1. The applicant, Bruce Phoenix City Pty Ltd (Bruce Phoenix) operates a Chinese restaurant in the Stables Shopping Centre, Mill Park. Juliana Vo is a director of Bruce Phoenix and represented it in this proceeding.
2. The restaurant is operated out of a retail premises known as shop 9 and 10 (Lot 24) owned by the interested party, Andy Choi (Mr Choi) and Carole Choi. Lot 24 is affected by Owners Corporation No.1 SP025904L (the owners corporation), the respondent. The owners corporation's manager is Teska Carson.
3. Mr Choi and Ms Choi lease Lot 24 to Bruce Phoenix. The managing agent is Miles Real Estate.
4. Bruce Phoenix claims that it has suffered significant financial losses as a result of the owners corporation's failure to maintain a shared heating and cooling system that is located on common property and which serviced Lot 24 and other lots in the shopping centre when Bruce Phoenix became a tenant of Lot 24.
5. Specifically, Bruce Phoenix claims:
   • (a) Reimbursement of $11,229.43 ($350.00 per month for 32 months, which is Bruce Phoenix's estimate of Lot 24's share of the running costs for the shared heating and cooling system, which it says was non-operational, and interest of $470.00)
   • (b) Reimbursement of $1975.80 ($395.16 for the months of August, September, October, November and December 2013, which is Lot 24's share of the running costs for the shared heating and cooling system after it says it asked for the system to be disconnected)
   • (c) Compensation of $34,300 (loss of income of $500.00 per week for 68 weeks and interest of $300.00 as at 24 August 2015, due to customers walking out of the restaurant as a result of the heating and cooling issues)
   • (d) Reimbursement of $144.21, being the cost of obtaining the owners corporation certificate, and
   • (e) Reimbursement of the application fee of $575.30 and an order that the owners corporation pay Bruce Phoenix's legal costs.
6. Bruce Phoenix contends that the owners corporation's failure to maintain the shared system is in breach of ss. 4, 46 and 47 of the Owners Corporation Act 2006 (Vic) (the OC Act). Section 46 of the OC Act provides that an owners corporation must repair and maintain the common property and the chattels, fixtures, fittings and services related to the common property or its enjoyment. Section 47 provides that an owners corporation must repair and maintain a service in, or relating to, a lot that is for the benefit of more than one lot and the common property. Section 4 simply states that these duties are also a function of an owners corporation.

1. Initially, the lease for Lot 24, which started on 20 October 2010, was between Andy Choi and Carole Choi, the owners of Lot 24, and Tuan Nguyen and Juliana Vo (the first lease). The lease was transferred into Bruce Phoenix's name on 2 April 2012 by way of a transfer of lease dated 16 April 2012. A new four year lease starting on 14 August 2014 was signed on 6 March 2015.
2. Bruce Phoenix is responsible for payment of the owners corporation fees in relation to Lot 24 under the lease.[1]
3. Bruce Phoenix is also responsible for maintaining and keeping in good repair any heating, cooling or air-conditioning equipment exclusively serving Lot 24.[2]
4. At the hearing, Ms Vo applied to join herself and Tuan Nguyen as applicants after the owners corporation contended that if Bruce Phoenix was successful against it, Bruce Phoenix could not claim any losses before 2 April 2012, when the lease was transferred to it. The parties agreed that this application should be decided after I had decided whether the owners corporation had breached any provisions of the OC Act.

