1. Before setting out the substantive reasons for my decision, it is necessary to address issues which arose after the hearing. At the end of the hearing on 12 June 2009 the Applicant's counsel handed up a folder of written submissions to supplement his oral submissions, with copies of cases and legislation to which he referred. The Respondent was handed a copy. I reserved my decision and retained the tribunal file which contained a number of documents referred to in the evidence of the parties.
2. It turned out that the parties subsequently sent a number of items of correspondence to the registry and that (very regrettably) most of these were not referred to me until 5 October 2009. The file now shows that events were as follows, assuming that the 'received time' imprints on the facsimile documents are correct:
   • On 15 June 2009, the Applicant sent a facsimile copy of an affidavit from the Applicant's solicitor, with a cover letter saying it had been "referred to in paragraph 46 of the Submissions". This document was not referred to me at the time and was finally referred to me on 5 October 2009.
   • On 17 June 2009, the Respondent's counsel sent a facsimile note to the registry, asking that no decision be made until he had an opportunity to respond to the Applicant's written submissions. This document was not referred to me at the time and was finally referred to me on 5 October 2009.
   • On 18 June 2009, the Applicant sent by facsimile to the registry a further copy of its written submissions, omitting the submissions about costs, with a cover note saying this was done because the Respondent's counsel had expressed his concern about references in the submissions to an offer of compromise. This document was not referred to me at the time and was finally referred to me on 5 October 2009.
   • On 19 June 2009, the Respondent sent to the registry a facsimile document replying to the Applicant's written submissions and submitting that the Applicant had revealed without prejudice offers and counter-offers and that the normal procedure in such circumstances is for the hearing to be aborted. This document was not referred to me at the time and was finally referred to me on 5 October 2009.
   • On 24 June 2009, the respondent again sent a facsimile to the registry, simply seeking a directions hearing. This document was referred to me and I sent back a note asking registry to find out why the directions hearing was sought. There is also a note on file that a registry officer contacted the Respondent's solicitor and asked for a reason and that the solicitor agreed to write something.
   • On 26 June 2009, the Respondent's solicitor sent by facsimile a letter explaining why a directions hearing was sought - that prohibited material had been supplied to me. That document was not referred to me at the time and was finally referred to me on 5 October 2009.
   • On 29 June 2009, the Applicant's solicitors sent to the registry a copy of their letter to the Respondent's solicitors saying a directions hearing was unnecessary. That document was not referred to me at the time and was finally referred to me on 5 October 2009.

• On 15 September 2009, the Respondent sent to the registry a further copy of its request for a directions hearing. This document was referred to me and I sent back a note to registry noting that I did not have any of the documents referred to in the Respondent's request and directing that registry find all the documents and refer them to me and fix a directions hearing, in late October, as I was taking some leave.
  • On 5 October 2009, registry copied to me a notice of the directions hearing and all the above documents, for attachment to the file, which had remained with me.

1. By that time, I had reviewed the evidence and the applicable law and prepared written reasons for decision. I had not read the Applicant's submissions about costs, even though they were in the same folder and even part of the same document which contained the Applicant's written submissions. The submissions about costs were clearly headed "Costs" and I considered them irrelevant to the task before me - deciding whether the Respondent was liable for the losses suffered by the Applicant and if so what was the proper amount recoverable. At that time, I was not interested in the question of costs. I was concerned about the evidence and the applicable law, including the limits of the tribunal's jurisdiction to deal with the issues raised by the dispute.
2. The decision was mostly prepared before15 September 2009, which was the date on which registry first referred to me the Respondent's written reasons for requesting a directions hearing. I had completed it by 5 October 2009, the time when I finally received the correspondence which the parties had sent over previous months and became aware of the Respondent's concerns. Normally, this information would be completely unnecessary but in this case it seems appropriate to indicate how it is that the decision was made without reference to the whole of the Applicant's submissions.
3. At the directions hearing on 21 October 2009 and in the correspondence leading up to it, the respondent raised two issues: that the Applicant had apparently revealed without prejudice offers and that the Applicant's submissions contained material to which it had had no opportunity to reply. As to the second issue, the Respondent made submissions about the Applicant's written submissions and the Applicant replied to those - both in writing (in a document which appears not to have reached the registry at all) and at the directions hearing. The comments were about how the evidence should be analysed and referred to paragraphs 23, 27 and 30 of the Applicant's written submissions, which I will not repeat here. It is sufficient to say that I have now read them and reviewed my decision, taking into account where necessary the issues raised in the Respondent's comments and in the Applicant's responses.
4. The other issue raised by the Respondent concerned revelations apparently made by the Applicant. I must now decide whether I am embarrassed or affected by knowledge of any 'without prejudice' offers and whether a fair-minded observer aware of the circumstances would consider that my decision was affected by the Applicant's submissions.
5. The circumstances are these: I have had in my possession since 12 June 2009 the Applicant's written submissions; those submissions refer to material irrelevant to my current task; if I read the submissions, it may be that I would find it difficult or embarrassing to decide the case but I have not read them.
6. The parties made submissions about the relevant principles to be applied when offers have been disclosed. The Respondent submitted that the only exception to the requirement for a new hearing in circumstances such as these was "inadvertent premature disclosure" according to the principle in Williams v Volta [1982] VicRp 74; [1982] VR 739. On reading that decision and Millensted v Grosvenor House (Park Lane) Ltd [1937] 1 KB 717 to which it refers, the principle appears to be that I have a discretion. The commentary in Williams Civil Procedure (on the Supreme Court rule against revealing offers before the matter is decided) says:

