(a) by paragraph 1, that the applicant be ordered to raise credit notes for $6,128.23 and apply the credits to the respondent's Levy Register Report and her Units Plan No. 3704 Owner Information ledger;

(b) by paragraph 2, that the application be dismissed and the applicant be ordered to pay costs to the respondent as agreed or assessed.

(c) by paragraph 3, that the applicant must not apply any future debits to the respondent's Levy Register Report and her Units Plan No. 3704 Owner Information ledger that are not general meeting approved levies, unless approved by ACAT or a court of competent jurisdiction.

(d) by paragraph 4, that the executive committee have breached their duty of care to the respondent pursuant to the requirements of the Code of Conduct prescribed in schedule 1 of the Unit Titles (Management) Act 2011.

(e) by paragraph 5, that the executive committee commenced the proceedings without owners corporation authorisation and in breach of its duty of care to the respondent pursuant to schedule 2 of the UTMA.

(f) by paragraph 6, that the claim in the application is frivolous, vexatious and lacking in substance and is an abuse of process.

1. An explanatory note asserted that the applicant commenced proceedings to recover an alleged debt when the claim was not urgent. The applicant did not obtain general meeting approval prior to commencement of the proceedings. The legal costs were admitted by the applicant's agent, Collection Corporation of Australia (CCA), to likely breach the limit set out in the UTMA. No regard was taken into account of likely costs and the costs of commencing recovery action now "massively exceeded" the amount of the debt. Further, no cause of action is evident.
2. The counterclaim repeated the orders sought in the response and additionally sought an order that the applicant pay $1,500 and the costs of the counterclaim to the respondent and a declaration that the control and maintenance and repair of the reticulated water supply services installed at the Axis Apartments up to and including the water meters is to be treated as common property.

1. An application to recover expenses as a debt under section 31 is a debt application within the meaning of s 16 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) and should be brought within the tribunal's civil jurisdiction: see The Owners - Units Plan No 14 v Wright [2021] ACAT 15 at [80].
2. The orders sought in paragraphs 1, 3, 4 and 5 of the response and all of the orders sought in the counterclaim relate to a dispute between an owner of a unit in a units plan and the owners corporation, executive committee and potentially the strata manager. Jurisdiction in relation to disputes of that kind is conferred on the ACAT by s 125(1) of the UTMA. Pursuant to s 125(2), a party to such a dispute may apply to the ACAT for an order in relation to another party to the dispute if the application relates to the dispute. An application under s 125(2) is not stated to be a civil dispute application and according does not meet the definition of a civil dispute application in s 16(1) of the ACAT Act. As a consequence, the tribunal lacks jurisdiction to make orders of that kind where the tribunal is exercising civil jurisdiction: see Maher v The Owners - Units Plan No 3115 [2021] ACAT 110 at [53] to [57] and [68].
3. As some of the declaratory relief relates to alleged breaches of duty and the code of conduct by the executive committee - see schedule 1, part 1.1 of the UTMA - the executive committee is a necessary party to the counterclaim - see ss 125(1)(b) and 125(2) of the UTMA. Further, as the counterclaim includes allegations that the strata manager acted in reckless disregard of its duty and, together with the executive committee, engaged in misleading or deceptive conduct, the strata manager should be given the opportunity to be joined as a party also.
4. These considerations made it inappropriate for the counterclaim to be heard together with the applicant's s 31 claim.
5. At my request, the matter was listed before me for directions on 24 January 2025. The following issues raised by the respondent emerged as relevant to the respondent's response to the s 31 claim.

(a) First, whether the hot water plumbing under the respondent's laundry sink was leaking and in need of repair. The respondent contended that there was no leak and that the plumbing did not require repair.

(b) Second, if the plumbing is found to have been leaking and required repair, whether the plumbing is common property or unit property. The respondent contended that it was common property.