1. The parties agreed that at the start of the first lease, Lot 24 was connected to a heating and cooling system that was shared by many of the lots affected by the owners corporation (the shared heating and cooling system). The shared heating and cooling system consisted of a heating and cooling unit located in the plant and equipment room, and ductwork and or pipes located in the roof above some of the lots, all of which was located on common property. The heating and cooling system was around 25 years old.
2. The parties also agreed that Lot 24 had a free standing air conditioning unit in the kitchen that exclusively served Lot 24 (the exclusive air conditioning unit).
3. In addition, Lot 24 has one large vent and one smaller vent located in one of the walls of the restaurant and three or four smaller vents in the ceiling of the restaurant. There is also a control panel on the restaurant wall, which the parties agreed was for the shared heating and cooling system.
4. It was also agreed that on 30 July 2012, Mr Choi and Ms Choi installed a new split system air condition unit in Lot 24 at their cost.
5. The parties also agreed that the owners corporation was responsible for the service and repair of the shared heating and cooling system, which consisted of a heating and cooling unit located in the plant and equipment room and ductwork and or pipes located in the roof above some of the lots, which was all common property.
6. Ms Vo gave evidence that after a new split system air condition unit had been installed by the landlords in July 2013, Bruce Phoenix stopped using the shared heating and cooling system. However, the shared heating and cooling system was not disconnected from Lot 24 until November 2013 and the owners corporation continued to charge Mr and Ms Choi fees for the cost of running the shared heating and cooling system until 30 November 2013.
7. The owners corporation agreed that it is responsible for the service and repair of common services that are shared by more than one lot and the common property.[3] However, it contended that Bruce Phoenix was unable to prove that any problems in relation to the heating and cooling in Lot 24 stemmed from the shared heating and cooling system. The owners corporation contended that in fact, the problems in relation to the heating and cooling in Lot 24 stemmed from the exclusive air conditioning unit in the kitchen, which was not connected to the shared heating and cooling system.

The operation of the heating and cooling systems

1. Whilst neither party called any witnesses in relation to the operation of the heating and cooling systems, Mr Phillpott, counsel for the owners corporation, provided me with a diagram in relation to the operation of heating and cooling systems generally that he had obtained from the internet. Mr Phillpott relied on this diagram in support of his contentions in relation to the shared heating and cooling system that:
   • (a) the heating and cooling unit in the plant and equipment room was an air handling unit
   • (b) the air handling unit was connected to ductwork or pipes which ran through the shopping centre roof to each of the lots
   • (c) the air handling unit heated or cooled air, which was then pumped through the ductwork or pipes into the connected lots
   • (d) the vents in the ceiling of Lot 24 were supply air grills (also known as supply air registers), and
   • (e) the heated or cooled air entered Lot 24 (and the other connected lots) via supply air grills in the ceilings.
2. Mr Phillpott also relied on the diagram in support of his contentions in relation to the exclusive air conditioning unit that:
   • (a) the free standing air conditioning unit in the kitchen was an air handling unit
   • (b) the large vent in the wall was a return air grill
   • (c) the vents in the ceiling were supply air grills
   • (d) steel ductwork runs from the return air grill to the air handling unit
   • (e) steel ductwork also runs from the air handing unit to the supply air grills
   • (f) a fan in the air handing unit draws in air from the restaurant through the return air grill, which runs through the steel ductwork to the air handling unit
   • (g) the air handling unit cools or heats the air, and
   • (h) the fan in the air handling unit blows the cooled or heated air through different steel ductwork back out into the restaurant through the return air grills.
3. Whilst Ms Vo did not agree with Mr Phillpott's contentions, she acknowledged during the hearing that she had no knowledge of how the shared heating and cooling system or the exclusive air conditioning system worked and she did not provide me with any evidence to contradict Mr Philpott's contentions. In the absence of any evidence contradicting Mr Phillpott's contentions, I am satisfied that, broadly speaking, his contentions accurately describe how the shared heating and cooling system and the exclusive air conditioning system operated.

1. Both parties also relied on a report from Optima Heating - Air Conditioning dated 16 June 2015 (the Optima report). Neither party called anyone from Optima to give evidence at the hearing.
2. According Eugene Lam, who wrote the report, Optima conducted an on-site assessment, site measurements and information gathering and sent their registered electrician to look at the existing tenancy switchboard and to test the existing wall controllers and thermostats. Mr Lam also stated that:

We confirm that there is a very old existing "Muller" air handling unit (AHU) mounted at high level within the kitchen area. The AHU has solid sheetmetal ducting connected to high level wall mounted supply and return air registers on the restaurant side. There are also old existing ceiling mounted return and supply air registers mounted around the restaurant ceiling.

The old air handler unit (AHU) appears to have cold and hot water reticulation pipework connected into it which indicated that it is connected into a central plant that provides heating and cooling into the AHU.