"While breach of the rule would justify a judge to order a new trial in the interests of the administration of justice, the judge has a discretion to allow a case to proceed where the rule is by inadvertence or otherwise broken".

1. The Applicant referred me to this commentary, on Order 26.05 of Supreme court Rules chapter I, noting that while the Rule prohibits revelation of offers to the court until all questions of liability and relief have been determined, it does not require that there be a new hearing should a revelation occur and does not in fact provide for any consequences for revelation. The Applicant also referred me to Ali v Hartley Poynton Ltd [2001] VSC 50, in which the court declined to order a new trial following an inadvertent disclosure made during oral evidence.
2. I am persuaded there is no requirement for a new hearing, but that the tribunal has a discretion whether or not to order a new hearing. The main issues to be considered are whether the tribunal has been embarrassed by any disclosure and whether the appearance of justice has been compromised - that is, whether a fair-minded observer might reasonably apprehend that the tribunal's decision might be affected by disclosure of offers (See Ali v Poynton, above). Other relevant issues are the stage to which the proceeding has progressed, the costs which have been incurred and the interests of justice.
3. As it happens, while the parties are under the impression that offers have been disclosed, this has not actually occurred. I am therefore not embarrassed by any such disclosures, unless it is embarrassing to reveal that I did not read every word of the Applicant's submissions. I am now aware that there have been offers of some sort. However, I would be surprised if there had not been some sort of offers, as VCAT encourages the parties to attempt to settle matters and the file shows there has been a compulsory conference.
4. As to the appearance of justice - would a fair minded observer consider that I have been affected by disclosures about the offers? Once it is clear that I do not actually know what the offers were, then I do not see how any observer would consider I had been affected. The error is unfortunate and could easily have led to the need for a new hearing, but in this case the circumstances do not require that a new hearing be conducted.

1. It is well established that VCAT is a creature of statute and has only the jurisdiction given to it by an Act of Parliament - see for example, R v Perkins [2002] VSCA 132 at [16] and Herald and Weekly Times Pty Ltd v VCAT [2006] VSCA 7 at [27].
2. Under the Owners Corporations Act 2006 ("the Act"), VCAT has power to hear and determine an owners corporation dispute as defined in section 162 of the Act:

VCAT may hear and determine a dispute or other matter arising under this Act or the regulations or the rules of an owners corporation that affects an

_owners corporation (an owners corporation dispute) including a dispute or matter relating to - _

(b) an alleged breach by a lot owner or an occupier of a lot of an obligation imposed on that person by this Act or the regulations or the rules of the owners corporation; or

(c) the exercise of a function by a manager in respect of the owners corporation.

