Smith v Owners Corporation Unit Plan 3115 (Unit Titles) - [2021] ACAT 28

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

SMITH v OWNERS CORPORATION – UNIT PLAN 3115 (Unit Titles) [2021] ACAT 28

XD 606/2020
Catchwords: UNIT TITLES – use of common property – security and parking arrangements – control, management and administration of common property – standing of occupier to sue at common law – negligence – duty of care – owners corporation tortious liability – causation – where owners corporation failed to ensure access to secure storage cage – where occupier’s bicycle stolen from common property, which would have otherwise been in the storage cage if not for the negligence of the owners corporation – depreciated damages awarded

Legislation cited: Civil Law (Wrongs) Act 2002 ss 40, 41, 42, 43, 45, 46, 47
Unit Titles Act2001
Unit Titles (Management) Act 2011 ss 7, 16, 19, 107

Cases cited:Kirk v The Owners UT 2992 [2017] ACAT 102
McElwain v The Owners SP75975 [2017] NSWCA 239

List of
Texts/Papers cited: Harold Luntz et al, Torts: Cases and Commentary (LexisNexis, 8^th ed, 2017)

Tribunal:  Senior Member L Beacroft
Date of Orders:  12 April 2021
Date of Reasons for Decision:         12 April 2021
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          XD 606/2020

BETWEEN:
HUGH DAVID SMITH
Applicant

AND:
OWNERS CORPORATION – UNIT PLAN 3115
Respondent

TRIBUNAL: Senior Member L Beacroft

DATE:12 April 2021

ORDER

The Tribunal orders that:

1.The respondent is to pay the applicant the total sum of $561.94, comprised of:
(a)$467.31 compensation.
(b)$19.13 interest from 30 April 2020 (i.e. from the date that the application was filed to the date of the order).
(c)Filing fee of $75.50.

………………………………..
Senior Member L Beacroft

REASONS FOR DECISION

Background

1.The applicant, Mr Hugh Smith, was an occupier of a unit and claims that he had a bike stolen from the common property area of the unit complex (Unit Plan 3115) that was under the control and management of the complex’s body corporate, the respondent. The applicant claims the sum of $685.75, being the cost of a bike purchased in May 2018,[1] or if deprecation is applied in accordance with the ATO guidelines then he claims the sum of $467.31,[2] plus reimbursement of his filing fee of $75.50, and interest.[3] He claims that he was owed a duty of care by the respondent, that this duty was breached, and that the respondent is liable to pay compensation to him for loss of his stolen bike. The respondent denies the claim. The Tribunal finds the application proved, and awards compensation as set out in the order above, for the reasons set out below.

Applicant’s claims
[1] Applicant’s witness statement dated 26 October 2020 Annexure B
[2] Applicant’s final submissions filed 15 January 2021 at [17]-[21]
[3] Applicant’s civil dispute application dated 30 April 2020

2.In summary, at the time the bike was stolen the applicant occupied one of the units and had an arrangement with the owners to stay there with the owners’ daughter.[4] A push bike owned by him was allegedly…

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: [2021] ACAT 28
Decision Date: 12 April 2021

CaseChat Overview and Summary

In Smith v Owners Corporation Unit Plan 3115, the applicant, Mr Smith, sought compensation for a stolen bicycle from common property managed by the respondents, an owners corporation. The common property in question included a storage cage intended for bicycles, but the keys were not provided by the corporation, rendering the cage unusable. The applicant argued that had the storage cage been functional, the bicycle would have been secured and the theft would have been prevented.

The key legal issues the court had to address were whether the owners corporation owed a duty of care to the applicant, and if so, whether the failure to provide a functional bicycle storage cage constituted a breach of that duty, leading to the theft of the applicant's bicycle. The court also needed to determine the quantum of damages to be awarded.

The court found that the owners corporation had a duty of care to ensure that the common property was secure and accessible. The failure to provide the keys for the storage cage was a breach of this duty, which directly led to the applicant’s bicycle being stolen. The court awarded damages for the depreciated value of the stolen bicycle, interest, and the filing fee. The total sum ordered to be paid by the owners corporation was $561.94.

Orders

Orders of the court

The Tribunal orders that:

1. The respondent is to pay the applicant the total sum of $561.94, comprised of:

(a) $467.31 compensation.

(b) $19.13 interest from 30 April 2020 (i.e. from the date that the application was filed to the date of the order).

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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