(c) Third, if the plumbing is found to be leaking and required repair, whether the leak was caused by the plumbing contractors who attended the respondent's unit on 5 October 2022. The respondent contended that any leak was caused by the negligence and defective workmanship of the plumbers.

(d) Fourth, if the plumbing is unit property, whether the cost of repairs charged by the plumbing contractor was reasonable. The respondent contended that the cost was not reasonable.

(e) Fifth, if the plumbing is unit property, whether the applicant nevertheless assumed responsibility for complete replacement of the plumbing from the discharge side of the isolation valve to the discharge side of the tempering valve. The respondent contended that the applicant had assumed such responsibility by decisions made at the annual general meeting on 23 March 2023.

1. After hearing from the parties, I set aside the orders made on 11 December 2025, vacated the hearing on 28 March 2025, stayed the counterclaim until further order and listed the application under s 31 of the UTMA for final hearing on 18 February 2025. Evidence at the hearing was to be given orally and in person and, if either party wished to rely on documents, they were to bring them to the hearing.
2. Rule 36 of the ACT Civil and Administrative Tribunal Procedures Rules 2024 provides that the tribunal may order, on application by a party or on its own initiative, that an application commenced in one jurisdiction is to be heard in a different jurisdiction. As the only issue to be decided concerned the applicant's debt application commenced in the tribunal's unit titles jurisdiction, it was appropriate to order that the application be heard and determined in the tribunal's civil jurisdiction. I overlooked to do so at the time and accordingly, addressed that oversight by an order made on 12 March 2025. A similar thing was done by the appeal tribunal in The Owners - Units Plan No 14 v Wright [2021] ACAT 15 at [83].

1. The application was heard on 18 February 2025. The hearing commenced at 10:00 am and finished at 5:47 pm. The applicant was represented by counsel. Representatives of the strata manager attended to provide instructions.
2. The respondent was represented by a friend, Daryl Johnston. Although Mr Johnston does not hold legal qualifications, he has experience as a paralegal and appears to have been retained by the respondent since early 2023 to provide assistance in investigating the claim, communicating with various parties including the strata manager and executive committee on the respondent's behalf and to act as her authorised representative for the purposes of the ACAT proceeding, including preparing the response and counterclaim.
3. The applicant tendered two bundles of documents, which were marked exhibit A (comprising 83 pages) and exhibit B (comprising 15 pages) and a USB containing videos and audio which was marked exhibit C. Nathan Clark, a senior plumber employed by Water Tight Canberra Pty Ltd gave oral evidence on behalf of the applicant and was cross-examined.
4. The respondent tendered a bundle of documents comprising 104 pages, which was marked exhibit R1 and the minutes of the annual general meeting of the owners corporation held on 15 March 2022, which was marked exhibit R2. Both Mr Johnston and the respondent gave oral evidence and were cross-examined.
5. At the conclusion of the hearing, I reserved my decision.
6. On 27 February 2025, the respondent filed an application for interim or other orders seeking leave to reopen her case and rely on additional submissions and evidence relating to the issue of costs. The application was supported by an affidavit of the respondent affirmed on 27 February 2025, which included annexures A to N comprising 90 pages. On 28 February 2025, I made orders in chambers granting leave and listing the matter for further hearing on 12 March 2025.
7. At the hearing on 12 March 2025, the applicant was again represented by counsel. Representatives of the strata manager were in attendance to provide instructions.
8. The respondent was self-represented.
9. The applicant tendered an updated schedule of costs including adjustments claiming additional costs for the extended duration of the hearing on 18 February and the extra hearing day on 12 March 2025. This was marked exhibit C.
10. During the hearing I asked for and was given copies of the strata management agreement between Signature Strata Pty Ltd and the applicant dated 23 September 2024, minutes of an executive committee meeting held on 23 April 2024 and the alternate rules adopted by the owners corporation. These were not given a formal marking but were the subject of oral submissions.
11. The hearing lasted two and a half hours. At the conclusion of the hearing, I reserved my decision.