It was apparent that this existing ducted AHU system is electrically disconnected from somewhere and that all of the existing wall controllers do not work and the system has not been working or been maintained for quite some time.

Currently the restaurant dining area is heated and air conditioned from an existing wall split Hi Wall system and a window mounted room air conditioning unit.

Both existing systems are currently working, but do not provide enough capacity and have very poor airflow distribution for the diners and patrons.

Our recommendation would be to install a new stand-alone air conditioning system that will provide adequate heating and cooling for the main restaurant dining areas which excludes the reception and kitchen areas.

Ms Vo's evidence and contentions about the shared heating and cooling system

1. Ms Vo gave evidence that since the start of the first lease, the shared heating and cooling system was faulty, ineffective, continually breaking down and did not provide Lot 24 with adequate heating or cooling. Ms Vo claimed that the problems in relation to the shared heating and cooling system arose due to its age and lack of maintenance. Ms Vo contended that the owners corporation should have either repaired, replaced or disconnected the share heating and cooling system well before December 2014. Ms Vo contended that Bruce Phoenix should be reimbursed for the fees it paid in relation to the shared heating and cooling system because it received no benefit from the system.
2. Ms Vo relied on a document summarising the maintenance done on the shared heating and cooling system between 5 January 2010 and 2 November 2011. She also relied on a large number of reports and invoices in relation to the servicing and repair of the shared heating and cooling system since the start of the lease.
3. Ms Vo contended that the reports and invoices demonstrated that there were ongoing issues with the shared heating and cooling system from 2010 because repairs were being done outside of the usual preventative maintenance. Under cross-examination, Ms Vo conceded that each time the faults were reported, the owners corporation manager arranged for them to be repaired.
4. Ms Vo also gave evidence that she constantly complained about the shared heating and cooling system.
5. Ms Vo relied on a number of emails in support of her claim that she had constantly complained about the shared heating and cooling system.
6. Ms Vo relied on an email dated 28 July 2011 that she sent to Damian Wilson of Miles Real Estate, the landlords' agent, notifying them that the ducted heating system in the restaurant was not working. On 2 August 2011, Mr Wilson informed Ms Vo that the heating unit was owned by the owners corporation and that he has asked the owners corporation manager, Teska Carson to coordinate the repairs.
7. Ms Vo sent a follow up email on 8 August 2011 to Mr Wilson asking about the progress of the repairs. Later that day, Lisa Di Pietro of Teska Carson informed Mr Wilson that the problem had been 'attended to last week'.
8. Ms Vo also relied on an email dated 10 April 2012 that she sent to Kathy Paulka of Teska Carson which stated that 'the heater seems to be playing up again - there is no hot air coming out from the vents. Can you please advise the appropriate person and have them attend asap?'.
9. Ms Vo sent a second email dated 12 April 2012 to Ms Paulka and Nickie Poulos. The email stated that the heating/cooling unit had not been functioning for two days and asked when the problem would be rectified. It also stated:

As you can see, this continuous problem with the inadequate heating/cooling affects our business.

I note that in the past 12 months, I've contacted BodyCorp on a number of occasions about this complaint and to have the issue resolved. Summary is too hot due to the inadequate cooling. In winter it is to cold due to the inadequate heating. This is a continuous issue and needs to be resolved.

I also note that to date I have not seen any contractors in the shop - servicing, repairing or maintaining etc. the heating /cooling unit. Today, there is no communication about why the unit is not functioning, remedial action is taken etc. - either from BodyCorp or the contractors.

I am asking that this issue be resolved asap. I ask that there be a more permanent solution.

1. Ms Poulos replied later that day that the issue was a 'body corp. matter not a landlord matter' and asked her to call Teska Carson. Ms Vo claimed that the issue was not fixed until after 24 May 2012, which was when Dale Williams of Cowan Air sent an email to Ms Vo to make arrangements to fix the air conditioning the following day.
2. The third email relied on by Ms Vo was an email dated 25 September 2013 that she sent to Ms Marulli. This email stated:

In regards to the main air conditioning and heating unit, I note since taking over the business in March 2011 the main unit has failed to provide the required heating and cooling for our business.