1. There are two elements to the above definition of an owners corporation dispute - it is a 'dispute or other matter arising under the Act or the regulations or rules of an owners corporation' (my emphasis) and it 'affects an owners corporation.'
2. Section 162, besides defining an owners corporation dispute, confers power on VCAT to hear and determine an owners corporation dispute. VCAT has no other relevant jurisdiction to determine disputes involving owners corporations. The other sections of the Act conferring power on VCAT were not relevant to the claim before me. Thus, for VCAT to be empowered to determine the dispute, it must be an owners corporation dispute as defined.
3. The Applicant relied upon nuisance, negligence and breach of statutory duty as causes of action. In my view, VCAT lacks the power to determine an action based on claims of private nuisance or common law negligence brought by a lot owner against an owners corporation. Such an action is not an owners corporation dispute. It 'affects an owners corporation' as required by the first limb of the definition in section 162, but it does not 'arise under the Act, the regulations or the rules of the owners corporation', as required by the second limb.
4. The phrase 'arising under' is not defined in the Act. It is not one which has been often judicially considered, as far as I could find. In Banque Nationale de Paris v Cardil Pty Ltd [1995] 1VR 229, Smith J said (at 232) "it appears to be common ground that a phrase such as 'arising under' tends to be narrower than phrases such as 'arising out of' or 'in connection with'". His Honour appeared to accept this view but went on to say that it was the provision itself which was to be analysed.
5. It is the narrower expression which is used in section 162. The provision refers to the Act, regulations and rules, to found the tribunal's jurisdiction. An action in nuisance or negligence arises under the common law, in my view, not under the Act regulations or rules.
6. I have also considered whether any other legislation might confer on the tribunal jurisdiction to hear a claim in nuisance or negligence. In section 107 of the Fair Trading Act 1999, Parliament specifically gave VCAT power to hear and determine a 'consumer trader dispute' based in nuisance or negligence. However, that jurisdiction is of no use in the present case, as a dispute between a lot owner and an owners corporation is not a consumer and trader dispute. It is not (as the definition in section 107 requires) based on the purchase or supply of goods or services (in trade or commerce) by the corporation to the lot owner Rather, the lot owner is a member of the corporation and the services provided by the corporation are governed not by a contract or agreement with the lot owner, but by the provisions of the Owners Corporations Act 2006. The services provided by the owners corporation are not provided in trade and commerce, as the definition in section 3 of the Fair Trading Act 1999 requires.
7. There is a specific provision in section 12 of the Owners Corporations Act 2006 for provision of services by an owners corporation in what might be a consumer trader relationship, but that is separate from the general functions of the owners corporation and there was no suggestion that services under section 12 had been arranged between the parties.
8. I heard the proceeding on two separate days, spread over a considerable period of time. On the first day, I raised the issue of VCAT's jurisdiction to hear a claim based in nuisance or negligence. On the last day, I asked the parties about the issue. The party's representatives did not address the issue, except that the Respondent said it 'did not take the point' and did however make submissions specifically about whether the Respondent had breached a statutory duty. Whatever the position taken by the parties, the tribunal cannot determine a matter over which it has no jurisdiction.
9. The Applicant claimed in private nuisance, common law negligence and breach of statutory duty, both cumulatively and in the alternative. In my view, the claim for damages for breach of statutory duty arises under the Act and so is within VCAT's jurisdiction because it is an owners corporation dispute as defined in section 162 of the Act. Halsbury's Laws of Australia (at para 415-1300) says:

"The cause of action for breach of statutory has its origins in statute, although it is the common law which makes that cause of action effective by providing the remedy, for example, of damages".

1. Accordingly, I have considered the claim only as one for breach of statutory duty. The relevant duties under the Act appear in section 4, 5 and section 146, which relevantly provide:

"4. An owners corporation has the following functions-

(a) to manage and administer the common property;

1. the chattels, fittings, fixtures and services related to the common property or its enjoyment;..."

"46. An owners corporation must repair and maintain-

(b) the chattels, fixtures, fittings and services related to the

1. In Stockwell v Victoria [2001] VSC 497 His Honour Justice Gillard conveniently stated what is required to establish a breach of statutory duty. At para 252, he said:

"In order to establish a cause of action against a defendant for breach of a statutory duty, the plaintiff has to establish -

(i) That a statutory instrument imposed a duty of care on the defendant;

(ii) that the statutory duty of care was owed to the plaintiff;

(iii) that the defendant breached the statutory duty;

(iv) that a breach of the statutory duty gave a right to the plaintiff to recover damages in a civil proceeding;

(v) that the breach of the statutory duty was a cause of the damage suffered by the plaintiff; ....."

1. Taking those requirements in a slightly different order, there are therefore a number of questions to be applied to the present case.

Does the Act impose on the Respondent a statutory duty of care to the Applicant?

1. The Respondent owners corporation is responsible for the common property and the Applicant is a lot owner who (by virtue of section 28 of the Subdivision Act 1988) is a member of that corporation and (by virtue of section 30(1) of that Act) is a tenant in common of the common property along with the other lot owners. Whoever else might be a member of the class of people to whom the duty is owed, a lot owner who resides in his apartment and uses his private car park space via the common property is certainly a member of that class of persons.

Was the Act intended to create a cause of action for breach of the duty of the owners corporation?

