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[2026] ACAT 45
ACT Civil and Administrative Tribunal
2026-07-22
Original judgment source is linked above.
Source: the ACT Civil and Administrative Tribunal (www.acat.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
SCHMIDT v VANTAGE STRATA PTY LIMITED & ANOR (Civil Dispute) [2026] ACAT 45 XD 1350/2025 Catchwords: CIVIL DISPUTE – Whether the owners corporation and strata manager must compensate a tenant for the theft of their motorbike from the carpark of the relevant unit complex – respondents did not owe a duty of care to the tenant to protect their goods from the acts of third-party criminals – even if such a duty did exist, the acts of the respondent did not fall short of what a reasonable person would do - the respondents did not fail to take reasonable precautions against the reasonably foreseeable risk of theft from garage - even if there was a breach, causation could not be established in the absence of evidence of the time of the theft and the applicant’s assumed risk and the work of the thief – the building manager’s failure to locate CCTV footage of the theft and the deletion of relevant footage was not negligent
Legislation cited: Civil Law (Wrongs) Act 2002 ss 43, 45, 160, 168 Unit Titles (Management) Act 2011 ss 59, 60 Cases cited: Bird v DP (a Pseudonym) [2024] HCA 41 Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd [1931] HCA 53 Modbury Triangle Shopping Centre Pty Limited v Anzil [2000] HCA 61 Proprietors of Strata Plan 17226 v Drakulic [2002] NSWCA 381 Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19 Texts/Papers Cited: GeoScience Australia, Sunrise, Sunset and Twilight Times (Web Page, 22 June 2026) Tribunal: Senior Member J Francis Date of Orders: 15 July 2026 Date of Reasons for Decision: 15 July 2026 Date of Publication: 22 July 2026 AUSTRALIAN CAPITAL TERRITORY ) CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 1350/2025
BETWEEN: BRODY SCHMIDT Applicant AND: VANTAGE STRATA PTY LIMITED First Respondent THE OWNERS – UNITS PLAN 4693 Second Respondent
TRIBUNAL: Senior Member J Francis DATE: 15 July 2025
ORDER
……………………………….. Senior Member J Francis REASONS FOR DECISION 1. The applicant last saw their 2010 Suzuki DR-Z400SM motorbike on the evening of Thursday 9 January 2025, after parking it in the basement carpark at a unit complex in Turner, where they were a tenant. At that time the garage roller door to the unit complex was broken and a security guard was stationed at the garage entrance. The guard had been engaged by the first respondent (the contractor manager engaged by the second respondent to provide strata and building management services) on the instructions of the second respondent (the owners of the relevant units plan).
The applicant discovered the motorbike’s theft, on their return to the premises, on Sunday 12 January 2025, after spending Friday at work and then Friday and Saturday nights at the NSW Coast. They immediately reported the theft to the police.
The application is for compensation for $6,914, being the sum of the value of the depreciated value of the stolen motorbike with associated expenses such as registration, four sessions with a psychologist they attended following the theft and the Tribunal filing fee.
There are two grounds on which the applicant makes their claim.
First, because of the respondents’ failure to exercise reasonable care by failing to appropriately secure the unit complex carpark when the garage roller door was broken.
The first respondent denies liability because they say that they did not owe the applicant a duty of care when carrying out the second respondent’s instructions, acting as their agent.
The second respondent denies liability because they say that they did not owe the applicant a duty of care to protect them from loss from the criminal acts of third parties.
Both respondents submit that, should the Tribunal find a duty of care exists, neither has breached that duty of care and that, in any event, they did not cause the claimed loss.
The second basis of the applicant’s claim is the respondents’ failure to exercise reasonable care when reviewing CCTV footage, contributing to the failure to secure the return of the motorbike. The building manager, engaged by the first respondent, tried to extract a payment for reviewing the CCTV footage that had the potential to be larger than the value of the motorbike itself. The police investigation was accordingly prematurely finalised. The building manager’s failure to locate footage of the theft demonstrates a lack of required diligence in its review. And they did not preserve the footage.
The respondents say that they did not breach the duty of care. In the result, the building manager reviewed the footage without requiring payment of the anticipated fee. No relevant footage was discovered during the review, which was finalised on 7 March 2025, itself leading to finalisation of the police investigation. The building manager had no reason to preserve the footage.
Decision summary
The respondents did not owe the applicant a duty to protect their goods from the acts of third-party criminals. This is separate to, at least, the second respondent’s duty to take reasonable steps to prevent foreseeable harm arising from their 1 obligations as an occupier of the unit complex.
Even if I am wrong and there is a relevant duty of care owed to the applicant, I find that the respondents did not breach any such duty.
In any event, the evidential gap as to when the motorbike was stolen means that the applicant has not persuaded me that the breach caused their loss. One way of expressing it is to say that the ‘but for’ test fails; the applicant has not satisfied me that ‘but for’ the respondents’ breach of duty the theft would not have
1 Civil Law (Wrongs) Act 2002 s 168 occurred in the window that they say the motorbike would have been stolen, between 6:00 am and 9:42 am on Friday 10 January 2025.
Even if the window is expanded to include the period from the evening of Thursday 9 January to Sunday 12 January 2025 when the applicant discovered the theft, and a breach of duty is assumed, the chain of causation was broken. First, by the applicant’s own assumption of risk in parking their motorbike, securing it by way of steering lock and key activated ignition; second, by the work of the thief.