In the past two years I note that I have made numerous complaints to both Body Corporate and Miles Real Estate about the lack of heating and cooling. As you can appreciate the continued issue with heating cooling that our business financially and our reputation. As mentioned the unit is old and arguably not fit for purpose.

In June 2012, we have since installed our own air-conditioning heating unit. Your record should show that we have not use the main unit since this time. Therefore any increase in relation to the main unit is not warranted as main unit was decommissioned and replaced with another unit which we currently manage.

I asked the current owners corp fees be reviewed and asked that any previous fees and charges attributed to the main air-conditioning heating unit be reviewed as it was disconnected in June last year (2012).

1. In addition, Ms Vo relied emails from other lot owners complaining about heating and cooling issues, which she contended proved that the shared heating and cooling system was constantly faulty. In particular, Ms Vo relied on the emails of Susan Sandy send to Teska Carson between 25 January 2014 and 26 February 2014. The email dated 26 February 2014 referred to ongoing problems with the air conditioning and heating systems since January 2010. It also stated that discussions 'at the Body Corporate level with regard to replacing the two systems have not changed in the last 4 years, i.e. lots of talking but no action, which has resulted in huge inconvenience and discomfort for all the tenants and their clients over the years'.
2. Under cross-examination, Ms Vo admitted that she did not call anyone at Teska Carson about her concerns about the efficiency of and repeated faults with the shared heating and cooling system between September 2011 and March 2012. She then corrected her evidence and said she had called Teska Carson about these issues but had not made any written complaints. She also admitted that she had not contacted Teska Carson about the shared heating and cooling system between May 2012 and July 2013. Ms Vo also agreed that the first time she claimed reimbursement for the fees paid in relation to the shared heating and cooling system was in her email dated 9 February 2015.

The owners corporation's evidence and contentions in relation to whether it failed to maintain the shared heating and cooling system

1. Kathleen Paulka, who is currently assistant to Penelope Grey, the owners corporation manager, gave evidence on behalf of the owners corporation at the hearing.
2. Ms Paulka gave evidence that she has worked for the previous owners corporation manager since 2011 and the current one since around March 2015.
3. Ms Paulka gave evidence that since 2011, the owners corporation managers ensured that maintenance was regularly conducted on the shared heating and cooling system, initially once a month and later every three months. She also gave evidence that the owners corporation managers ensured that all necessary repairs to the shared heating and cooling system were completed in a timely manner.
4. Ms Paulka's evidence was that the documents relied on by Ms Vo in relation to the problems with the shared heating and cooling system in July 2011 show that the owners corporation manager arranged for the problems to be fixed within a reasonable timeframe.
5. She also gave evidence that Lot 24's heating problems in April 2012 resulted from faults with the exclusive air conditioning unit in Lot 24, not the shared heating and cooling system. Ms Grey relied on a tax invoice from Cowan Air addressed to Mr Choi and Ms Choi care of Miles Real Estate dated 12 April 2012 in relation to repairs to the exclusive air conditioning unit, an email from Ms Vo to Nickie Poulos dated 19 June 2012 stating that the heater was not working again, and emails between Cowan Air and Nickie Poulos in support of this claim.
6. Mr Phillpott contended that as s. 4 of the OC Act does not give rise to any duty or obligation, it does not contain any rights on which a cause of action can be based. He also contended that duties set out in s 46 of the OC Act do not apply because the shared heating and cooling system is not common property as defined by s. 3 of the OC Act or a chattel, fixture, fitting and service related to the common property or its enjoyment.
7. In relation to Bruce Phoenix's claims under s 47, Mr Phillpott contended that in order to succeed, Ms Vo had to prove:
   • (a) which part of the shared heating and cooling system was defective (if any)
   • (b) that the defective part of the system serviced a number of lots and was therefore the responsibility of the owners corporation to maintain
   • (c) that the owners corporation had failed to maintain this part of the shared heating and cooling system, and
   • (d) that as a result, it was not heating or cooling Lot 24, or that it failed to arrange necessary repairs within a reasonable time frame.
8. Mr Phillpott contended it was not enough for Ms Vo to only prove that the system broke down or was not working to capacity from time to time.
9. Mr Phillpott conceded on behalf of the owners corporation that the shared heating and cooling system may have been coming to the end of the its working life. However, he contended that far from supporting Ms Vo's claims, the reports and invoices in relation to the servicing and repairs of the shared heating and cooling system demonstrated that the shared heating and cooling system was well maintained by the owners corporation. Mr Phillpott also contended that the reports and invoices showed that whenever there was a problem with the system, the owners corporation through its manager arranged for the problem to be fixed in a timely manner.
10. Mr Phillpott also contended that Ms Vo had not provided the Tribunal with any evidence to show that if the shared heating and cooling system was generally ineffective or faulty, the fault stemmed from plant and equipment that the owners corporation was responsible for rather than parts of the system that may have exclusively serviced Lot 24, which Bruce Phoenix was responsible for maintaining. Specifically, Mr Phillpott contended that Ms Vo could not prove that the fault did not stem from pipes and vents that exclusively serviced Lot 24 after they branched off from the ductwork that benefited multiple lots.
11. In relation to the emails from other lot owners, Mr Phillpott contended they were irrelevant because the lots owners own lots located in the professional suites, which were serviced by a different shared heating and cooling system to the one that services Lot 24. He also contended that as the authors of the emails were not called to give evidence, not much weight should be placed on them.
12. Mr Phillpott also relied on the lack of written complaints from Ms Vo or any other person associated with Bruce Phoenix, and Ms Vo's delay in asking for a refund of the fees Bruce Phoenix paid in relation to the running costs of the shared heating and cooling system in support of his contention that the claims made in this proceeding by Ms Vo were not bona fide.

