The Applicant's representative gave affirmed verbal evidence to the Tribunal and tendered a number of documents in support of his case.

The Applicant's representative said that he was contacted after hours by the occupant of unit 2 at the subject premises who told him that there was a flood occurring from a sewage pipe. He said that the occupant asked him to attend and to fix the emergency flood. He said that one of his workers attended the premises around 7:15am to 7:30am and assessed that the problem was due to a common property sewage pipe. The Applicant then attempted to contact the responsible strata manager but was unable to do so as it was after hours.

They then commenced work on halting the flood on the instructions of the occupant of unit 2. They performed work until 9:00am when they contacted the strata manager again to obtain further instructions. He said that the strata managers directed them to halt all work at the premises saying that as they were not the authorised plumber they were not entitled to perform any work at the premises.

He said that he informed the strata manager that in order to secure the site and make it safe he would have to complete a small amount of further work, which he completed, and then he would not commence any further rectification work unless directed to do so. He said that the strata manager arranged for another plumber to complete the rectification work.

He said that he then sent an invoice for his work to the strata manager but that they had failed to pay for the work performed. He argued that as the work was performed on the common property that the owners corporation of the strata scheme was responsible for payment and that the Tribunal should order it to pay the account as invoiced. The Applicant's representative tendered a copy of the invoice # 00010756 in the amount of $538.00 dated 23 March 2004 into evidence.

The Respondent's representatives gave sworn verbal evidence to the Tribunal.

The Respondent's representatives argued that it was not responsible for payment of the work performed as there was no authorised work order and that there was no standing contract with the Applicant to perform work at the premises. They argued that the responsible party was the managing agent of the owner of unit 2, that being HT Wills. No explanation was offered for this assertion.

The Respondent's representatives said that it only used particular tradespersons at the premises that had been selected by the owners corporation. They said that the Applicant was not an approved tradesperson and not authorised to perform any work. They further argued that the list of approved tradespersons was posted on the noticeboard at the premises and that the owners corporation required that it be detailed in any lease of a unit at the premises. Upon questioning by the Tribunal the strata managers said that they had not checked recently to see if this instruction was on the noticeboard at the premises or whether it was provided to all tenants in the leases at the premises.

The Respondent's representatives agreed that the work performed by the Applicant was on common property that was the responsibility of the owners corporation. They also did not dispute the amount charged for the work performed. The Respondent tendered a copy of the minutes of the owners corporation where a motion had been passed authorising payment for half the amount charged in settlement.

On all of the evidence, on the balance of probabilities, the Tribunal finds that:

1. The Applicant is a builder and the Respondent a homeowner, and that the work performed was emergency work as defined under the Home Building Act 1989.

2. That there is jurisdiction to hear the claim for debt recovery under the provisions of the Home Building Act 1989.

3. That a sewage flood occurred on the subject premises causing the occupant of unit 2 to contact the Applicant for assistance.

4. That all of the work performed was to the common property at the premises for which the owners corporation is responsible.

5. While neither party called the occupant of unit 2 to give evidence, I am satisfied on the evidence of the parties that the occupant of unit 2 was acting on behalf of the owners corporation in engaging the Applicant, in an emergency situation, to halt the flood.

6. That in the circumstances of an emergency it is reasonable for an occupant at the premises, in the absence of the strata manager or a member of the executive committee of the owners corporation, to take reasonable steps to address the emergency.

7. That the occupant of unit 2 was not acting in his own right, but on behalf of the owners corporation in engaging the Applicant to halt the sewage flood at the premises, and that in the circumstances of this emergency it was reasonable to do so.

8. The work performed by the Applicant was urgent and necessary and would have been required to be performed by the owners corporation.

9. That it would be unjust to allow the owners corporation, having obtained the benefit of the Applicants services, to be enriched by avoiding payment simply because the Applicant was not the preferred or authorised tradesperson for this work.

10. That the amount charged by the Applicant for the work performed is reasonable and that the Applicant is entitled to payment for the invoiced amount from the owners corporation.

1. The Respondent, THE OWNERS CORPORATION SP 54915 "...", HURSTVILLE 2220, C/- Network Strata Services, "...", HURSTVILLE NSW 2220, is to pay the Applicant, RAPID PLUMBING REPAIRS PTY LTD, "...", KOGARAH NSW 1485, the sum of $583.00 on or before 4 February 2005 (Reasons - PAYMENT OF INVOICE # 00010756 $583.00).