1. Where the events in question happened some three years ago, I have placed primary reliance on contemporaneous documents, photographs and videos in making findings about events and circumstances that are relevant to the decision I have to make. I have listened carefully to the oral evidence and, where necessary to explain the relevant background, have referred to it in my reasons.
2. A convenient starting point is the amended minutes of the annual general meeting of the owners corporation on 20 March 2023, a copy of which commences at page 57 of exhibit A. The following appears under the heading 'Hydraulic Upgrade'.

Axis Apartments has one hot water system in each tower which services the units of that prospective tower as well as the walk up units. Each unit has a tempering valve that mixes hot and cold water to ensure the hot water outlet temperature in the unit is a safe 50 degrees C. The hot and cold water supply lines to the units are arranged in loops that service a number of units off the main supply lines. The tempering valves have a service life of about five years.

An increasing number of tempering valves have been failing at Axis Apartments as the valves are well past their five year lifespan. When a tempering valve fails, hot water can enter the cold water lines. This is because there are not particular valves in place which may otherwise stop the hot water from entering the cold water supply lines. This can affect either your property or your neighbour's property. Generally, when the issue occurs, multiple units on a loop need to be inspected in order to determine which tempering valve has failed. Consequently, if you experience the issue replacing your own valve may not solve the problem. The tempering valves are likely to continue to fail and potentially may increase in incidence as the building ages. Further, simply replacing the faulty tempering valve will only correct the issue until it or another tempering valve on the loop fails again.

Works approved at the 2022 AGM were introduced on a select few prototype units, however created unforeseen complications. Sellick Consultants, specialist hydraulic engineers, were consequently engaged to review the hydraulic installations at Axis Apartments and develop (in conjunction with Water Tight Plumbing), a solution for installation to all units.

1. A motion was carried accepting a quotation for a hydraulic upgrade to each individual unit (numbering 347 units after three prototype solutions were installed) in accordance with specifications provided by Sellick Consultants, at a total cost of $350,123 plus GST, such sum to be financed by way of a special purpose fund levy.
2. The minutes referred to two options offered at the 2022 AGM for reimbursement to owners for recently replaced tempering valves. The minutes recorded that the reimbursement option was no longer available because the design proposed by Sellick Consultants specified the use of particular infrastructure. Existing valves were unable to be reused with the new design and the reuse of any existing infrastructure would result in an inability to warrant the works.
3. The minutes recorded:

The Tempering Valves located in each unit have always been the responsibility of each individual unit owner.

Reimbursements were only being considered on the basis of a site wide upgrade to the hydraulic systems within the development. Those valves which have been replaced were replaced due to them having failed or being close to failure (manufacturers consider all valves will require replacement between 5 and 15 years).

1. A motion was carried that the owners corporation determine a Special Purpose Administrative Fund Levy of $172,639.10 plus GST for the purposes of funding upgrades to existing tempering valves to individual units, such sum to be contributed on a fixed cost per unit basis at quarterly intervals on the first days of April, July and October 2023 and January 2024.
2. A copy of the Sellick Consultants' report dated 20 December 2022 is at page 26 of exhibit R1. Relevantly, the report gives the following background to the decision to renew the valve trains within all apartments.

The as constructed valve trains (in some instances) were located beneath laundry tubs in a location that is very difficult to access for maintenance or replacement purposes.

The location chosen by the original plumbing contractor was also in a position prone to ongoing damage by property owners by way of using this laundry cupboard for storage purposes and accessing material stored on a regular basis.

To exacerbate the matter, the original plumbing contractor did not use a traditional joining method of Teflon tape for all fittings associated with the valve train but used a 'Loctite' method of jointing using a liquid substance that hardens - thereby locking components in place. Unfortunately, this method whilst avoiding leakage where installed in concealed locations, cracks when prone to damage when installed in locations where access is permitted for occupants to abut with stored components of a heavy nature. This damage has consequently caused leaking of this valve trains in a number of locations throughout the apartment complex.