Findings in relation to the claim for compensation for failure to maintain the shared heating and cooling system

1. I am not satisfied that the owners corporation failed to maintain the shared heating and cooling system for the following reasons.
2. Ms Vo was only able to provide me with evidence of two instances where she made written complaints about the shared heating and cooling system before Bruce Phoenix stopped using it on 30 July 2012. In relation to the first written complaint that was made on 28 July 2011, I am satisfied based on the contents of the emails in response that the problems were resolved before 8 August 2011, which was within a reasonable time frame.
3. In relation to the second written complaint made on 10 April 2012, the emails relied on by owners corporation clearly show that the problems with the heating in April 2012 related to the faults with the exclusive air conditioning unit in Lot 24, not the shared heating and cooling system. Ultimately, this led to Mr Choi and Ms Choi paying for the installation of a new split system air conditioning unit on 30 July 2012.
4. In addition, I agree with Mr Phillpott's contentions that the reports and invoices in relation to the serving and repair of the shared heating and cooling system demonstrate that the shared heating and cooling system was well maintained albeit that it was coming to the end of its working life.
5. Further, most of the emails from other lot owners complaining about the heating and cooling were not relevant because they were all sent in 2014 or later, over 12 months after Bruce Phoenix was disconnected from the shared heating and cooling system and stopped paying any fees in relation to its costs. Whilst I acknowledge that one of Susan Sandy's emails refers to 'ongoing problems with the air conditioning and heating systems' since January 2010, this statement alone is insufficient for me to be able to find that the shared heating and cooling system was faulty, ineffective, continually breaking down and did not provide Lot 24 with adequate heating or cooling since the start of the first lease, or that the owners corporation failed to maintain the shared heating and cooling system as alleged by Ms Vo.
6. In addition, Ms Vo's lack of written complaints since the start of the first lease and the fact that she made no claim on behalf of Bruce Phoenix for reimbursement of the fees that related to the costs of the shared heating and cooling system is not consistent with her evidence that from the start of the lease, the system was faulty, ineffective, continually breaking down and did not provide Lot 24 with adequate heating or cooling. If the problems with the shared heating and cooling system were as serious as Ms Vo claimed, I would have expected many written complaints and requests for refunds of fees from shortly after the start of the first lease until Mr Choi and Ms Choi installed the new split system air conditioning unit.
7. Accordingly, Ms Vo has not been able to satisfy me that the owners corporation failed to maintain the share heating and cooling system.
8. For these reasons, Bruce Phoenix's claim for reimbursement of the fees charged to Lot 24 for the running costs of the shared heating and cooling system and compensation for loss of income is dismissed.