This leaves the claim in relation to the review of the CCTV footage. It is easy to empathise with the applicant’s sense of frustration about those circumstances, particularly because, relying on evidence, they considered the review critical to police investigation of the theft of their motorbike. There was a roughly two-month period between the initial request for review of the CCTV footage to its completion. Before the first respondent was motivated by police involvement to review the footage from 10 to 12 January 2025 it appeared that they would not do so unless paid a fee that could have been so large that it exceeded the value of the motorbike itself. And finally, the review revealed no footage of the theft before it was deleted.
Nevertheless, I also find that the respondents did not breach their duty of care in relation to review of the CCTV footage. The review was not prematurely finalised without consideration of the entire relevant period; the fee originally demanded was not required to be paid; there was no evidence that Mr Gowen did not diligently carry out the review and, on balance, there was no breach of duty in failing to preserve the relevant CCTV footage.
Accordingly, I dismiss the application.
Hearing
The matter was heard with UT 22 of 2026, Schmidt v The Owners of Units Plan 4693 and Vantage Strata in which the applicant sought various orders and declarations under the Unit Titles (Management) Act 2011 (Unit Titles (Management) Act) about the conduct of the respondents. Separately, in that proceeding, owners of the units title sought an order under section 31 of the Unit Titles (Management) Act for compensation for legal costs incurred in defending the application. A decision for UT 22 of 2026 is published simultaneously.
At the hearing, Mr Schmidt represented himself (with support from his co-tenant, Mr Adams Brown, and from a friend, Mr Grynberg). Mr Game instructed by Ms Doherty from Thomson Geer, represented the first respondent and Mr Develin of Clayton Utz, instructed by Mr Jaggers from Clayton Utz, represented the second respondent. Ms Vanessa Dix, of the second respondent, also attended. Prior to the hearing, the parties filed comprehensive written submissions.
Mr Schmidt and Mr Gowen, building manager of the unit complex for the first respondent, gave evidence and were cross examined. Although they gave a witness statement, Ms Dix was not required to give evidence at the hearing.
Agreed facts
2 Statement of Ms Dix dated 8 April 2026 referring to the tenancy agreement between the applicant and their co-tenant with their lessor which commenced 16 December 2024 articles of value in these areas. They recommended insurance as the second 3 respondent’s insurance does not cover these items. (f) Access to the garage is controlled by a single roller door accessed by a remote control and, in the garage, there are four closed circuit television (CCTV) cameras that might have captured the theft. There is no camera facing the space in which the applicant parked his motorbike. Two cameras face the exit of the carpark; one is parallel to the exit and on an internal wall adjacent to the garage roller door and the other is perpendicular to the exit on a concrete awning above the outside of the garage. (g) The garage roller door was broken on Thursday 9 January 2025 at around 6:31 am by a third party’s interference. (h) The first respondent, on the second respondent’s instructions, engaged a third party to repair the garage roller door and those repairs commenced on Thursday 9 January 2025. (i) Repairs to the garage roller door were not complete before the evening of Thursday 9 January 2025 and the second respondent instructed the first respondent to engage a security guard at the top of the driveway above the roller door from 6:00 pm that evening to 6:00 am the following day. (j) The security guard finished their duties and departed the unit complex at 6:00 am on Friday 10 January 2025. (k) Mr Gowen arrived at the unit complex on Friday 10 January 2025 at around 7:00 am. (l) The garage roller door was repaired on Friday 10 January 2025 at 9:42 am. (m) The applicant did not go to the garage between parking the motorbike there on the evening of Thursday 9 January 2025 and mid-morning on Sunday 12 January 2025. They had left the premises on Friday 10 January 2025 to go to their work and, before departing for the coast for the evenings of Friday and Saturday, they had returned to their unit for around a two-hour window.
3 Owners Corporation Rules, rule 32 (n) The applicant discovered the motorbike was missing on their return to Canberra from the coast, sometime on Sunday 12 January 2025. They reported it as stolen to the police on that day at 10:19 am. (o) Between 12 and 15 January 2025, the applicant requested Mr Gowen search CCTV footage of the garage to see if there was evidence of the motorbike theft. (p) On 30 January 2025, Mr Gowen advised the applicant that they had completed the search up to 9:00 am on Friday 10 January and they had not detected anything. They inquired whether the applicant wanted the further search for the period to 12 January 2025 done, noting that it would be charged at $210 per hour with an estimate of 10-20 hours to review. The applicant invited Mr Gowen to discuss that with the police. Mr Gowen declined to do so advising that they would let the police know that there was no footage to provide regarding the theft. (q) On 30 January 2025, Mr Gowen advised Constable Ballard, the AFP contact officer investigating the theft, in more or less the same terms as their advice to the applicant. 4 (r) On 8 February 2025, Constable Ballard advised Mr Gowen that: By not reviewing the CCTV footage and providing it to me if you can see the motorbike it is actually hindering a Police investigation as the investigation cannot be furthered without the footage. (s) They advised that “it was of high importance for us to obtain CCTV footage where high value thefts and burglaries occur so as to identify and charge what are often recidivist offenders”. They also said that they understood that Mr Gowen “may not wish to provide CCTV footage to individual residents as it would take a significant amount of time to match every request for a building of this size” but clarified their request for review of the footage for the motorbike. They noted “the vast majority of building managers and security companies will go above and beyond to assist us 5 with these requests.”