Leaking water then was able to surreptitiously evade visual detection but makes its way through the substrata of the floor and concrete slabs, then causing staining of ceilings in apartments beneath the affected apartments having leaking valve trains.

1. The report discussed a further problem of fluctuating hot water temperatures within dwellings attributable to tempering valves nearing the end of their useful lifespan. This was a further reason to replace all the valve trains.
2. The first mention of water damage to the ceiling of unit 24 is in an email from a property manager at Independent Property Group responsible for letting the property to the strata manager on 9 March 2022, attaching a photo of the damage and enquiring whether the apartment above could check to see if there was any indication of the issue. The strata manager forwarded the enquiry to the then owners of unit 36.
3. An email from the strata manager sent on 17 March 2022 stated that the affected unit had advised that the leak was in the kitchen area and that the area remained wet, even during dry weather, indicating an active leak from the kitchen of the unit above, being unit 36. To avoid ongoing damage, the leak needed to be investigated and rectified, as did the consequential damage to unit 24. The strata manager enquired of the owners whether they wished to engage their own independent contractor to investigate and repair, or leave it to the strata manager to arrange, noting that costs would be recoverable from the originating unit. The response, if there was one, is not in evidence.
4. The respondent gave oral evidence that she commenced to occupy unit 36 on 7 July 2022 under a tenancy agreement and became the registered owner upon completion of the sale and purchase of the unit in the last days of July or in early August 2022. The respondent gave evidence that the strata manager become aware of the change in ownership only after she made contact in early October 2022. Under s 115 of the UTMA, the respondent was required to notify the owners corporation of the change of ownership within 14 days. However, apparently this did not happen until 5 October 2022.
5. The respondent said she was unaware that there had been communications with the former owners of her unit about a possible leak affecting unit 24. She also said she was unaware of any water leakage from the hot water plumbing under the laundry sink at any time prior to 5 October 2024. I accept her evidence.
6. It appears that the ownership of unit 24 also changed in the meantime. On 18 September 2022, the strata manager received an email from Sharee Alarco, who identified herself as the new owner of unit 24, advising that "there is damage in the ceiling and water leaking into the bucket I placed as a preventative measure". She asked that arrangements be made for someone to come in and inspect and rectify the leak. She advised that she would be moving into the apartment on 3 October, so that rectification could occur anytime from 4 October.
7. On 27 September 2022, the strata manager issued a work order to Water Tight Canberra Pty Ltd (Water Tight) requesting them to investigate the source of the leak. The 'property affected' was said to be "common property". The work order stated that "previous plumbers have advised that it is coming from the unit above which is U35" and gave contact details for the owners of units 24 and 35.
8. It appears from the respondent's evidence mentioned earlier that the strata manager was unaware at this time that ownership of unit 36 had changed.
9. The approved plans for Level 3 and Level 4 in Tower 1, copies of which are at pages 3 and 5 of exhibit R1, show that unit 36, rather than unit 35, sits directly above unit 24 and that the laundry of unit 36 (located on grid line D) is directly above the junction of the kitchen and dining/living room space of unit 24 (also located on grid line D).
10. Two employees of Water Tight, Ben Parker and Luke - his second name is not apparent from the evidence - attended the site on 5 October 2022. They made a contemporaneous record of what they observed and the work they did on several short video clips (including audio), which were saved to a USB and tendered as exhibit C.
11. The respondent said she was reading the minutes of the 15 March 2022 annual general meeting, which is exhibit R2, when she heard a knock on the door. She opened the door to two workmen who said they were investigating a leak. She showed them the kitchen and bathroom but it appeared to her they were only interested in the laundry. She did not see the workers filming and her evidence is that neither said anything to her about water leaking. She said she stored some cleaning products under the laundry tub but had not noticed any water pooling there.
12. The following audio can be heard in the first video clip in exhibit C (video_24352_2022_10_05-132537_10):

