and circumstances) omissions, common sense. Intent of law, ambiguity, interpretation of . let. Powers of a Tribunal (very brief description)3. Corrections to dates or reference item number.
document "A ", is a Running file, purpose, proof reading errors, abridged copy handed to dhcs Independent on 31 2008, submitted to court addressee 's on 5 2 08 Statement of particulars
(1), item 8. "Invoice from B.I Plumbing dated 311 2006" should read "3 11 2005
(2), item 13. "Sunday 19/12/2008" should read "Sunday 9 12 2007"Document "A "
(1) item 1. Bill Wood letter on file, identifies dhcs negligence
(2) item 3, initialled by tenant Manuela Rudolf, item 11, omitted due to oversight
(3) item 8, BA Plumbing invoice for S163, $240 listed as paid by Independent on 3 12 2005 confirms work carried out on 19 10 2005. IP is at car park position 39.
(4) item 14, dysfunctional contractual supervision of Spotless
(5) items 21,22 should be deleted in entirety as irrelevant to Tribunal hearing, matter between lessee and lessor and now redundant.
(6) item 24 is subject to alteration in so much as "ACT Welfare Rights and Legal Centre" have no connection with my application before the Tribunal and do not represent me as I am deemed competent to represent my own case. Welfare Rights is only for the orally disadvantaged
(7) item 24, further reference is made to matters between dhcs tenant, Ansje Zandstra, Welfare Rights and dhcs. I believe a separate hearing is to be listed to the Tribunal by ACT Welfare and Legal Centre on Ms Ansje Zandstra's behalf. Disclosure may be prejudicial.5 ACT Housing directed negligence over time frame (9/12/2007-11/2/2008)
Basis for compensation claim, failure to act. no directions to Spotless, no Area Manager, no direct contact with dhcs. XMAS shutdown. No dhcs internal action between Property. Legal and Client Sen-ice. No understanding of RTA (cl 52-60 "a to m") or capacity to intervene in Unit Titles6 Perceived loss of tenant rights under the Unit Titles Act
A tenant has no input or obligation to be informed, attend or receive minutes or records. A few proxy votes can sublimate any costly problems; refer to Annual General Meeting 2006 report7 Independent Body Corp. strata plan 1751 management, neglect, discrimination
Proxy votes tied to Chair/Independent B&T Homes preference, sellers preference. Blatant discrimination against dhcs tenants, (date of complaint 9/12/2007) Ms Hoo unit 41 sewerage repair immediate. Owners body corp. veto of repairs'1 Minutes?
20. On 21 February 2008 the Respondent filed the following submission:
1. The respondent is a Government Authority responsible for the leasing of the premises located at 37 Karelia Park, Aspinall Street, WATSON 2602 in the Australian Capital Territory also known as Flat.
2. The respondent lessor is the registered proprietor of the premises by lease, pursuant to the Real property Act 1925.
3. On 7 October 1999 the applicant tenant in respect of the premises signed a Residential Tenancies Agreement.
4. In reply to the applicant's application for an order for "Lessor repair sewerage line" and a request for the Tribunal to award damages (the applicant's assessment of compensation is $1,950.00) the following history of events is offered:
14 JANUARY 2006
Tenant reported water leak through ceiling.14 January 2006
Plumber attended and found broken water pipe in unit above.
Work order was referred to the private owner.10 DECEMBER 2007
Tenant reported sewerage spill.
Subcontractor attended and advised other contractors were on site from Body Corporate, Call Centre Operator contacted tenant who advised that the plumbers are there at the moment, it is a body corporate and that someone will still need to attend to have a look at the carpet.On 10/12/07 Carpet contractor (Morgan’s) lifted the carpet. Removed damaged carpet and applied antimicrobial spray. The contractors also collected and disposed of damaged carpet, removed smooth edge and measured for carpet.