Ms Vo's evidence and contentions in relation to her request to be disconnected from the shared heating and cooling system

1. Mr Vo contended that it was not Bruce Phoenix' responsibility to inform the owners' corporation that Lot 24 should be disconnected from the shared heating and cooling system.
2. Despite this, Ms Vo gave evidence that on 21 August 2013, she emailed Teska Carson and Miles Real Estate asking for an explanation as to why the owners corporation fees, which Bruce Phoenix was responsible for paying, had significantly increased. She sent a follow-up email to them on 5 September 2013. Ms Marulli sent Ms Vo an email on 12 September 2013 that stated that the reason for the increase was predominantly an increase in the shared cooling and heating system charges, which was $6,341.45 per year. Ms Marulli explained that the shared cooling and heating system charges had increased because only the lots connected to the system paid the costs relating to the system and many lots had been disconnected. The email also contained the following:

Note: For your reference given the age of the current AC system, it may be worthwhile considering establishing your own AC system that the tenants are responsible for which in turn can reduce your OC fee contributions.

1. In an email to Ms Marulli dated 1 October 2013, Ms Vo asked for the shared cooling and heating system to be disconnected on a day to be agreed to minimise any disruption to the business, which was open six days a week.
2. On 7 November 2013, Ms Vo again emailed Ms Marulli, as she had received the fee notice for November 2013 and no adjustment had been made in relation to Lot 24's share of the running costs of the shared heating and cooling system.
3. Ms Vo gave evidence that she was only informed of the need to obtain Mr Choi's permission to have the shared cooling and heating system disconnected when she received an email from Ms Marulli on 12 November 2013 which stated this. Nickie Poulos, the managing agent for Lot 24, arranged for Mr Choi to notify Teska Carson of his approval that day.
4. Andy Choi sent an email to Lisa Marulli of Teska Carson dated 13 November 2013 authorising the disconnection of Lot 24 from the shared cooling and heating system. Ms Marulli then sent an email to AC Hall Airconditioning that same day asking for Lot 24 to be fully disconnected from the main system based on authorisation from the landlord of Lot 24 (Mr and Ms Choi).
5. According to Penelope Grey, the current owners corporation manager, Lot 24 was disconnected from the shared cooling and heating system by the end of November 2013 and the costs in relation to this system were removed from the fees charged to Lot 24 by the owners corporation from 1 December 2013. [4] The entire air conditioning system owned by the owners corporation was decommissioned in December 2014.[5]

The owners corporation's contentions in relation to the delay in disconnection

1. Mr Phillpott contended that Bruce Phoenix had a very high bar to jump to satisfy the Tribunal that the owners corporation's manager had failed to exercise due care and diligence in carrying out its functions and powers by failing to immediately inform Ms Vo that she needed her landlords' consent to disconnect Lot 24 from the shared heating and cooling system.
2. Mr Phillpott also contended that Ms Vo had failed to do so.
3. Mr Phillpott contended that in any event, Ms Vo had not identified which of the functions set out in s. 4 of the OC Act obliged the owners corporation to notify Bruce Phoenix of the process for arranging Lot 24 to be disconnected from the shared heating and cooling system.

Findings in relation to the delay in disconnection

1. Ms Vo was unable to satisfy me that the owners corporation was not entitled to charge Mr and Mrs Choi fees relating to the cost of running the shared heating and cooling system after they had installed the new split system air conditioning unit into Lot 24. Ms Vo did not ask for the shared heating and cooling system to be disconnected until 1 October 2013 and Mr Choi did not authorise the disconnection until 13 November 2013. The owners corporation was clearly able to charge for the cost of running the shared heating and cooling system until its disconnection was asked for and approved by Mr Choi.
2. Further, I am not satisfied that the owners corporation's manager's delay in informing Ms Vo that she needed her landlords' permission to disconnect Lot 24 from the shared heating and cooling system amounted to a failure to exercise due care and diligence in breach of s. 5 OC Act.[6] In my view, this was a matter for Mr Choi and Ms Choi to raise with the owners corporation or for Ms Vo on behalf of Bruce Phoenix to take up with Mr Choi and Ms Choi.
3. For these reasons, Bruce Phoenix's application for an order that the owners corporation reimburse it fees charged in relation to the shared heating and cooling system between 30 July 2012 and 30 November 2013 is dismissed.