Alright so just after stepping out the below unit we found that the issue is located at unit number 36. We've gone in and we've knocked and the owner of the unit has graciously let us in to investigate and we found that the laundry area is quite wet and we've then reconfirmed that with hot water and...(cut off)

1. Contemporaneous notes recorded by Ben and Luke are at pages 22 to 24 of exhibit A. Although the ACAT is not required to comply with the rules of evidence - see section 8 of the ACAT Act - the notes are part of the business records of Water Tight Canberra and therefore would be admissible as evidence of the truth of the representations made in them as an exception to the rule against hearsay evidence if the rules of evidence applied. It is appropriate for the Tribunal to rely on the notes notwithstanding Ben and Luke were not called as witnesses.
2. Ben's note at 1:50 PM on 5 October 2022 states:

Confirmed unit 36 is above unit 24 and have found a large amount of water around the isolation (sic) under the laundry tub.

We attended site and located the leak to the laundry of unit 36 where we found the water manifold of the meter and tempering valve. We disassemble the joints and reassembled with more loctite string.

Unit 35 has leaks from the string joints on the brass 90s at the bottom of the manifold and also requires a new mixer tap however is waiting to see if strata will fix the manifolds for the entire complex first.

Attended to site inspected unit 24 and 35 during confirming that we agreed that unit 35 is not the unit with issue we then stepped out and then inspected unit 36 and found leaks on the hot water side from the elbow after the inspection to the elbow before the tempering valve. Re did all pipework on hot side to ensure no further leaks. Explained to unit 24 what we found and recommended to monitor and notify us if issue re occurs. (All errors in the original)

1. Photographs of the valve assembly under the laundry tub of unit 36 at pages 29 to 32 of exhibit A, particularly the photograph at page 29, show clear evidence of water leakage from pipe joints above and below the pressure reduction valve and on either side of the 90 elbow joint. The extent of visible calcification at pipe joints, staining of floor tiles and corrosion of the steel base of the laundry cabinet indicates that the plumbing had been leaking for some time. The video footage and audio in exhibit C confirms the presence of leaks and the work Water Tight did to investigate and repair the cause of the leak.
2. Water Tight received a report on 31 October 2022 that the leak was continuing. On 8 November 2022, Nathan Clark, a senior plumber employed by Water Tight, attended unit 36.
3. At 3:11 PM on 8 November 2022, Water Tight's office manager, Anabel, noted:

Nathan called from site and advised that we will have to go back to Unit 36 to replace the hw valve - once confirmed with tenant will have to email Nina [the strata manager] and advise of a water shut down for 2 hours for the entire complex to replace leaking isolation valve to the hws of Unit 36.

1. Water Tight's invoice dated 28 November 2022, stated in relation to the site visit on 8 November 2022:

Returned to site as unit 24 advised the leak was continuing. We found further leaks on the liquid locksealed fittings. We removed the parts we could and resealed, however, after doing this the main isolation valve started leaking on the pressure side of the ball valve. This is due to a poor original installation where a liquid sealant was used. We will need to return to site, shut down the entire building and replace the main isolation tap.

1. Nathan Clark and Luke returned to the site on 14 November 2022 to replace the ball valve. The 28 November 2022 invoice stated:

Attended site and shut the water to the entire building and drained the water water (sic). We replaced unit 36's main ball valve and then reinstated the water to the building including bleeding as much air from the system as possible.

1. At 9:29 AM on 22 November 2022, Water Tight's office manager noted:

Checked with Nath and advised U24 currently has no more leaks so he said okay to close off for invoicing and reporting.