21 DECEMBER 2007
Morgan’s advised on 21/12/07 that carpet would be required to be replaced and supplied a quote for this replacement. It was found that the carpet quoted on was incorrect carpet for DHCS and a new work order would be raised to flooring subcontractor.27 DECEMBER 2007
Mr Vallance reported smell of sewerage.28 DECEMBER 2007
Plumber attended (Ready 4 Plumbing) and did a camera inspection of the drains. Subcontractor reports tree roots and water pooling in the line - Body Corporate responsibility no further action required by Spotless. Video supplied to Body Corporate - ACT Strata Management.10 JANUARY 2008
New work order for replacement carpet and underlay to DHCS standard (Isa St Carpets).14 JANUARY 2008
Quote supplied, notes stated that tenant requesting a professional furniture removalist to move his furniture. Spotless notify DHCS.19 JANUARY 2008
Spotless notified by DHCS that tenant had moved most of his items.21 JANUARY 2008
DHCS give Spotless authority to hire furniture removalists24 JANUARY 2008
Removalists advise the remainder of heavy furniture has been removed. Carpet Layers (Isa Street Carpets) replace carpet and underlay to unit.5. The respondent notes that Mr Vallance also submits that Housing ACT were aware of the sewerage line fault back in 2005. The respondent notes that the property is part of a Body Corporate Units Title, which is ultimately responsible for the repair of sewerage lines.
6. On 12 February 2008, Karen from Independent Property Group phoned Housing ACT and confirmed that the plumbing works to the offending sewerage line had been completed.
7. The respondent submits that Mr Vallance’s claim for compensation be dismissed as the respondent (and its contractors) took all reasonable actions, so as not to disadvantage Mr Vallance.
21. On 25 February 2008 the Applicant appeared in person before the Tribunal and Ms Stosic appeared on behalf of the Commissioner. The matter was listed for directions only. The Tribunal discussed the relevant principles of law with the parties and issued directions that:
(a) the Commissioner obtain and serve the O/C minutes from 1 January 2002 within 2 weeks
(b) the Applicant file and serve by 24 March 2008 a chronology and a statement relating to the inconveniences and distress suffered.
(c) The Commissioner file and serve her submissions on the law and evidence by 14 April 2008.
22. On 11 March 2008 the Commissioner filed the O/C minutes as directed. A perusal of those minutes disclose the following entries relating to the Applicant’s plumbing problems:
·On 18 March 2002 there was reference to a problem with flooding from an adjacent property, leaking roof line and leaking balcony.
·On 22 August 2002 there is a reference to ACT Urban Services attempting to rectify a generally storm water flooding issue in North Watson.
·On 22 October 2002 there is a reference to obtaining quotes for Ag. pipe for drainage to the rear of the units.
·On 17 February 2005 there is a reference to obtaining a quote for an additional downpipe near a particular unit [number not disclosed] to alleviate water flooding on the rear balcony.
·On 26 Sept 05 there is a reference to water still coming thorough the garage walls.
·On 14 February 2006 there is a reference to commissioning a plumber to check the pipe in the car park space and report on the cause of flooding in the car park.
·On 31 August 2006 the O/C recorded its view that the problems with the roof and gutters of the complex were related to poor construction techniques by the original builders.
·On 28 September 2006 there is a reference to water entering the basement.
·On 11 December 2006 there was more discussion of the roofs and downpipes and need to investigate any blockage of the downpipes.
·On 28 May 2007 there was a reference to a water leak that occurred on 27 December 2006 and the need to locate the source of the leak.
·On 3 October 2007 there is a vague reference to urgently needed plumbing repairs.
23. On 26 March 2008 the Applicant filed range of documents in response to the procedural directions of 27 February 2008.
24. In the covering submission the Applicant indicated that the resident of unit 34 of the strata complex, Manuela Rudolf, is also a tenant of the Commissioner and wishes to be joined as a party although she will not personally appear and appoints the Applicant as her agent. There was appended a statement purportedly from Ms Rudolf which said that her issues with the Commissioner were the same as those of the Applicant.
25. The Applicant maintained that the Commissioner had not properly complied with the directions of 27 February 2008 in that the Commissioner had not provided any of the invoices or reports from plumbers who had attended the premises in recent years.
26. In the same submissions the Applicant sought to amend his application to include a claim for the repair of a fly screen door on the rear patio which was accidentally damaged by his son walking through it. The Applicant said that the accident occurred because the “horizontal sight bar” on the door had become detached through wear leaving no warning to users of the presence of the fly screen. The Commissioner has apparently made demand on the Applicant to repair the door.
27. The Applicant appended a copy of a letter from the then Minister for Urban Services, Mr Bill Woods, dated 3 April 2004. The letter acknowledged the storm water difficulties in the Watson area. The letter contended that the flood in the Applicant’s premises was due to inadequate guttering which is a body corporate problem. The Minister said that his officers did not attend all body corporate meeting that they were entitled to attend due to administrative pressures, but minutes of the meetings were obtained. In the usual case the Commissioner appoints the chairperson of the body corporate as his/her proxy.