1. Whether a statute confers a cause of action for breach of a statutory duty is determined by construction of the statute - as Justice Gillard pointed out in Stockwell at para 253. Halsbury's Laws of Australia (at [415-1345] lists some of the (non-conclusive) factors considered by the courts in this process, including:
   • the nature, scope and terms of the statute;
   • the nature of the evil sought to be remedied and of the conduct prescribed;
   • the policy of the statute;
   • the convenience or inconvenience which would result from the existence or non-existence of a right of action;
   • the pre-existing law;
   • the surrounding circumstances;
   • whether the statutory duty is imposed for the benefit of a particular person or class of persons or for the benefit of the public generally;
   • whether the statute provides a remedy for breach of the statutory duty, for example, a statutory criminal penalty, and
   • whether the statute sufficiently identifies specific precautions or measures or whether it merely specifies ends, not means.
2. The Act, by giving the tribunal jurisdiction and a list of powers in section 167 indicates that it was intended to provide a vehicle for owners corporation disputes (as defined in section 162) to be finally determined between the parties - here the lot owner and the owners corporation.
3. Section 167(1) (c) (ii) specifically provides that the tribunal has power to make orders for payment of money by way of damages. The purposes of the Act set out in section 1 include "to provide appropriate mechanisms for the resolution of disputes relating to owners corporations". The Act prescribes the functions of an owners corporation (in section 4 and specifically in section 46) and the standard to be observed by an owners corporation (in section 5) which can be said to amount to a duty under the statute.
4. The duties imposed on the owners corporation under the Act are for the benefit of the members of the owners corporation. The statute does not specify particular precautions or measures, but the other factors indicate that a cause of action for breach of duty was intended when the statute was framed. Certainly, it would be inconvenient to impose duties and standards on the owners corporation, set up a forum and mechanism for the determination of disputes and then require the parties to use a different forum for determining disputes about alleged loss or damage arising from the performance or non-performance of those duties. The issue for me to decide then is whether the damage suffered by the Applicant flowed from a breach of duty by the Respondent.
5. The Applicant's complaint was that his car was damaged on a particular occasion by rats. In effect, he claims that the Respondent was under a duty to prevent this occurrence.

1. In order to decide whether the Respondent failed in its duty to the Applicant, it is necessary to consider the circumstances, what the Respondent did to exclude vermin from the common property, what is the relevant standard of care and whether the Respondent's actions met that standard.

