"46. An owners corporation must repair and maintain-

(a) the common property; and

• (b) the chattels, fixtures, fittings and services related to the common property or its enjoyment."

1. The Applicant claimed that the first respondent has breached a duty under section 122 of the Act to perform its functions with due care and diligence. Section 122 relevantly provides:

(a) must act honestly and in good faith in the performance of the manager's functions; and

(b) must exercise due care and diligence in the performance of the manager's functions;...".

1. The applicant's claim was based on the assumption that the duties under section 46 and section 122 were owed to the lot owners. In my view, section 46 imposes a statutory duty of care on the owners corporation, so that it may be liable for any loss or damage caused to a lot owner by its failure to carry out that duty. The manager's duty is to carry out its functions with due care and diligence. Similarly, a breach of that duty would expose the manager to liability for loss and damage caused to a lot owner by the breach. In order to succeed in most of its claim, the applicant company needed to show that either the owners corporation or the manager (or each of them) had breached its duty and that the breach had caused loss or damage to the applicant.
2. There were three elements to the Applicant's claim against the Respondents. First the applicant sought $1050 for cleaning it had conducted on the common property. Secondly, the applicant sought a total of $8675 as compensation for losses suffered in a flood in February 2011. Thirdly, it sought a refund of its contribution to fees for the upkeep and maintenance of the property over the last seven years, which amounted to $1197.28.

1. Common property surrounds the Applicant's lot on two sides and part of a third side. The applicant's lot is at a back corner of the site. It shares some walls with other lots. At the back, there is a narrow strip of common property and a fence on the back boundary. The applicant's lot is approached down a side driveway on the site, past three other lots. The fence on that side of the site faces a neighbouring factory.
2. Mr Nizar Bou Houssein, director of the applicant company, gave evidence for the applicant. The company operates a business as a shopfitter and cabinet-maker and prepares its fittings at the applicant's lot.
3. Mr Bou Houssein said that he has been dissatisfied with the upkeep and maintenance of the common property near his company's factory, for the last seven years. He said that he has raised his concerns with various employees of VBCS, which has been the manager all that time, mostly by phone or email and has received little response. Mr Bou Hussein gave considerable oral evidence as background to his claim. He said he was unable to provide the emails he had sent because he lost his computer. Much of this evidence was unchallenged, in part because the only evidence led by the respondents was from Mr. John Campbell, the current VBCS manager, who has only been in his job since early 2011.
4. Overall, the applicant's evidence gave a strong impression that Mr Bou Houssein has been dissatisfied with the manager's performance and has raised that with the manager over some years. There was no evidence that he had raised the issue formally with the other lot owners, for example by means of a proposed resolution for the owners corporation to consider. While the general impression created by Mr Bou Houssein's evidence was that the common property near his unit has not been very well cared for, his specific evidence about his claims against the owners corporation and the manager had to be tested against their duties.
5. Mr Bou Hussein also said he has been concerned that the neighbouring factory at the side of his property (but not part of this owners corporation) causes mess and hinders his business, by blowing a great deal of sand, much of which lands on or near the common property adjacent to the applicant's unit. He said he has asked the VBCS representative to take some action about this at various times over the last seven years, but the manager has done nothing.
6. Further, Mr Bou Hussein said that in 2007 he attempted to sell his unit because of his dissatisfaction and was unable to do so because potential buyers were deterred by the mess. He produced evidence that a serious buyer had sought information from VBCS about cleaning up the common property but had received no response.
7. However, the applicant was not seeking orders that the owners corporation or manager take action about the sand and made no claim about the deterring of buyers. This evidence rather formed a background to the claim. His evidence is set out in more detail in relation to each of the applicant's claims.
8. Mr Bou Houssein also gave evidence that he does not attend meetings of the owners corporation. For some time the notices were going to an address which did not reach him. On one occasion more recently a representative attended on his behalf. In general, Mr Bou Houssein said that he talks to a neighbouring lot owner "Peter" about matters do do with the owners corporation.