28. The Applicant appended the following financial records of the O/C:
(a) Statement of Income and Expenditure for the financial year ending 31 August 2006 showing $1056 spent on plumbers.
(b) A document entitled Accounts payable for period 1 September 2005-1 September 2006 showing approximately $8600 for water damage repairs of various descriptions;.
29. In the same submission the Applicant said that he was claiming damages for 62 days of inconvenience from 9 December 2007 until the sewerage line was repaired on 11 February 2008. The Applicant said he is a 69 year old diabetic. He relied upon prescribed terms 52,55,58 and 60 of the Residential Tenancies Act 1997 and maintained that the Commissioner had not carried out the repairs “as quickly as possible”. The Applicant said that his case was principally based on the failure of the Commissioner to take action to compel the O/C to do something about the repair of his unit following the flood on 9 December 2007. He suffered the inconvenience of:
(a) Bare concrete floor until the carpets were relayed
(b) Nails protruding from the floor where the carpet had been
(c) Stench throughout the house
(d) Packing and storing his goods in the unit
(e) Loss of Christmas good cheer in his unit
30. It is not clear from the Applicant’s submissions whether he in fact lost the use of the toilet in his unit during these 62 days.
31. On 17 April 2008 the Commissioner filed a further submission. The Commissioner opposed the joinder of Ms Rudolf’s claim in the present matter on the basis that no particularisation or investigation of this claim has occurred to date. The Commissioner opposed the amendment of the Applicant’s claim to include the issue of the flyscreen door on the basis that the Applicant allegedly admitted responsibility for the damage.
32. The Commissioner pointed to his/her lack of power to carry out any plumbing on the common property of the strata complex. The Commissioner contended that:
(a) Sewer repairs had been carried out in 2005 and the Commissioner had no further notice of the need for repairs until 10 December 2007 when advised of the spill in the Applicant’s unit;
(b) Immediate and reasonable steps were taken by the Commissioner to remedy the spill in the Applicant’s unit;
(c) The Commissioner receives a copy of all O/C minutes;
(d) The Commissioner removed the carpets from the Applicant’s unit on 10 December 2007;
(e) The Commissioner was notified of a second spill on 28 December 2007. The Commissioner had a plumber carry out a camera inspection of the pipes on 28 December 2007 and discovered root blockage which was reported to the Body Corporate;
(f) The Commissioner arranged a furniture removal to shift the Applicant’s furniture to facilitate the carpet laying, notwithstanding that the Applicant had already moved much of his own furniture;
(g) The carpet was re-layed on 24 January 2008.
33. On 24 April 2008 the Applicant filed further unsolicited submissions in response to the Respondents submissions of 15 April 2008. The submission added nothing new and amounted to no more than an intemperate attack on the honesty of the Commissioner’s representative.
34. The matter was next before the Tribunal on 28 April 2008. The Applicant appeared in person and Ms Skye-Ward appeared for the Commissioner. Both parties indicated that had filed all the factual material and submissions on the law they intended to rely upon.
35. The Tribunal raised the issue of whether the O/C ought to be joined as a party and whether the Tribunal had power to do so. The parties attention was direction to section 115B of the Act. Both parties indicated their ascent to the joinder of the O/C.
36. The Tribunal indicated that it would adjourn the matter and consider the issue of its power to join the O/C and its power to make any orders affecting the O/C. The parties were advised that the Tribunal would give its interim decision on this jurisdictional issue in writing after which further consideration would be given to the conduct of the hearing.
The issue of the joinder of Ms Rudolf
37. There is an obvious efficiency in hearing related applications at the same time. Nevertheless the Commissioner is correct in his/her submission that no formal application has been made by Ms Rudolf and the Commissioner has not had an opportunity to investigate her claims. To join Ms Rudolf’s claim against the Commissioners objections would probably amount to a denial of procedural fairness and accordingly the Tribunal declines to adopt this course of action.
The amendment of the Applicant’s claim to include the door claim:
38. The Commissioner has full knowledge of this matter and the dispute between the parties on the issue is well advanced. There is nothing to stop the Applicant lodging a new claim with the Tribunal for a ruling on the door issue. In these circumstances the Tribunal cannot see any good purpose served in requiring separate proceedings between the same parties for the door claim as opposed to merely amending the present claim. Accordingly the present claim is amended to include the door claim.