4 Email sent from Constable Ballard to Troy Gowen dated 8 February 2025 5 Email sent from Constable Ballard to Troy Gowen dated 8 February 2025 (t) On 10 February 2025, Mr Gowen advised Constable Ballard that “I will begin reviewing the footage today, it is going to take some time to get 6 through it all and if I find anything I will let you know.” (u) On 7 March 2025, Mr Gowen advised Constable Ballard that they had “finished reviewing the CCTV footage for the stolen motorbike and 7 unfortunately I have not found anything that shows the bike being stolen.” Additional findings
Having regard to the evidence of the applicant and Mr Gowen at the hearing I also find: (a) Generally, including at the unit complex or, for example, when parking their motorbike in a public carpark whilst shopping, the applicant secured their motorbike by steering lock and key activated ignition. (b) Access to the unit complex ground floor from the garage basement floors does not require a security fob.
Whilst there was initially some contention about when, and by what means, the applicant had become aware of the fault in the garage roller door and aware of the measures that the respondents took in response, nothing was made of it at the hearing.
The parties made their cases, in relation to the first alleged negligence, by reference to the window for the theft being on Friday 10 January 2025 between 6:00 am, when the security guard departed the unit complex, and 9:42 am when the garage roller door was fixed. I have therefore considered the applicant’s allegation that the respondents breached their duty of care and caused the loss of the applicant’s motorbike (and the respondents’ case in response) framed against this window.
Negligence – three issues
6 Email sent from Troy Gowen to Constable Ballard dated 10 February 2025 7 Email sent from Troy Gowen to Constable Ballard dated 7 March 2025 (a) the respondents owed the applicant a duty of care; (b) the respondents breached that duty of care; and (c) the theft of the motorbike was a direct result of the respondents’ breach of duty. Duty of care
No duty of care to prevent harm from third party actions unless special relationship or control of the wrongdoer
There is also no dispute that, at least, the second respondent has a duty to take reasonable steps to prevent foreseeable harm arising from their obligation to 8 manage property. This is referred to as ‘occupier’s liability’.
That is not, however, the end, or indeed the purpose, of the Tribunal’s inquiry. The applicant’s alleged harm arises from the criminal acts of a third party. It is well established that an occupier owes a duty of care to prevent harm caused by the criminal acts of third parties only if there is a special relationship between 9 them and the injured party or that they have control over the wrongdoer.
In the leading authority, Modbury Triangle Shopping Centre Pty Limited v Anzil [2000] HCA 61 (Modbury), the High Court allowed the shopping centre’s appeal from being found liable for injuries sustained by the manager of a video shop when attacked by three assailants. The breach of duty found by the lower court was that the shopping centre had turned off the carpark lights at 10:00 pm and the attack occurred, after the victim had finished work, at 11:00 pm. The High Court held that the shopping centre did not have a duty of care to prevent the criminal conduct of the third parties.
8 Civil Law (Wrongs) Act, section 160 see also Proprietors of Strata Plan 17226 v Drakulic [2002] 55 NSWLR 659 per Heydon JA at [92] 9 Modbury Triangle Shopping Centre Pty Limited v Anzil [2000] HCA 61
Further, the New South Wales Court of Appeal in Proprietors of Strata Plan 17226 v Drakulic [2002] NSWCA 381 (Drakulic) confirmed that an occupier and/or manager of a unit complex is not generally liable for harm caused by a third party where there is no relationship attracting that duty. The Court of Appeal observed: It is plain that the relationship of unit owner and body corporate, and the relationship of unit owner and manager, are not relationships of the type 10 recognised as ‘special’ under the existing case law.
The Court of Appeal allowed the owners corporation’s appeal, deciding that they were not liable to compensate an occupant for injuries sustained in an assault in the unit complex’s foyer to which the assailant had gained entry via an entry door which had been left unlocked by the owners corporation/building manager.
I understood that the applicant did not say that theirs was a case of a special relationship with either of the respondents. To the extent that they may have maintained that theirs was a special relationship, it must fail. It is not a basis on which the law recognises that either respondent assumes the relevant duty of care. It is not for the Tribunal to pronounce a new category of special relationship. It is 11 a matter for the High Court.
The applicant also clarified that they did not allege that the respondents had control over the person who stole their motorbike.
Duty of care – reliance, assumption of responsibility
10 Drakulic at [87] per Heydon JA (as he then was). See also Modbury at [13] and [26]. 11 Drakulic at [89] 12 Modbury at [23]-[28] 13 Modbury at [22] Applicant’s contentions – existence of duty of care – assumption of responsibility
I understood that the applicant’s case is that a duty of care arose because the respondents assumed responsibility for protecting the applicant’s goods. Or that they relied on the second respondent’s actions, contracted to the first respondent, to control the security of the garage.
The second respondent installed CCTV cameras, signage warning of surveillance and restricted access via a fob activated garage roller door. They, by the first respondent, engaged the security guard on the night that the garage roller door remained broken. The respondents therefore assumed responsibility for the security of the unit complex. The applicant also relied on it. And the engagement of a security guard would reasonably be understood as confirmation that the risk was actively managed.
Further, I understood the applicant to say that their reliance was complete when, between arriving home on the evening of Thursday 9 January and departing for work on the morning of Friday 10 January 2025, they did not have an opportunity to take their own additional security measures to prevent theft of their motorbike. There was also insufficient time, between arriving home from work on Friday 10 January 2025 and departing for the coast for the weekend.
Accordingly, the applicant said that the respondents had a duty of care to the applicant to protect the motorbike from theft.
Second respondent’s contentions – denial of assumption of responsibility or that applicant relied on them
First respondent’s contentions – denial of duty of care because they are the second respondent’s agent
The first respondent submitted that a duty of care was excluded from applying because they were contractually engaged as the second respondent’s agent. Everything they did was attributable to the second respondent.