The circumstances of the damage and what the Respondent did

1. While there was some initial confusion about dates at the hearing, it was ultimately undisputed that the Applicant found his car damaged on the morning of 28 August 2007 and spoke to the building manager, Mr Rick Te Boekhurst about it on the evening of 29 August 2007.
2. There was no dispute that the Applicant's car park lot is next to a number of privately owned storage cages (owned by members of the owners corporation to which he belongs). It was not disputed either that there is a rule made by the owners corporation for their building against storing food in the cages, but that no inspections of cages are made to see whether this rule is kept.
3. Further, it was undisputed that the building manager had become aware of possible rodent damage in the storage cage next to the Applicant's car parking space some days before the Applicant found the damage. The exact time of the earlier discovery is addressed later.
4. Also, evidence was given for the Applicant by Mr. Neumann, a resident of the Yves building, that on 2 September 2007 the vehicle belonging to his domestic partner, Mr. Hasagowa, was found to have been damaged by rats. That car was parked near to the storage cages where rodent damage had been observed by the building manager. While that damage was discovered on 2 September, Mr. Neumann himself did not drive the car and he said it was not driven every day. It was therefore not possible for me to find exactly when the damage to Mr Hasagowa's car had occurred, but it was fairly obvious that it occurred within a few days either side of the day when the Applicant's vehicle was damaged.
5. Mr Rick Te Boekhurst, building manager at the Yves apartment building is employed by the Respondent owners corporation. He gave the following relevant evidence:
   • That the Yves building was completed in 2006 and he has been employed there building manager since 1 May 2006;
   • That he has five staff working for him;
   • That he and his staff conduct regular inspections of the property, checking for such things as damage, break-ins and vermin;
   • That rubbish bins for the property are generally kept in a rubbish room, left out in a back lane on collection day, closed while awaiting collection, thoroughly cleaned once a month;
   • That he had never seen any evidence of vermin activity near the rubbish bins;
   • That the car park where the damage occurred is lit minimally at all times and sensors turn on more lights when a person approaches;
   • That before August 2007 there was no active pest control ( that is no baits or traps) in use in the building and that he had taken a similar approach in a previous building he managed - namely no active pest control until pests were observed;
   • That in July 2007 a pest control company inspected and advised there was no need for pest control as there was no evidence of pests;
   • That on 13 August 2007, after he had conducted a visual inspection, he reported in conversation to Antoinette Farrugia (owners corporation manager for the complex) that there was no evidence of vermin in the car park and that his email to Ms Farrugia of 27 August 2007, a copy of which was attached to his affidavit, referred to that conversation. The email referred to the quote from Adams pet control and included the words: "I know only a couple of weeks ago I said that it wasn't required. I have very unreliable rats";
   • That on 24 August (though he agreed under cross examination it might have been as early as 22 or 23 August) 2007 a resident had reported to him that a cardboard box in her private storage cage had been damaged by rats;
   • That on the same day or perhaps the next day he called Adams pest control company to inspect and advise on pest control and they attended almost immediately;
   • That on 24 August 2007, Adams pest control did inspect and advised that as there was some damage but no other evidence of rat droppings or tracks in the spoon drain or pipe work, no pest control was required ;
   • That despite that advice he thought it prudent at this point to obtain a quote and put some pest control in place and that he asked Adams to provide a quote, which they did on 27 August 2008 (the Monday after they had inspected). A copy of the quote, including the date and printed fax delivery time, was attached to his affidavit;
   • That he sent the quote to the chairman of the owners corporation and it was approved on 30 August 2007;
   • That on 29 August 2007 the Applicant informed him of the damage to the Applicant's car and asked whether there was a rat problem in the car park, to which he replied that there was and that it was being addressed.
6. I had some doubt about Mr Te Boekhurst's evidence at some points, as parts of it were inconsistent with his affidavit, which had tended to over-emphasise the actions he had taken on behalf of the Respondent. However, he was thoroughly cross-examined and remained consistent in the oral evidence he gave before me, correcting the slightly different version in his affidavit. I accepted the evidence as I have set it out above.
7. More needs to be said of two of the above points. As to the date when the resident reported rat damage to a box, there was a document which was inconsistent with this evidence. It was produced by the Applicant following discovery. This document, dated 17 September 2007, was a report from David Brown, a loss adjuster for the Respondent's insurer. It recorded in part that Mr Te Boekhurst had told the loss adjuster that Mr Te Boekhurst had found evidence of vermin two weeks earlier than the report of damage to the Applicant's car. Mr Te Boekhurst said this was incorrect. He referred to his email of 27 August 2007 to Ms Farrugia, which mentioned their conversation of 13 August 2007, to the effect that no vermin were to be observed. While there were some inconsistencies and slight inaccuracies in Mr Te Boekhurst's evidence, I had no reason to prefer the second-hand report of the loss adjuster who was not present to be questioned about it. I accepted therefore that Mr Te Boekhurst report to the owners corporation about 13 August 2007 that there was no evidence of rats at that time and that the damage to the box in the storage cage occurred later, which was consistent with the other evidence.
8. The Applicant submitted that there was evidence Mr Te Boekhurst knew of the presence of rats in the basement two weeks before 27 August. This submission was not consistent with the evidence, which was as I have set out above.
9. Mr Te Boekhurst agreed that the report of rodent activity from the resident owner of the storage cage next to the Applicant's car was probably on 22 or 23 August 2007, as he had himself sent an email (more than a year later, on 18 December 2008) to the chairman of the owners corporation saying "the mice/rat problem was initially noted approximately 22/23 August 2007 and report to Adams Pest Control who attended on 24 August and gave a quote on 27 August".
10. Mr Te Boekhurst said that 22/23 August was an approximate date as he wrote that email more than a year after the event, but that he did recall Adams had provided the quote on the same or next day after they attended to inspect and that as far as he could remember they had attended on the day he phoned them, which was the same day as the resident had reported the damaged box. Given the time which had elapsed, the slight inaccuracies evident in this account did not undermine its veracity in my view.
11. The Applicant's evidence was that when he spoke to Mr Te Boekhurst on 29 August 2007 to report the damage to his car he was not told that Adams pest control had been engaged. However, given that there was before me a copy of a quote from Adams dated 27 August 2007, I was satisfied that the pest control company had been contacted and had inspected and provided a quote by that stage.
12. I find therefore that the building, commissioned in 2006, was still relatively new and kept clean in terms of garbage disposal and control, that for prevention, the Respondent inspected daily, including the basement car parks which were not particularly well -lit although the lights did operate on a censor so that they came on when someone approached. I find also that on 13 August 2007 (two weeks before the damage to the Applicant's car) the manager had reported that there was no evidence of rats and that on 22 or 23 August 2007 a box in the storage cage next to the Applicant's car was found to be chewed. I find that within two days at the most of that occurrence, the manager had arranged for a pest control company to visit and provide a quote which arrived on 27 August 2007. I find that the damage to the Applicant's car occurred at the latest on the night of 27 August 2007, since he discovered it on the morning of 28 August.