The legal issues raised in the joinder of the Body Corporate:
39. There are two issues for the Tribunal to consider:
(a) Whether sections 102(1)(d) and 115B provides sufficient power for the Tribunal to join the Body Corporate: and
(b) Whether any useful purpose would be served in joining the O/C in the sense of whether the Tribunal would have power to make any order affecting the O/C. More particularly the issue is whether there is any cause of action known to law, including under the Units Titles Act 2001, that could render the O/C liable to indemnify the Commissioner for any compensation the Commissioner may be ordered to pay the Applicant.
40. Section 102(1)(d) and section 115B provide:
102(1) In addition to any other power specified in this Act, the tribunal may do any of the following:
(a)…
(d) join a person to a proceeding if it considers appropriate;
115B(1) This section applies if—
(a) an application (the original application ) is made to the tribunal under—(i) this Act; or
(ii) the standard residential tenancy terms; or
(iii) the standard occupancy terms; and
Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act, s 104).
(b) the parties to the proceeding agree to the tribunal exercising extended jurisdiction under this section.(2) The tribunal has jurisdiction ( extended jurisdiction ) to hear and decide any matter that—
(a) arises out of, or is ancillary to, the dispute that gave rise to the original application; and
(b) the Magistrates Court has jurisdiction to hear and decide under the Magistrates Court Act 1930 , part 4.2 (Civil jurisdiction).(3) If the tribunal is exercising extended jurisdiction, the tribunal may exercise the jurisdiction and powers of the Magistrates Court under the Magistrates Court Act 1930 , part 4.2 (Civil jurisdiction).
41. Section 102(1)(d) gives the power to the Tribunal to join a party if the Tribunal thinks it “appropriate”. The word “appropriate” is one which is often used to camouflage a wide range of objective and subjective considerations whilst excusing the decision maker from the need to be explicit in how the decision was arrived at. Whatever be the meets and bounds of the power conferred in section 102(1)(d), the Tribunal considers that it is a least “appropriate” to join a party where:
(a) an existing party before the Tribunal wishes to maintain a lawful cause of action against the party sought to be joined:
(b) where that cause of action arises out of, or is ancillary to, the cause of action already before the Tribunal; and
(c) the Tribunal has power to include the joined party in any remedy awarded in the matter before the Tribunal.
42. The above approach requires the Tribunal to determine whether either of the Applicant or the Commissioner have a cause of action against the Owners Corporation for its alleged failure to repair the sewer plumbing over the years since 2002, and for the delay in remedying the effects of the spill on 10 December 2007. If either have such a cause of action known to law, and if the Magistrates Court would otherwise have had jurisdiction to hear and determine that cause of action, then section 115B confers jurisdiction on the Tribunal to hear and determine that cause of action.
43. The Owners Corporation for Unit Plan 1751 (O/C) is a creation of the Unit Titles Act 2001( s38 UTA) and has corporate status allowing it to sue and be sued in its own name (s39). As a unit owner the Respondent is a member of the O/C (s40).
44. The O/C holds the Crown lease over the common property and is responsible for its management for the benefit of all the unit holders (s13, 17(2), 33 and 51 UTA). Section 47 provides that the O/C holds the common property as an agent for the owners:
47(1) An owners corporation holds the common property as agent—
(a) for the owner, if all the units are owned by the same person; or
(b) in any other case—for the unit owners as tenants in common in shares proportional to their unit entitlement.(2) The owners corporation must provide all members of the corporation opportunity for the reasonable use and enjoyment of the common property.
45. The O/C responsibility for the “maintenance” of the plumbing is specifically in section 51(3)(d) and 51(5). The term “maintenance” is defined in the Dictionary in the UTA as follows:
“maintenance", of a building, a facility for a utility service or a utility conduit, means maintenance in good repair and working order, and includes—
(a) repair; and
(b) replacement; and
(c) renewal; and
(d) restoration.
46. Section 51(3) imposes on the O/C a mandatory duty to maintain, and therefore repair, the common property and utility services:
51(3) An owners corporation must maintain the following:
…
(b) for a development that is not a staged development—the common property;
(c) all other property that it holds;
(d) the defined parts of any building containing class A units (whether or not the defined parts are common property);
(e) all facilities associated with the provision of the utility services mentioned in section 35 (Easements given by this Act), including utility conduits;
…
(5) Subsection (3) (e) only authorises the owners corporation to carry out maintenance associated with the provision of utility services if the provision of services potentially benefits all units.