I was not referred to, nor was I able to find, any authority in support of the proposition that an agent has no relevant duty of care because their acts are attributable to the principal. Case law is primarily concerned with the liability of 14 a principal in an agency because the agent’s acts are attributed to the principal. And, if by their acts the agent has breached the duty, each of the principal and the agent is primarily liable to the person to whom the duty was owed and who suffered loss.
The High Court in considering whether a principal is liable for the actions of an agent has said “words like ‘agent’ and ‘representative’ might begin an inquiry about the possible liability of the defendant for actions of the wrongdoer but they 15 are not the end of the inquiry”. The Court referred to the summary in Sweeney 16 v Boylan Nominees Pty Ltd of their decision in Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia 17 Ltd (Colonial Mutual Life). In Colonial Mutual Life the company that engaged an agent (albeit an independent contractor) to solicit for the creation of legal relationships between the company and others was liable for slanders uttered in the course of soliciting proposals. The company’s liability depended “directly upon the identification of the independent contractor as the principal's agent (properly so called) and the recognition that the conduct of which complaint [was]
14 See, for example, Bird v DP (a Pseudonym) [2024] HCA 41 ( Bird) and the cases there referred to 15 Bird at [32] per Gageler CJ, Gordon, Edelman, Stewart and Beech-Jones JJ 16 [2006] HCA 19 17 [1931] HCA 53 made was conduct undertaken in the course of, and for the purpose of, executing 18 that agency”.
There was no evidence before the Tribunal on which to decide whether there was an agency relationship between the respondents.
The Unit Titles (Management) Act is also silent on the alleged relationship of agency. I note, however, that section 19(1)(b) provides that the owners corporation holds common property as agent for the unit owners as tenants in common in shares proportional to their unit entitlement. The first respondent provides service contractor services and is a ‘service contractor’ for the purposes of that Act, being a person that has entered into a service contract with the second 19 respondent.
Nevertheless, I have not considered it necessary to separately consider the first respondent’s reliance on being the second respondent’s agent engaged to carry out its function to exclude their duty of care. Applying the Court’s reasoning in Drakulic, I have considered the existence of the respondents’ duty of care as coterminous. And I am satisfied that when considered in this way, I resolve the issue of whether a duty of care relevantly existed.
Consideration – existence of duty of care – assumption of responsibility
I note that the mere fact of statutory responsibility for managing the unit complex is insufficient to impose that duty.
In any event, it is true that the relevant measures that the respondents took, to which the applicant refers (at [36] above), were to maintain the security of the garage/unit complex. The presence of the security guard overnight during the period the garage roller door was broken was taken in recognition that, without additional precautions, it reduced the security of the unit complex. The respondents exercised their capacity to decide when and to what extent the unit complex would be secured whilst the garage roller door remained broken. That
18 Bird at [33] 19 Unit Titles (Management) Act, ss 59 and 60 the other parts of the building were accessible from the garage without a fob makes this pertinent.
This gives the appearance that the respondents assumed the kind of responsibility which would found a duty of care. The installation of the security guard, in particular, arguably distinguishes the circumstances from those in Modbury and Drakulic. In each of those cases, the persons said to assume the duty of care took no positive steps to security: the carpark was illuminated according to Modbury’s own discretion and the door to the complex was not fixed. Each plaintiff knew that the measures were not taken.
In contrast, here, the respondents assumed responsibility for both fixing the garage roller door and protecting the complex whilst the door remained broken overnight. And it was apparent to the applicant that the respondents had taken 20 these measures.
The alternative, equally reasonable, characterisation of the respondents’ actions is that they were continuing their function of securing access to the complex via the garage. In lieu of the functioning roller door accessible by fob, the respondents secured access by arranging for the door to be fixed and installing a guard overnight. The only difference was a different set of measures, dictated by circumstances. They were not, in so doing, assuming any responsibility to protect the third parties’ possessions (the applicant’s motorbike) from theft.
The arguments appear finely balanced.
Resolution is aided by returning to the fundamentals set out in Modbury. Chief Justice Gleeson observed in relation to an argument that Modbury assumed responsibility for illumination of the carpark and this founded a duty of care, the issue is whether the kind of responsibility asserted by the applicant is one of 21 capacity and obligation.
Indeed, Gleeson CJ clarified that the correct question for characterisation of what the respondents here did is whether the respondents assumed an obligation to care
20 Drakulic at [84]. 21 Modbury at [23] - [25] for the security of the belongings of persons in the position of the applicant by protecting them from theft by a third party.
The inclusion in the relevant aspect of the judgment of Gleeson CJ of an excerpt of Mason J’s judgment in Kondis v State Transport Authority [1984] HCA 61 is also salient. Justice Mason referred to Meyers v Easton (1878) 4 VLR 283 in which the landlord who undertook to renew the roof of the house ‘was seen as impliedly carrying with it an undertaking to take reasonable care to prevent 22 damage to the tenant’s property’. In dismissing the victim’s argument that Modbury assumed the obligation for illumination of the carpark, Mason J also noted Gummow J’s observation in Hill v Van Erp [1997] HCA 9 of ‘the imprecise and beguiling but deceptively simple terms ‘known reliance’ and ‘assumption of 23 responsibility’.
On balance, I am satisfied that by meeting the threat posed by the broken garage roller door to the security of the building with measures to remediate that threat, the respondents continued to exercise the same function of securing the garage complex as they had when that garage roller door was functioning. They chose measures appropriate to the circumstances. They exercised their capacity to secure the carpark. The respondents’ actions are not akin to the landlord in Meyers v Easton agreeing to renew the roof. They are akin to Modbury’s capacity to decide when the lights would be on and when they would be off. The evidence is not sufficient to establish that, by the relevant measures in place in the critical period, the respondents undertook the care, supervision or control of the applicant’s property as to assume a particular responsibility of obligation for its security. No duty of care arises.