1. According to Halsbury's laws of Australia, at [415-1375] "whether a statutory duty has been breached may depend on the nature of the duty and standard of care required by that duty and is determined by the construction of the statute imposing the duty". The authority given for this proposition was Ingles v NSW Fresh Food & Ice Co Ltd [1943] NSWStRp 55; (1943) 44 SR (NSW) 87 at 91.
2. Under the Act, the duty to repair and maintain the common property, fittings and fixtures is to be carried out with "due care and diligence". The Act does not define "due care and diligence" and the term is not one in for which definitions abound in the common law. It must mean at least the level of care and diligence due to the task - in this case the maintenance and repair of the common property and the chattels and services related to the common property and its enjoyment.
3. Halsbury indicates that if the statute provides a measure of the duty by prescribing a particular action then a failure to take that action is likely to be considered a breach of duty. The cases referred to on this point are based mostly on requirements for specific safety precautions intended to protect workers or other specified classes of people from harm. There was no such prescription in the present case - the duty is simply to repair and maintain common property, fixtures and services with due care and diligence.
4. The parties in their submissions assumed that the relevant standard of care is that reasonable care be taken. I agree that the cases decided about what amounts to reasonable care can provide guidance as to what is 'due care and diligence' under the Act. Therefore, applying the logic of the common law about reasonable care and the principles in the Wrongs Act 1958 at section 48(1), the issues to be considered are whether the risk was reasonably foreseeable and what a reasonable person would have done by way of response to the risk - see for example Council of Wyong v Shirt [1980] HCA 12; (1980) 146 CLR 40at 47-8. However, the risk to be avoided, according to the statutory duty to 'repair and maintain' the common property and services appears to be risk to the common property and services, rather than to a lot owner's property.
5. It seems reasonably foreseeable that vermin might infest a car park in a city apartment building, particularly one also used for storage. It is in my view less foreseeable that they would effect serious damage to a car in such a short time. There was nothing in the evidence before me to suggest that the risk to cars is a well-known phenomenon, except that Professor Staples agreed that rats are well known to chew plastic and rubber. The owners corporation's own rules prohibiting storing food there appear to foresee at least the risk of infestation should food be stored there. It is fair to say that the owners corporation must have been aware of some risk because it passed that rule. The next question to be answered then is whether the Respondent's actions are what a reasonable person would have done in response to the risk of vermin infestation.