1. Mr Bou Houssein gave evidence in support of the claim for $1050 for cleaning. He said that he first raised the issue six or seven years ago with the then manager "Anne". He said that he showed her photographs on his laptop depicting the mess on the common property and told her he had cleaned up much of the mess. He told her that this included cleaning up a great deal of sand generated from the next-door premises (not a lot owner in the same owners corporation, but a neighbouring factory). He also asked her to take action to require that neighbour to cease blowing sand on to his property. According to Mr Bou Houssein, Anne told him to send her an invoice for the cleaning he had done on the common property and "they" would pay it.
2. Mr Bou Houssein produced some documents in support of this oral evidence. He produced his letter to the owners corporation manager dated 9 October 2009 about the owners corporations fees and the sand emanating from the neighbour. It said in part: "We are prepared to contra your invoice's balance with the cost incurred by our company through the damages". He also produced a letter dated 3 February 2010, which said that the applicant would pay only part of the owners corporation fees then due and added: "the remaining balance of $1069.15 has been allocated against the expenses incurred by our company for the cleaning of the yard and entrance (please refer to attached invoice. Please also note that the situation is becoming very remarkable with more and more sand blowing from the neighbourhoods(sic)". Attached to that letter was an invoice for $1050 expressed to be for "cleaning of premises at unit 8, period July 2009 to January 2010 - 14 trips x 75 = $1050".
3. Mr Bou Houssein also produced another letter he had written to the owners corporation manager dated 5 May 2011, which stated that there were attached copies of the letters of 9 October 2009 and 3 February 2010 and which referred again to the cleaning invoice, this time saying "the member of your staff Anne had agreed to consider payment".
4. Mr Bou Houssein also said he had sent many other letters to the owners corporation (or the manager) about mess on the common property and sand emanating from the neighbour but had no copies of them because they had been lost from his computer. He said he had received no replies and no action had been taken.
5. Mr Campbell gave evidence for VBCS. He said he has been the responsible manager only since early 2011. He said he had searched the files and found no record that the owners corporation had authorised payment for the cleaning carried out by the applicant or that it had authorised the applicant to do any work. He was unable to give any evidence about what had happened before 2011.
6. The letter of 5 May 2011 from Mr. Bou Houssein himself to VBCS referred to "Anne's" undertaking to "consider payment". Mr Bou Houssein's oral evidence did not really contradict the language in his letter. He said that Anne had agreed to pay but was unable to say why his letter only said that she had agreed to consider payment. The applicant therefore did not establish that the manager had promised to pay for the work the applicant had done in cleaning up the premises. If there had been a contract between Mr Bou Houssein (or his company) and either the manager or the owners corporation for the applicant to be paid for work on the common property, that would be enforceable. However, the best evidence was that the manager would "consider payment". That was not a contract and there was no evidence to support the applicant's claim about this.
7. I did not doubt Mr Bou Houssein's evidence that the applicant had done the work for which it claimed payment. However, it appears that was voluntary. Nothing in the Act entitles a lot owner to be reimbursed for works done on the lot owner's own initiative to maintain the common property. If a lot owner wants the owners corporation (which is made up of all the lot owners) to pay for something to be done on the common property, the lot owner is able to make a proposal to the owners corporation and have it voted upon. That did not occur in this case. Since there was no contract with the owners corporation or its manager and no decision of the owners corporation to authorise the applicant to carry out works, neither the owners corporation nor the manager is obliged to pay the applicant company for the work it did on the common property.