Additional reasons to deny the existence of the duty of care are that the second respondent’s rules were agnostic to the circumstances in which a thief might access the unit complex and a theft occur. They put the applicant on notice of the possibility that persons other than bona fide occupiers may access the unit complex: they assume insecure storage areas and parking spaces by imposing
22 Kondis v State Transport Authority [1984] HCA 61 at [33] 23 Hill v Van Erp [1997] HCA 9 at 229 obligations on owners and occupiers; owners and occupiers are responsible for insuring their own contents; and unit owners and occupiers are requested to take 24 reasonable care to ensure that access is only available to bona fide occupiers.
I momentarily digress to address another argument raised by the applicant. I do not agree with the applicant that the express recognition of the risk of theft in the rules has the effect that, because it anticipates theft, the harm was reasonably foreseeable and a duty arises. Such a conclusion would elevate the effect of the rules beyond the work that they were intended to, and actually, do. The rules and terms of the residential tenancy agreement are a warning to occupants that they have responsibility for the protection of their own goods and to take care for them or risk their loss. There is no admission, by the rules, that the second respondent foresaw that their conduct (or omission of conduct) could result in injury to an occupant.
Finally, the residential tenancy agreement also obliged the applicant to insure their own personal contents including vehicles. It excludes the lessor from liability for any theft or damage to the applicant’s property.
Whether the garage roller door was broken or was functional and accessible by a fob, the respondents did not assume an obligation to care for the security of occupants’ property by protecting them from third parties’ actions.
Consideration – existence of duty of care – reliance
24 Rule 23.2 and rule 32(d) - (e) of the rules of the owners corporation to which owners and occupiers bound by section 107 of the Unit Titles (Management) Act 2011
There is an inherent tension for the Tribunal in assessing the applicant’s argument. It is in the applicant’s interests in making their case before the Tribunal to recall their motivations in this way.
Although there is some attraction in the applicant’s submission, pointing to various factors in support, of reliance on the respondents, it does not withstand the scrutiny of an objective analysis of the facts.
First, the applicant was, from their arrival into the unit complex on the evening of 9 January 2025, aware that the garage roller door was broken and of the measures, the installation of the security guard, in place to deal with it. This is akin to the circumstances in Drakulic in which the Court also dismissed, as an alleged source of duty, the assault victim’s reliance on the owners corporation to ensure that the foyer door was locked. The victim was aware that the foyer door 25 was defective and that it was not locked.
Second, it is true that, noting its primary purpose is creating a record of theft to aid detection, the presence of CCTV may also contribute to deter thieves. But it would not be reasonable to expect that it would serve to guarantee protection from theft at all. Among other things, thieves may assume the risk of detection, or they may disable the cameras; the four relevant cameras (none of which faced the 26 applicant’s parking space) may or may not detect the relevant activity; the system may malfunction; or the recording may not be clear. It is also not, as the
25 Drakulic at [82] 26 The first respondent, in particular, noted the possibility that the motorbike was taken out of the unit complex via the elevator to which fob access was not required applicant asserts, with the signage notifying its presence along with an access-controlled door, a complete solution.
Constable Ballard’s 24 February 2025 email to the applicant recognises the fallibility of CCTV as a security measure: “Unfortunately, on some occasions a result isn’t just returned . . .”.
Mr Jarrod Smith, Group General Manager for the first respondent also noted in his 27 March 2025 email to the applicant: “CCTV is effective in a lot of respects but certainly is not the complete solution.”
The applicant themselves noted in their 26 March 2025 response to Mr Smith about the first respondent’s explanation about the absence of relevant CCTV footage that they understood “the difficulty of searching the footage when there is no camera facing the carpark where the bike was stolen”. They impliedly accepted CCTV systems are not uniform in their capacity by their question of “the actual effectiveness of the CCTV system being used”.
Third, the security measures that the applicant took for their motorbike were the same regardless of where it was being parked. Whether with a functioning garage roller door accessible only by fob or a broken one and the presence of a security guard, the measures that the applicant took to secure their motorbike were no different to those that they assumed when parking in an insecure public parking space. That the applicant used the public space, the local shopping centre parking space, for a fraction of the time that they used the garage at the unit complex does not undermine the significance of the consistent behaviour. Objectively assessed, their security measures were not a function of, or reliant on, place or what another did, particularly what was in place at the unit complex or what the respondents did.
Fourth, whether the garage was secured with access by fob or a security guard who kept watch over a broken garage roller door, there were clear indicators that the applicant could not rely on the respondents to ensure that the security measures were effective to prevent theft.
Those included the rules which made it clear to occupants that the obligation to manage the unit complex did not give the second respondent the ‘exclusive right to make measures for the safety and security of’ occupants and their lawful 27 guests. That was within the occupants’ capabilities.
Accordingly, I am not persuaded that the respondent owed the applicant a duty of care to prevent the theft of the motorbike because of the latter’s reliance on the former.
Modbury – does predictability of criminal conduct imposes a duty to take reasonable steps to prevent it? 28 29
In Modbury both Gleeson CJ or Hayne J expressly declined to decide whether a high degree of foreseeability of harm suffices for the recognition of a duty of care.
Even if such foreseeability was the basis for the creation of a duty, there was no evidence before the Tribunal of thefts in the unit complex and its vicinity on which to form a view about whether there was such a ‘high degree’ of 30 foreseeability.