The owners corporation's failure to develop a maintenance plan

1. Ms Vo also gave evidence that the owners corporation did not have a maintenance plan for the shopping centre in breach of s. 36 of the OC Act. She contended that if the owners corporation had developed a maintenance plan, it would have revealed the 'shelf life' of the shared heating cooling system and that on becoming aware of this information and the ongoing issues with the shared heating and cooling system earlier, the owners corporation may have decided to disconnect or upgrade the shared heating and cooling system earlier.
2. Mr Phillpott conceded that the owners corporation did not have a maintenance plan for the shopping centre.
3. However, he contended that there was no evidence of any connection between the failure to have a maintenance plan and any losses that Bruce Phoenix may have suffered. He also contended that as Ms Vo had not provided the Tribunal with any evidence of the age of the shared heating and cooling system, that it had reached the end of its expected life span or that the system had failed, this claim must fail.
4. Mr Phillpott also submitted that the Tribunal would have to engage in 'guesswork' to determine how the development of a maintenance plan might have benefited Bruce Phoenix.
5. I agree with Mr Phillpott's contention that as there was no evidence that the shared heating and cooling system had reached the end of its expected life span, this claim must fail. I also agree with Mr Phillpott's contention that there was no evidence of any connection between the failure to have a maintenance plan and any losses that Bruce Phoenix may have suffered, particularly in light of my finding that Bruce Phoenix has been unable to prove that the owners corporation failed to maintain the shared heating and cooling system. Accordingly, I do not proposed to make any order as a result of the owners corporation failure to have a maintenance plan as required by s. 36 of the OC Act.

Did the owners corporation comply with Part 10 of the OC Act?

1. Ms Vo contended that the owners corporation failed to comply with Part 10 of the OC Act, which sets out how complaints are to be managed and resolved. Ms Vo contended that as a result, she was obliged to pay $144.20 for an owners corporation certificate, which she required to demonstrate that the owners corporation had failed to comply with Part 10 of the OC Act and to maintain the shared heating and air conditioning system.
2. Mr Phillpott denied that the owners corporation failed to comply with Part 10 of the OC Act. Mr Phillpott contended that as Ms Vo had failed to make her complaint in the approved form in accordance with s 152(2) of the OC Act or ask for the form under s 152 (3) of the Act (which was admitted by Ms Vo), the owners corporation was not obliged to start the dispute resolution process set out in Part 10 of the Act.
3. Mr Phillpott also contended that Ms Vo did not require an owners corporation certificate to make this application because she had all relevant documents in her possession.
4. I am satisfied that as Ms Vo did not make a complaint to the owners corporation in the approved form, the owners corporation was not obliged to start the dispute resolution process set out in Part 10 of the Act and accordingly, has not breached any provision in this Part. Accordingly, Bruce Phoenix's claim for reimbursement of the cost of the owners corporation certificate is dismissed.

1. For these reasons, I order that Bruce Phoenix's claim is dismissed.
2. As the respondent and the interested party were legally represented at the hearing, I will also give them leave to apply for an order that Bruce Phoenix pay their costs.

[1] Clause 5.4.2 and Item 10 of the lease.

[3] S. 47(1) of the Owners Corporations Act 2006 (Vic) (the OC Act).

[4] As set out in an email dated 2 September 2015.

[5] As set out in an email dated 2 September 2015.

[6] Whilst Bruce Phoenix's points of claim did not make any allegations against the owners corporation's manager, this potential claim was raised by me during the hearing given that Bruce Phoenix was represented by its director, a self represented litigant on the basis that it is permissible for the Tribunal to identify any issues with are central to the determination of the proceedings (see clause 14(b) of PNVCAT 3).