1. Concerning the claim for $8675 for loss and damage suffered because of a flood in February 2011, Mr Bou Houssein said that his factory was flooded during a heavy downpour and was still flooded two days after the downpour. He also produced photographs taken at the same time outside his company's unit, towards the back, showing large puddles of water lying there. He also produced photographs taken in 2007, showing rubbish lying about at the side and back of his unit.
2. The applicant contended that the rubbish left lying about, together with weeds growing unchecked through the fence at the back of the applicant's unit, had prevented the water from running away from his property so that the flooding occurred. Mr Bou Houssein said that his photographs supported this conclusion. While I did not doubt Mr Bou Houssein's evidence that there was rubbish lying about, neither the photographs nor his oral evidence supported this conclusion. While it was his opinion that the rubbish caused or exacerbated the flooding, the evidence did not support that. The undated photographs showed water lying about but did not demonstrate that rubbish had prevented the water running away.
3. Mr Campbell gave evidence for the respondents that there had indeed been a substantial storm in February 2011. He said that he had observed that properties with adequate drainage and guttering were also affected by floods that day. I accepted Mr Campbell's evidence, as I had no reason to doubt it.
4. While the applicant's evidence showed that rubbish had been left lying around and that his factory had flooded, it did not tend to show that any omission or breach of duty by either respondent had caused or exacerbated the flooding. Put simply, the applicant did not prove that the respondents had done anything to cause the flooding or to worsen its effects.
5. The applicant claimed a total of $8675 for materials which were damaged in the flood and work which had been done on those materials in preparation for a shop fitting. However, since it has not been proved that the flooding was caused or exacerbated by any breach of duty by the owners corporation or by the manager, neither of them is liable for the applicant's loss.
6. At the hearing, there was some discussion of the need for guttering to be repaired. The applicant did not rely on the faulty guttering as a cause in his claim for loss and damage resulting from the flood. There was evidence that the owners corporation has now obtained a quote for repairs to the guttering and will proceed with a decision about his matter. Thus, although it was mentioned at the hearing I have not considered the guttering as relevant to the issue of the applicant's flood damage.
7. I note also for completeness that the applicant has not yet made any claim about flood damage with the owners corporation's insurer and this avenue may still be open to it, although I have no knowledge of the terms of the policy and cannot of course reach any conclusion about this issue.