No duty of care through the ‘general law of occupiers’ liability’
27 Modbury at [22] per Gleeson CJ and see Drakulic at [82] 28 Modbury at [30] 29 Modbury at [117] 30 Drakulic at [92] 31 and it must fail.” Again, like the circumstances in Drakulic, the alleged deficiency in the security of the carpark in this matter is not equivalent to some sort of deficiency in the surface of the carpark.
Smith v Owners Corporation – Units Plan 3115 [2021] ACAT 28
The applicant referred to the Tribunal’s decision in Smith v Owners Corporation – Units Plan 3115 [2021] ACAT 28 (Smith) in support of their application. The Tribunal found that, because they were negligent, the respondent owners corporation was liable to compensate the applicant for the value of their bicycle which was stolen from the respondent’s complex. As a single member decision of the Tribunal, Smith is not binding on other members of the Tribunal. It remains, however, an authority for the Tribunal to consider.
It would be a strain to read that case as a decision imposing a duty on an owners corporation to take reasonable care to prevent third parties stealing residents’ goods, absent a special relationship or capacity to control a wrong doer. To the extent, however, that it may so be read, it should be confined to its own facts.
Further, in Smith, the owners corporation effectively created the circumstances in which the applicant’s bike was stolen, contributing to the applicant’s vulnerability. The owners corporation was required to carry out rectification works to the relevant building that would disrupt parking of at least 12 units. The corporation was on notice of the applicant not being able to access their lockable cage to store their bike. They did not plan for safely managing parking during the rectification works, including because the applicant was unable to access the lockable cage to store his bicycle.
In contrast, however, the matter before the Tribunal involves circumstances which were not of the second respondent’s own making. The opportunity for theft was created by the opportunistic actions of a third party (damaging the garage
31 Drakulic at [117] roller door). The second respondent responded to those actions. The theft was itself another opportunistic act of a third party.
Other cases on which the applicant relied
The applicant also referred the Tribunal to three additional authorities, none of which are relevant because they are not concerned with the interfering acts of third-party criminals. In Castro v Owners of Units Plan No 246 [2016] ACAT 111 the Tribunal was concerned with the respondent’s accepted duty of care to maintain common property. In Kirk v The Owners Units Plan No 2922 [2017] ACAT 102 (Kirk) the recognised duty was to take reasonable care to prevent reasonably foreseeable risks of damage including damage to personal property. McElwaine v The Owners – Strata Plan No 75975 [2017] NSWCA 239 referred to in Kirk confirms that an owner has a right to claim damages in nuisance against an owners corporation.
Accordingly, I am not satisfied that the respondents owed the applicant a duty of care to protect them from the theft of their goods by a third party.
If I am wrong, however, and the respondents did have the relevant duty of care, in deference to the extensive submissions made by the parties on the question of breach of duty, I turn to address it.
Breach of duty
Section 43 of the Wrongs Act provides that a person is not negligent in failing to take precautions against a risk of harm unless: (a) The risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); (b) The risk was not insignificant; and (c) In the circumstances, a reasonable person in the person’s position would have taken those precautions.
In deciding whether a reasonable person would have taken precautions against a risk of harm, section 43(2) of the Wrongs Act requires the Tribunal to consider the following (among other things): (a) The probability that the harm would happen if precautions were not taken; (b) The likely seriousness of the harm; (c) The burden of taking precautions to avoid the risk of harm; and (d) The social utility of the activity creating the risk of harm.
Consideration
There was no dispute that the risk of theft was foreseeable.
I am satisfied that, when the garage roller door was functioning, by the following actions, the respondents did not fail to take reasonable precautions that a reasonable person in their position would have taken against the reasonably foreseeable risk of theft from the garage: (a) The second respondent’s rules appropriately and sufficiently warned occupants to take care of their goods to reduce the risk of theft; (b) The garage roller door was accessible only by fob (noting that this does not preclude access by ‘tail-gating’); and (c) CCTV was installed with four relevant operating cameras, signs included a warning that ‘CCTV used in this area’ and footage was preserved at least for sufficient time, after a theft discovery, to allow a request to be made to review it. There was no evidence that the four relevant operating cameras were insufficient.
There does not seem to be any issue that during the period when the garage roller door was broken until 6:00 am on 10 January 2025, by the following additional actions, the respondents took every reasonable step that a reasonable person would have taken:
(a) Immediate engagement of a third party to fix the garage roller door with finalisation just over 24 hours from its discovery; (b) Engagement of a security guard overnight of Thursday 9 January 2025 whilst the door remained broken; the guard was stationed at the top of the driveway with requirements for periodic walk through of the carpark; and (c) Notification to all occupants via the established means for communication, the BuildingLink platform.
However, the applicant argues that the departure of the security guard from the unit complex at 6:00 am and before the arrival of Mr Gowen at 7:00 am and, additionally, before the garage roller door was fixed at 9:42 am falls short of the standard required of a reasonable owners corporation and strata manager. For the period from 7:00 am to 9:42 am, although present at the building, Mr Gowen was not performing one of his core functions.
Mr Gowen said the times that the security guard was engaged were chosen as “this would cover when residents were getting home from work as well the overnight period when the building would be at its quietest. The finish time was chosen as I would be arriving for work at 7 am to begin my shift at the Building.” 32
Mr Gowen did not say that the fact of it being daylight at security guard departure influenced the decision to terminate the guard at 6:00 am. However, the first respondent submits it was a consideration for it and the second respondent. The likelihood of theft was greater between 6:00 pm and 6:00 am. A search engine search reveals that GeoScience Australia recorded that the sun rose at 5:23 am on 33 the morning of 10 January 2025.