Whether the Respondent's actions met the relevant standard of care

1. The Applicant submitted that the Respondent failed to take an easily available preventative action, namely either having an active pest control program (such as baits or traps) in place at all times or taking action to eradicate the rats once their presence was known. It is therefore necessary to consider the circumstances of the building and whether the actions taken by the Respondent were sufficient to fulfil its duty.
2. Mr Geoff Brown, manager of a nearby residential building, gave evidence for the Applicant. He provided a written report (dated 17 March 2009), expressing views about whether the owners corporation had complied with its duty of care and with the Act. The Respondent properly objected that this could not be treated as an expert report, so that I could not give any weight to Mr Brown's views about these issues. I agree. However, I accepted that Mr. Brown could give evidence about his experience of vermin in the area and about what he did as a person working and responsible for such issues in the area.
3. Mr Brown said and I accepted that he had managed the body corporate (as it then was) at 58-60 Queens Road, directly behind the place where the Yves building now stands. He is now the owners corporation manager for 562 St Kilda Road, which is still under construction and in the past, he has been on the body corporate committee for 434 St Kilda Road.
4. Mr Brown gave undisputed evidence that there is a café next to the Yves building, a café in the building at the rear and garbage dumpsters in Queens Lane at the rear of the Yves building. He also said ( and it was not disputed) that the Yves building is close to Albert Park Lake and that outside the building next door to the Yves building there is a disused water feature with some residual water in it. He pointed out that all these factors go to indicate that there is food and water for rats in the surrounding area. He said that as a building manager in the area he would take active precautions to keep vermin under control. Mr Brown had also observed, he said, a number of places where vermin could enter the Yves building.
5. Mr Brown also gave evidence that at the building in Queens Road where he had been manager, he had decided that a pest control program was required, even when there was no evidence of vermin. When cross-examined, he agreed that one of these was on older style building which had avocado trees In the garden and that the material falling from those trees was attractive to rats.
6. For the Respondent, an expert report was provided by Professor Linton Staples. There was no dispute about his qualifications. He is an adjunct professor of animal science at the University of Queensland, has thirty years experience in animal research and is managing director of his company, which works in bio-technology, specifically rodent management.
7. Professor Staples and his researchers did not inspect the property until 12 March 2009, more than two years after the damage occurred to the Applicant's vehicle. He reported that there were few access points for rodents to enter the car park, but it is almost impossible to seal a building completely against entry. He also gave oral evidence that the area surrounding the building was very clean and that there were no structural features of the building which would encourage rodent infestation.
8. Professor Staples expressed the opinion that it is not good practice to apply poisons or other methods of pest control if there is no evidence of pests. In other words that there was no necessity for a pre-emptive program of pest control. He said that this was his opinion and that he and his researchers had also contacted three pest control companies to ask about their practice. He said that he was surprised to find (given the pest control companies must have an interest in providing pest control programs) that they agreed with him and his team, that they did not recommend pest control until evidence of pests was found. He was cross examined about this and made it very clear that it was his view in any case and that his survey of pest control companies was additional, not to assist him in forming a view, but to investigate industry practice.
9. The Applicant argued that the tribunal should not rely on Professor Staples' opinion as he is not an expert in the economics of building management or in pest control in commercial building. I was not persuaded by this. There was no dispute about his qualifications and experience in pest control, so his view about the best practice in controlling pests is to be given weight. I do accept that he was not qualified to give evidence about the economics of the matter, but that was not the issue.
10. Professor Staples based his view about good practice on the proviso that there should be monitoring of a building to check for evidence of pests. When asked further about how long it would take to inspect the Yves building, he considered it would take up to two hours to inspect thoroughly and added that it was the 'cumulative amount of inspection' which was important as evidence left by rodents would stay in place for considerable periods of time and would be in the form of faeces and track marks in the dust of spoon drains and on pipe work. Therefore he said it would be easy for inspections to identify whether there was an infestation.
11. Professor Staples was cross-examined about the evidence given by Mr Brown, that there were considerable sources of food and water in the area but maintained that there appeared to be nothing in the immediate vicinity of the building to attract rodents to it. He also agreed that it would be unusual in a city to find an area where rodents were unable to survive and that the Albert Park Lake at least would provide sources of food and water. He considered that excavation of a nearby building which had ceased some months before the damage to the Applicant's vehicle would not have caused rodents to migrate at that time.
12. The Applicant submitted that Professor Staples' opinion depended on there being no resident population of rats in the vicinity and argued that the evidence indicated there would have been such a population, based on Mr Brown's evidence. That was not how I understood Professor Staples evidence. He was prepared to agree that there would have been rats in the vicinity, but he maintained that the area around the Yves building was generally clean, that there were good practices in place (as far as he could know) regarding garbage and that there was regular monitoring, which was sufficient until there was evidence of rats.
13. It was Professor Staples' view that once rodent activity was detected it was prudent to introduce a pest control program.
14. Professor Staples had inspected photographs of the damage to the Applicant's car. He was also told about the damage observed on 22 or 23 August to a box in a storage cage and about similar damage to another car in the basement car park around the same time. He said that the damage to the Applicant's car, the box and the other car could easily have been done in one or two hours by a single adult rat, perhaps even a transient rat. He said that rats are notorious for chewing plastic and rubber.

