UNIT TITLES -** whether the air-conditioning system is common property - whether the owners corporation is responsible for repairs to the air-conditioning system
Source
Original judgment source is linked above.
Catchwords
UNIT TITLES -** whether the air-conditioning system is common property - whether the owners corporation is responsible for repairs to the air-conditioning system
Judgment (9 paragraphs)
[1]
The applicant prepared detailed written submissions. The applicant seeks the following orders:
(a) the body corporate carry out repairs to the air-conditioning/heating in the unit immediately;
(b) the body corporate reimburse the applicant for all past work carried out on leaking pipes and repairs which have not already been reimbursed. The applicant claims reimbursement of the following invoices:
the Pat's Plumbing Invoice dated 25 July 2014 in the amount of $132;
the Dayn Jackson Invoice dated 3 October 2007 in the amount of $185;
(c) reimbursement of $55 per week from 27 April 2015, being the amount by which rent was reduced in order to retain a tenant during the period that the heating was not working; and
(d) the ACAT filing fee of $135.
The Owners Corporation have, since May 2011, refused to arrange and/or pay for the necessary repairs. The reason given by the Owners Corporation is that they believe that during the repairs done by Pat's Plumbing either in 2007 or in 2010 damage has been caused to the copper pipes by the tradesman and the Owners Corporation denies responsibility for these repairs. The Owners Corporation deny all liability or obligation to undertake the repairs.
The statutory obligation imposed upon the Owners Corporation in relation to maintenance of the common property is a mandatory one. Section 24(b) of the UT (M) Act specifically requires the owners Corporation to maintain utility services provided for the potential benefit of all units. This includes facilities associated with the provision of the utility services including utility conduits. A utility conduit is defined to mean a conduit of any kind for the provision of utility service, and includes, for examples pipes, wires, cables and ducts for a utility service. A utility service is defined to include gas, electricity and air services (including air conditioning and heating).
The respondents submit that since the repair relates only to the heating or cooling for the applicants unit, the Owners Corporation has no responsibility to attend to such repairs. This misunderstands the meaning and intention of the legislation. The air conditioning and heating in Units Plan 932 is a common system providing heating and cooling to each individual unit by electricity wire, water pipes and ducts situated on common property. There is only one control unit, individual occupants of individual units are not able to switch off the airflow and the body corporate bears all of the costs for electricity to operate the system. The air-conditioning and heating system in Units Plan 932 is manifestly the provision of a utility service for the potential benefit of all units.
The UT (M) Act contains no provision that would either excuse or relieve and Owners Corporation from the mandatory obligation to maintain the air-conditioning and heating system for the benefit of all units. I have nevertheless considered the evidence and arguments presented by the respondent.
The respondents base their refusal to repair or maintain the air-conditioning unit on an allegation that at some time between 2007 and 2015, work done by tradesmen engaged on behalf of the applicant caused damage to the system. The Tribunal received a written witness statement and oral evidence from Peter Wetteland, Maintenance Manager at the Pavilion on Northbourne Hotel. He explained that a copper water pipe connected to that part of the system which operates within the applicant's unit was broken. He was not able to accurately identify the cause of the split in the pipe but surmised that it could have occurred from too much pressure being applied to the pipe during repair work. He conceded that that copper pipe and copper piping generally throughout the air-conditioning and heating system is corroded. He also conceded that work, apart from that undertaken by tradesmen engaged by the applicant, had been conducted in the vicinity of the broken pipe.
The Tribunal also received a written witness statement from Mr Pat Blanchard from Pat's Plumbing. This witness statement confirmed the following timeline of events:
(a) Pat's Plumbing had attended in May 2010, and identified that a section of the copper pipe was burst and that this was causing a leak into the bathroom ceiling of the unit. The burst section of copper pipe had been welded;
(b) in June 2010 Pat's Plumbing had attended and replaced the actuator, so that the thermostat would work; and
(c) in July 2014 Pat's Plumbing had attended to investigate a leak in the ceiling, no repair work had been done.
I am not satisfied on the balance of probabilities that the respondent has established that any of the work undertaken by tradesmen engaged by the applicant or the applicant's real estate agent has damaged the system of air conditioning and heating. In reaching this conclusion I have taken into account that the repairs that were undertaken in 2007 and 2010; that it appears that the repairs were successful and that the heating system operated until 2014, when the tenant complained; the air-conditioning and heating system has been repaired by the maintenance team employed by the Owners Corporation and that the evidence of the maintenance manager was that 10% of the actuators within the system had been replaced and that copper piping was generally degraded; that the minutes of the annual general meeting of the Owners Corporation held on 20 October 2010 indicated that the air-conditioning works throughout the complex needed to be upgraded and that a number of repairs had been undertaken within the complex.
[2]
The Owners Corporation has failed to meet its obligation to maintain the common property and specifically it has failed to meet its obligation to maintain the service utility of air conditioning and heating.
As a result of this failure by the Owners Corporation the applicant has suffered loss. The applicant has expended his own money in undertaking some repairs and obtaining reports to identify the problems or necessary repairs. The applicant has lost income.
The Owners Corporation of Units Plan 932 shall carry out all repairs necessary to ensure full operation of the air-conditioning and heating system so that the applicants unit is properly and appropriately air-conditioned and heated; such repairs to be completed on or before 10 June 2016. The Owners Corporation of Units Plan 932 shall bear all costs associated with the carrying out of these repairs.
[3]
The Owners Corporation of Units Plan 932 shall pay an amount of $3367 to the applicant on or before 10 June 2016. The amount of is made up as follows:
[4]
(a) the Pat's Plumbing Invoice dated 25 July 2014 in the amount of $132;
[5]
(b)the Dayn Jackson Invoice dated 3 October 2007 in the amount of $185;
[6]
(c) $3135 - $55 per week from 5 June 2015 to 6 July 2016 being the amount by which rent was reduced in order to retain a tenant during the period that the healing was not working; and