At least the garage being freely accessible for the hour between 6:00 am and 7:00 am on 10 January 2025 is a weighty consideration in favour of a finding of breach of duty.
On balance, however, having regard to Mr Gowen’s evidence and the existence of daylight hours at the departure of the security guard, I am not satisfied that the
32 Undated witness statement of Mr Gowen at [16]. 33 GeoScience Australia, Sunrise, Sunset and Twilight Times (Web Page, 22 June 2026) <https://geodesyapps.ga.gov.au/sunrise\> decision about the hours of engagement, coupled with the other measures referred to at [87], falls short of what a reasonable person in the position of the respondents would do. Whilst accepting that Mr Gowen’s core functions are not security, there is no evidence that they were not sufficient for the task. And the issue is whether the respondents’ actions are within a range of reasonable responses; an impregnability is not what is required.
Turning to consider section 43(2)(c) and (d) of the Civil Law (Wrongs) Act, it is possible to imagine additional precautions that could, as the second respondent submitted, have been taken. For example, constant surveillance by a security guard instructed to only allow those with appropriate identification access to the garage or, enhanced security infrastructure. They would come with a necessary additional expense and operational burden including for occupants. I agree with the second respondent that those measures would be disproportionate to the seriousness of the harm. Among other things, the risk of theft persists regardless of whether the garage roller door functioned.
If I am wrong and the respondents did breach a lawfully imposed duty of care, again in deference to the parties’ submissions, I turn to consider whether that breach was a necessary condition of the theft.
Causation
Section 45(1) of the Wrongs Act requires the applicant to demonstrate that: (a) The alleged breach was a necessary condition of the harm; and (b) It is appropriate for the scope of the negligent person’s liability to extend to the harm caused.
There is no evidence that the theft occurred in the window on which the applicant makes their case. It may well have occurred when the door was functional. It may have occurred when the security guard was stationed at the top of the driveway. The evidential gap means that causation cannot be proved on the balance of probabilities. The applicant is unable to establish that ‘but for’ the respondent’s breach of duty during the period from 6:00 am to 9:42 am on 10 January 2025, their motorbike would not have been stolen.
If we assume a breach of duty is established between the evening of 9 January 2025 to the time on 12 January 2025 when the applicant discovered the theft, there are multiple acts which could have led to the theft. Those acts include the applicant’s own assumption of risk in parking their motorbike wherever that might be and the work of the thief. The theft could well have occurred ‘but for’ the second respondent’s breach of duty. That breach was not therefore necessary for the theft.
It is not necessary to consider the application of section 45(1)(b) of the Wrongs Act.
I therefore find that, assuming a relevant duty of care, the respondents were not negligent in protecting the applicant’s motorbike from theft.
CCTV footage
The second claim made by the applicant is that the respondents were negligent in their handling of the applicant’s request for review of the CCTV footage over the period 9 January to 12 January 2025. The respondents had a duty of care to diligently review the CCTV footage so that the police would, with footage evidence of the theft, investigate it. No evidence on the footage meant that a police investigation of the vehicle theft was closed. The applicant was therefore denied the 49% success rate of solving vehicle thefts that comes with a police 34 investigation. I note that I agree with the applicant that it is not relevant to consider whether the CCTV footage was common property or a record.
The applicant’s claim of breach of duty is by reference to the acts of the first respondent as follows. I address that claim first; if I find that the first respondent is not negligent it precludes any consideration of the applicant’s case against the second respondent:
34 2019/20 National Motor Vehicle Theft Reduction Council report. The respondents did not dispute the report’s application. (a) The police investigation was concluded prematurely, on 2 February 2025, because the applicant had advised the police that there was nothing available on CCTV footage for 9 January 2025 and they would not, until payment of a relevant fee, review it for the balance of the period to 12 January 2025.
(b) The premature conclusion of the investigation was a function of the requirement Mr Gowen imposed for the applicant to pay to them a fee of up to $4,200 to review the balance of the CCTV footage to 12 January 2025. This was inconsistent with the obligations on the first respondent imposed by the Privacy Act 1988.
(c) The failure to find on the footage anything related to the theft of the motorbike evidences a failure to review it diligently. It would have been necessary for the motorbike to pass through the field of vision of at least one camera in the garage. Footage of the theft is likely to exist.
(d) And, against the submission that footage of the theft is likely to have existed, its permanent deletion contributed to the applicant’s inability to successfully pursue an investigation of the theft with the involvement of the police. There was no opportunity for the investigation to have been re-opened.
There is no dispute that the first respondent owed the applicant a duty to take care to review the relevant CCTV footage to not contribute to the failure to secure the return of the motorbike.
The issue is whether the first respondent breached that duty of care.
Before turning to address each of the applicant’s allegations, I first note that I did not understand the applicant to say that any alleged delay contributed to the failure to secure their motorbike. Even if they did so, as noted additionally below, there was no evidence before the Tribunal in support. Premature finalisation of police investigation
It is true that Constable Ballard recorded on 2 February 2025 that “matter for finalisation, no avenue for enquiry”. This was after noting the fee request and that “complainant not able to pay fee and not willing to waive for ACTP”. This is consistent with Mr Gowen’s 30 January 2025 email to Constable Ballard. However, by her 8 February 2025 email to Mr Gowen, Constable Ballard clarified that the request was being made for a police investigation. On 10 February 2025, Mr Gowen commenced review of the balance of the footage after 9 January to 12 January 2025. A complete review of the footage was finalised on 7 March 2025.
The evidence before the Tribunal contradicts the applicant’s assertion that the CCTV footage review was prematurely finalised. There cannot be loss consequential on something that did not happen, the alleged premature finalisation of the investigation.