1. Professor Staples, an expert on pest control, said it was not imprudent to wait for evidence of pests before introducing a pest control program, provided that there was sufficient monitoring. I have found on the basis of Mr Te Boekhurst's evidence that there were regular inspections by the staff and that on 13 August 2007 he reported that no pest controls were required. Given his expert opinion and taking in to account that the building was relatively new, that there was regular monitoring, that there is no evidence that the garbage was allowed to overflow attracting rodents, that the bins were sprayed and that most entrances were sealed as far as possible, I consider it was reasonable for the Respondent to wait for evidence of pests before instituting pest control. In forming this view, I have also taken in to account the general practice which Professor Staples suggested appears to be the case in the companies he surveyed, as well as his expert opinion.
2. In an action for common law negligence, a plaintiff must show that a reasonable person would take the precautions which he complains were not taken. (See Wrongs Act 1958 s. 48(1)(a)). In determining what precautions a reasonable person would take, a court considers several factors, including: the likelihood of the risk occurring, the magnitude of the risk and the seriousness of the potential harm and the expense difficulty and inconvenience of taking the precautions - see Council of the Shire of Wyong v Shirt [1980] HCA 12; (1980) 146 CLR 40 and Wrongs Act 1958, section 48(2). Evidence of a recognised and general practice is also relevant, although I am not persuaded that the survey of companies by Professor Staples amounts to that.
3. Taking in to account that the duty was a duty to repair and maintain the common property and attendant fixtures and services, I am persuaded that the Respondent's actions were reasonable up to the time of the report of damage to a box in a storage cage - that is, about 22 or 23 August 2007. By keeping the place clean and free from rubbish and regular inspections, the Respondent was protecting the property from rodent infestation, though not from every possible rodent which might enter. As Professor Staples said, it would be almost impossible to completely seal the building against every rodent.
4. Then, once rodent activity was observed, the Respondent took action. Mt Te Boekhurst was made aware of the rodent damage to a box in a storage cage on 22 August 2007 (at the earliest, on the evidence before me) and he acted by August 24, that is, within two days at most. Then the damage occurred to the Applicant's vehicle on the night of 27 August at the latest - five days at most after the report of damage to the box in the cage.
5. The Applicant submitted that the Respondent was under a duty to act immediately, once the presence of rats was known, especially given the relatively low cost of doing so. I was not persuaded of this. Had the Respondent delayed action say for 6 weeks and allowed the rat population to expand, actually bringing disease to anyone who used the car park, that may well have been a breach of the duty to repair and maintain the common property and services associated with the car park. Another example of a hypothetical breach might be failure to repair damage to the floor of the car park, so that a resident tripped and suffered injury. Here, however, the Respondent acted relatively quickly to deal with evidence of a minor incursion of rodents (or a rodent) into the car park. Unfortunately, the action was not sufficiently quick to eradicate the rat which chewed the Applicant's car.
6. I have also taken in to account Professor Staples' evidence that all the reported damage - namely the chewing of a box in a storage cage, the damage to the Applicant's car and the damage to Mr Hasagowa's car, could have been done in a short space of time, by a single rodent. In that case, it may be that baits or traps would not have prevented the damage which occurred - a rodent might well prefer those items to any bait.
7. There was no evidence before me that the Applicant had actually driven the car between 22 or 23 August and 27 August, so the damage may even have occurred at the same time as the damage which was inflicted on the box in the storage cage. In that case, the Respondent has not failed in any duty to act after its employees became aware of the rat damage. However, even assuming that the damage occurred on the night of 27 August, I was not persuaded that the Respondent failed in its duty to repair and maintain the common property, fixtures and services. That duty, in my view, did not equate with a duty to keep out every rat.
8. Another way of expressing this conclusion is to say that the damage suffered by the applicant was not of the kind which the statutory duty was intended to prevent. This principle has been applied by the courts to exclude liability in actions based upon statutory duty. The cases referred to in Halsbury's Laws of Australia on this point mostly concern specific statutory duties and in any case, it appears that the duty need not prescribe a specific action in order to be the basis for a successful action. However, in the present case, looking at the Act, there is no indication that the duty was imposed for the protection of the private chattels of lot owners from ordinary events which might happen anywhere to anyone. On the evidence before me, the Applicant's car might have suffered a similar fate if it had been parked outside the car park, near any potential food source or potential pathway for rodents.
9. The Applicant submitted that the Respondent's actions when it knew of the rodent damage were too slow, that the Respondent was under a duty to act immediately and that the pest control program was not approved by the owners corporation's chair until 30 August and this was too long. The last point is irrelevant, as the issue before me was whether action should have been taken before the night of 27 August 2007. On the other point, I was not persuaded that the Respondent was under a duty to act immediately. It did act, but not sufficiently quickly to protect the Applicant's car.
10. Had this been a duty to keep out all vermin from the common property, then I would agree that the Respondent acted too slowly. However, it was not that precise a duty. It was duty to repair and maintain the common property and services. In my view it was consistent with that duty, once damage was observed, to take early action to prevent an infestation of rats, but not required by that duty for the Respondent to immediately eradicate each rat on the premises. Therefore, in my view, the Respondent's actions were not in breach of the duty to repair and maintain the common property and the fittings fixtures and services.

Whether the damage to the Applicant's vehicle was caused by the Respondent's inaction?

1. I have not found that the Respondent breached its duty. However, if I am wrong about that, I add that I was not satisfied in any case that an earlier pest control program or greater speed in instituting one after the first observation, would have prevented the damage to the Applicant's vehicle. There was no direct evidence that different actions from the Respondent would have avoided the damage to the Applicant's car.
2. There was no evidence that a rat, once in the basement, or a rat entering the basement for the first time, for any reason, would have found and taken a lethal bait or trap before it found the Applicant's car. The Applicant's submissions assumed that a pest control program would be effective. I was prepared to assume that a commercial bait program in place for an appropriate period of time would have vastly reduced the likelihood of damage to the Applicant's car, but even then there was no evidence to satisfy me on the balance of probabilities that the damage in this case, which could have been done quite quickly by a single rodent, would have been avoided. This was not a case, like Stockwell v Victoria (based in nuisance) where the Respondent had encouraged the wild dogs and virtually ignored their presence, leading to an infestation of pests which did persistent damage. Here, the damage occurred quickly in an environment where the Respondent had acted reasonably, according to the expert evidence.

1. It is unnecessary to consider the evidence about the extent of loss suffered by the Applicant, as he has not succeeded in demonstrating that the Respondent is liable for that loss.

2. For the above reasons, the application is dismissed.
3. The parties having indicated their intention to seek an order for costs, that question is reserved.