1. The applicant also sought a refund of money paid by it as a lot owner over the last seven years for maintenance of the common property. The amount claimed was based on the annual budgets of the owners corporation. Each year, the owners corporation in its budget has allocated $1600 towards maintenance of the common property and has apparently employed a contractor to perform the work of tidying up and cutting back grass etc. Only one such budget was produced, but I accepted the applicant's contention that the same amount had been allocated in each of the last seven years. Since the applicant's lot liability is 10.69%, it claimed $1197, which is 10.69% of the amount paid for maintenance ($1600 x 7).
2. Mr Bou Houssein said that his company had received no benefit from that money, since the service of maintaining the common property had not been provided. As his legal representative put it, "nothing has happened".
3. There was some evidence that the manager had in the past written to other lot owners asking them to clean up their rubbish from the side driveway. There was also evidence that the grass near the applicant's unit has been cut recently. However, there was no real opposition to the applicant's evidence that it has not had much benefit from the fees paid for maintenance. However, the applicant has chosen the wrong route for solving the problem.
4. It appears that the money allocated each year by the owners corporation for maintenance has indeed been spent. If the applicant wanted to prevent the owners corporation spending that money, the applicant could have made a proposal to the owners corporation and had it voted upon. Each year, at its annual general meeting, it appears the corporation has voted to spend that money, leaving it in the manager's hands to arrange and pay for the maintenance. Even if the applicant had argued that it was excluded from meetings because the notices did not reach it, the applicant could have pursued the matter by proposing a resolution. The Act (and before that the relevant regulations under the Subdivision Act) provided for an annual general meeting and the applicant could have taken action to find out when the meeting was to be held and raised his concerns there, or proposed a postal resolution.
5. Now however, since the owners corporation has already spent that money and time has passed, the owners corporation may not be in a position to contest with its contractor the question of whether that work has been properly done. If the Tribunal orders the owners corporation to refund the money, the other lot owners would be required to contribute to that refund. Since they have never been asked to consider the issue (by a proposed resolution), there is no reason why they should now be at risk of having to contribute.
6. On the contrary, the proper view seems to be that since the owners corporation has voted each year to spend the money on maintenance of the common property, it is now too late for an individual lot owner to assert that he should not have to pay for maintenance because he is unhappy with the standard of work. The matter should have been raised with the owners corporation at the time. Accordingly, the claim for refund of fees as against the owners corporation fails.
7. The position of the manager in relation to this issue is different. Mr Bou Houssein said he had many times raised with the manager the fact that he was dissatisfied with the maintenance of the common property near his company's lot and had received little response. It would be usual for the manager to be delegated the responsibility for ensuring that any maintenance contractors do their job properly and it was assumed in the parties' evidence that this was the case here. Therefore, it is reasonable to ask whether the manager has breached its duty to ensure that the maintenance of the common property was done properly.
8. The applicant's evidence was supported by a series of colour photographs (only one copy was available at the hearing and was later provided to the Tribunal). Mr Bou Houssein said at the hearing that the dates on the photographs were the dates when he had taken them. Only some of the photographs were dated. Two photographs, both dated 5 June 2007, showed piles of material (20-gallon drums, metal, plastic boxes, a window frame, wooden pallets) down the side driveway of the property. Two other photographs of the same area, undated, showed it considerably improved but with the bush at the corner a bit overgrown.
9. In my view, a number of other lot owners could have complained about this accumulation of material, but have not done so it seems, perhaps because they were all somewhat at fault for leaving their discarded items in the driveway. Mr Bou Houssein agreed when cross-examined at the hearing that the manager had written to other owners and asked them to remove their rubbish and he agreed that for a while matters improved. This would be consistent with the photograph which showed the driveway in better condition, although I did not need to rely on that assumption. Therefore, it seems the manager had taken some action about cleaning up the driveway, albeit not sufficient to satisfy Mr Bou Houssein.
10. Another photograph, dated 22 March 2007, showed grass or weeds growing through the back fence of the property near the applicant's unit. Other undated photographs of that area appeared to relate to the flooding and I have considered them already. There was no evidence about exactly what works were to be performed for the $1600 per year spent on maintenance. It may be that the back part of the property was neglected because the owners corporation had neglected to ask a contractor to clean up the weeds or because the contractor was not asked to attend to the area with sufficient frequency.
11. Mr Bou Houssein said that he frequently contacted the manager asking for these areas to be attended to and I have no reason to doubt his evidence. He also said that he sometimes spoke to his neighbour "Peter" about these issues as Peter was in contact with the manager, but "Peter" was not called to give evidence.
12. Overall, there was insufficient evidence to establish that the manager had breached its duty to supervise the maintenance of the common property. While I had no reason to doubt Mr. Bou Houssein's evidence, there was no evidence about what had been the instructions of the owners corporation to the manager on these matters. For example, the manager may have discussed the issue with a committee and been told that the owners corporation did not wish to spend any more money on maintenance.
13. It was clear however that Mr Bou Houssein had not raised his concerns directly with the owners corporation. Had he done so, the other owners would have had to decide whether to change contractors or spend more money on maintenance or even to take action against the cleaner for neglecting to clear up near the applicant's unit.
14. I accepted the evidence given by Mr Campbell that if he receives a complaint about a matter such as the condition of the common property he would seek authorisation from the owners corporation itself before taking any action. It is reasonable to assume that the manager has approached matters in the same way before Mr Campbell was its representative for the site. Again, this indicates that the avenue for the applicant to solve the issue of his concern with the lack of maintenance was to take the issue up with his fellow lot owners by a formal proposal to the owners corporation of which they are all members. Mr Bou Houssein did not do so.
15. In all these circumstances, the applicant has not established that the manager breached any duty to it and therefore the applicant is not entitled to recover from the manager the fees paid for maintenance of the common property.

1. For all these reasons, the applicant's claim for loss and damage fails and the application is dismissed.

1. On 22 March 2012, the Respondents applied for the applicant's claim to be struck out on the ground that it had not provided copies of the colour photographs mentioned in these reasons for decision.
2. The history of this issue was that at the end of the hearing the applicant accidentally left with the only colour copy of the photographs. The Tribunal then ordered that copies be filed. Copies were filed. The Respondents solicitors then wrote to the registry (as appears from the file) and asked whether copies had been filed. The registrar replied on 5 March 2012 (again as appears from the file) confirming that the photographs were filed at the Tribunal on 27 January 2012.
3. Accordingly, the respondents' application for the claim to be struck out on the basis that the photographs were not filed was based on an incorrect premise and is dismissed.