To the extent that the applicant’s allegation is that there was a delay in finalising the review, there is no evidence that it contributed to the failure to solve the theft. For example, Constable Ballard did not advise Mr Gowen that the time they were taking to carry out the review compromised the police investigation.
Demand for payment of up to $4,200 to review the footage
At least by its excess over the value of the stolen motorbike, the size of the requested payment for Mr Gowen to review the footage appears oppressive. It is certainly what Constable Ballard reflected in her 8 February 2025 email to Mr Goweb: “$210 per hour is an excessive fee to review footage . . .” They also said that it “seems a bit harsh to charge a fee to the resident” and noted that ‘The vast majority of building managers and security companies will go above and beyond to assist us with these requests ...”
Mr Gowen also conceded, at the hearing, that he learned of means by which he could improve his efficiency of review.
Nevertheless, I accept Mr Gowen’s evidence that they considered that as the request for review was made by a tenant at the unit complex and was not at the direction of the second respondent, it was not appropriate to charge the second respondent. As reflected in Constable Ballard’s same email to Mr Gowen, at least to some extent, the request for payment reflects the demands of a business managing a unit complex of the size of the one under consideration. Constable Ballard said that they could “understand you may not wish to provide CCTV footage to individual residents as it would take a significant amount of time to match every request for a building this size . . .”. In Mr Smith’s 27 March 2025 email to the applicant, after describing the process by which the building manager carried out such tasks and the body responsible for payment, Mr Smith said that “this is very typical when something like this occurs”.
Further, following Constable Ballard’s email on 8 February 2025, Mr Gowen did not persist with the request that the applicant pay the relevant amount.
As the request was not made under the Privacy Act 1988, I am unable to see its relevance in supporting the applicant’s case. In any event, I understood that the first respondent acted consistently with it by not maintaining the request for a fee.
Again, there cannot be loss consequential on something that did not materialise, the requirement to pay the fee for Mr Gowen to carry out the CCTV footage review.
Mr Gowen’s conduct of the review of the CCTV footage
It is true that, at hearing, Mr Gowen mentioned that he had sought the assistance of another in advising how he might reduce the time necessary to carry out the CCTV footage review. Whilst suggesting an initial level of naivety in the exercise of the task, it falls short of demonstrating Mr Gowen did not diligently apply himself. I understood that the concession was that Mr Gowen was able to improve their efficiency in carrying out the review.
There is no other evidence supporting that Mr Gowen did not carry out the review exercising the appropriate level of care. In his witness statement Mr Gowen said: My process for viewing the footage was I sat at my desk with the CCTV footage playing through NX Witness software that I access via my laptop. I watched all of the footage. ... As there were four cameras that gave a possible view of the applicant’s motorbike being stolen, I had to watch each camera individually for the period requested to be able to see clearly any possible evidence of the theft. As the cameras did not directly point at the applicant’s parking space, I was looking for any sign of the motorbike being removed from the allocated parking space and any sign of the motorbike being removed from the premises.
Further, the fact of failure to find anything relevant on the CCTV footage begs the question of failure to exercise reasonable care.
It is easy to empathise with the applicant’s view that the failure is “quite 35 frustrating” and to tend to a suspicion “that it is clearly available just not found”.
The suspicion is, however, insufficient to satisfy the applicant’s obligation to demonstrate a failure to exercise due care on the balance of probabilities. There is insufficient evidence in support. It is also pertinent, that both Constable Ballard and Mr Smith’s emails of 24 February 2025 and 27 March 2025 (see above at [65] and [66]), respectively suggest that the failure to find relevant information is not unexpected.
Overwrite of the CCTV footage for 9 January to 12 January 2025
Mr Gowen said that they understood Constable Ballard’s 7 March 2025 email thanking them for their assistance to mean that the first respondent’s “involvement in the matter was complete”. The police did not request the footage was preserved. The applicant did not also request its preservation. Because they had not found any relevant information, Mr Gowen took the view that that they had no cause to preserve the footage.
The conflicting implications of the fact of failure to find any relevant footage, in the face of evidence that the motorbike had been stolen, for footage preservation are finely balanced. On the one hand, the complete absence of footage of the theft might suggest that there remains an opportunity to discover the theft by carrying out another review. On this view, the footage should therefore be preserved.
35 The applicant’s email of 26 March 2025 to Mr Smith
On the other hand, no relevant information after a reasonably lengthy footage review, might suggest that any chance of theft discovery was, at best, slim. On this view, the footage was not required to be preserved.
The balance is tipped by the absence of any other evidence or compelling reasonable hypothesis before the Tribunal that the footage was required to be stored beyond the usual period for which the relevant system retained it. Accordingly, I find that the applicant’s allegation of breach of duty for failure to preserve the CCTV footage must fail. It is not necessary to separately consider implications for the second respondent.
Causation
If I am wrong and the first respondent did breach the duty of care to view the CCTV footage, the application of the 49% success rate for a police investigation of a theft supports the applicant’s loss being attributable to that breach by 49%. I do not translate that into a compensable dollar value because I have decided that there has been no relevant breach of duty of care.
Accordingly, I dismiss the application.
Order 1. The application is dismissed.
……………………………….. Senior Member J Francis
Date of hearing: 11 May 2026 Applicant: In Person Counsel for the First Respondent: Mr Game Solicitors for the First Respondent: Thomsons Counsel for the Second Respondent: Mr Develin Solicitors for the Second Respondent: Clayton Utz
SCHMIDT
VANTAGE STRATA PTY LIMITED & ANOR (Civil Dispute)