47. In the present case the sewer plumbing blockage exists on the common property and thus each of paras 51(3)(b)-(e) would separately apply. See Allen v The Proprietors –Strata Plan No 2110 [1970] 3 NSWR 339; The Proprietors – Strata Plan No 6522 v Furney [1976] 1 NSWLR 412; Simons v Body Corporate –Strata Plan No 5181 [1980] VR 103 for examples of the mandatory duty on O/C to carry out repairs to prevent water egress into a unit.
48. The O/C may appoint a strata manager to carry out its functions (s90).
49. The relationship between the O/C on the one hand and unit owners and their tenants on the other hand, is governed by the UTA and the articles (s126-128 UTA). The articles for a statutory contract between the O/C and the unit owners. As between the owner and their tenant, their relationship is governed primarily by the residential tenancy agreement which takes precedence over the terms of the article of O/C to the extent of any inconsistency (s127(4) UTA). Otherwise tenants are required to comply the articles of the O/C in the same way as owners:
127(1) There are taken to be agreements under seal between an owners corporation and each of its members, and between each member and each other member, under which the corporation and its members agree to be bound by the articles of the corporation.
(2) An occupier of a unit (who is not the owner of the unit) is bound by each article of the corporation as if the occupier were the owner of the unit, unless the articles provide otherwise.
(3) If the unit owner does not occupy the unit, the owner is liable separately and together with an occupier of the unit for any breach of the articles of the owners corporation by the occupier, unless the owner establishes that the owner took reasonable precautions and exercised appropriate care to prevent the breach.
(4) An occupier of a unit who occupies the unit under a residential tenancy agreement within the meaning of the Residential Tenancies Act 1997 is not bound by any article of the owners corporation to the extent that the article is inconsistent with the prescribed terms (or terms to the effect of the prescribed terms) to which the agreement is subject under that Act, section 8.
.
50. Where an owner is dissatisfied with the O/C failure to exercise any function under UTA they may apply to the Magistrates Court for a relevant order (s55 UTA):
55(1) If an owners corporation fails to exercise a function under this Act, a unit owner or anyone else with an interest in a unit or the common property may apply to the Magistrates Court for an order requiring the corporation or the executive committee to exercise the function.
(2) If the Magistrates Court is satisfied that the owners corporation has failed to exercise the function, the court may—
(a) order the corporation or executive committee to exercise the function; or
(b) make any other order it considers just.
51. The power of the Magistrates Court is not limited to ordering the O/C to carry out its functions i.e. repairs. The Court may also “make any order it considers just”. It is not clear from section 55 whether the Court’s powers can only be enliven as long as the O/C remains in default of the discharge of its duties to carry out repairs, or whether a unit owner’s rights under section 55 continue past the point where the O/C has effected the repairs. In the present case the O/C effected the repairs on 11 February 2008 at which time no proceedings had been commenced by the Commissioner under section 55. There are no authorities of the Supreme Court to guide the interpretation of this section.
52. But even if the power contained in section 55 is spent at the point the O/C carries out the repairs, there is nothing in section 55 or elsewhere in the UTA which provides that section 55 is the only remedy open to a unit owner in the face of a breach of contract by the O/C. There is nothing in the UTA that abrogates the common law cause of action based on the statutory contract over which the Magistrates Court would ordinarily have jurisdiction.
53. From the above brief review of the UTA the Tribunal concludes:
(a) The O/C for Karelia Park have a mandatory duty to maintain and repair the common property, including the sewer pipes embedded in the common property:
(b) This mandatory duty is owed to all unit owners, including the Respondent;
(c) The duty is contractual in nature;
(d) The Respondent has a right to bring proceedings in the Magistrates Court pursuant to section 55 and also at common law;
(e) The Magistrates Court has the power to order the carrying out of repairs but also has the power to order compensation for contractual breaches on the part of the O/C, whether under section 55 or at common law.
Conclusion:
54. The Tribunal is satisfied that the test posed at para 42 above is satisfied, namely that the Commissioner has a cause of action known to law against the O/C in respect of the O/C’s alleged failure to carry out repairs to the sewer pipes resulting in the spill of 10 December 2007, over which the Magistrates Court would ordinarily have jurisdiction. Section 115B then confers jurisdiction on the Tribunal to make relevant orders against the O/C as part of the resolution of the dispute between the Applicant and the Respondent, being orders consistent with the Commissioners cause of action against the O/C.
55. In these circumstances the Tribunal determines to join the O/C as a party and to adjourn the matter for further directions.
A. Anforth
13th May 2008
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