1. On 28 November 2022, Water Tight issued an invoice for $1,803.40 for 3.5 hours' work on 5 October 2022, 1 hour's work on 8 November 2022 and 2.5 hours' work on 14 November 2022. A 33% discount was applied to the rate charged for the apprentice (presumably Luke) who assisted on 5 October and 14 November 2022 based on reduced 'effectiveness'.
2. Nathan Clark gave oral evidence and was cross-examined. He is employed by Water Tight as a senior plumber and has 10 years' experience. Referring to the photograph at page 29 of exhibit A, he identified each component of the hot water service control valve assembly that is relevant to the claim. At the junction of the supply side hot water pipe and the wall under the laundry sink, the first component is an isolation valve, also referred to as a 20 mm ball valve. The handle of the isolation valve allows the flow of mains hot water to the unit to be turned on or off. The isolation valve is joined to a 90 degree elbow joint ending in a 20 mm nipple. This is connected to a pressure reduction valve which, in turn, is connected to a 20 mm to 15 mm reducing bush. This is connected to the hot water metering valve.
3. The applicant's position is that all of the components of the water services control valve assembly, including the isolation valve, are unit property. The respondent's primary position is that all of the components on the supply side of the metering valve are common property. Alternatively, the respondent says that the isolation valve is common property even if the other components are not. I discuss this later.
4. Mr Clark described what he saw and did on the two occasions he attended unit 36 and how the appropriate labour costs were worked, including the reason for discounting the apprentice's hourly rate for 'effectiveness'. Mr Clark's evidence was consistent with the contemporaneous records and was not shaken in cross-examination. I consider his evidence to be reliable and I accept it.
5. The respondent alleged, as part of her response to the claim, that if there was a leak in the valve assembly under her laundry sink, it was caused by the negligence and poor workmanship of Ben and Luke who attended the premises on 5 October 2022. The allegation appears to rely principally on the Tribunal accepting that because the respondent had not observed any water on the floor under the laundry sink before the attendance by Ben and Luke, there could not have been a leak and therefore it must have been caused by them. The reasoning is flawed, and I reject it. The physical evidence of long term leakage that can be seen in the photographs taken on 5 October 2024 and the contemporaneous notes of the same date persuade me to the contrary, notwithstanding that I accept that the respondent had not noticed the leak previously.
6. The strata manager issued a further work order to Water Tight on 8 December 2022 which stated:

Ref attached picture - owner of unit 24 is claiming water pictured is from previous leakage from unit 36. She was apparently advised by Water Tight that the water may appear somewhere else.

Please attend and investigate - please note that owner has been advised costs will be recovered if found to be from her unit so please specify the cause clearly on invoice.

1. The respondent claimed that this was evidence of a continuing leak. I am satisfied that it is not as the following series of emails from the owner of unit 24 to the respondent make clear.
2. The owner of unit 24, Ms Alarco, emailed the respondent on 16 January 2023 asking her to confirm acceptance of responsibility to pay for the patch and paint work to her unit. The email was the most recent communication in an 11-page chain of emails extending back to 27 October 2022, when Ms Alarco initially obtained a quote to repair her ceiling for $700. A copy of the email chain is at pages 42 to 52 of exhibit A. An email sent by Ms Alarco on 4 January 2023, confirms that the leaking had stopped. Another email sent by Ms Alarco on 10 January 2023, states:

As can be seen in the plumbing report we were provided yesterday, the water leak originated from Unit 36 laundry and from the previously faulty liquid sealant within that area.

The ceiling patch and paint is the direct result of the leak and thus Unit 36 (the responsible party of the leak which is outlined in the plumbing report) is accountable for this work so as to leave the ceiling in the same condition it was prior to the leak.

Following Strata's recommendation for Glendening Painting (who have completed similar works within this apartment complex) to patch and paint the ceiling I have obtained the quote from them and this was originally forwarded to Strata for their coordination, please see attached both the quotation and email for your reference.

The associated cost is $700 ex GST and includes the labour of one plasterer and one painter to complete the job.

Could you please provide your acceptance of this quote so we can schedule these works to close this leak issue.

1. The claim for recompense by the owner of unit 24 and realisation that the owners corporation was seeking to recover the cost of the repairs from the respondent prompted her to retain Mr Johnston, for a fee, to assist her in responding to the claims. In oral evidence, Mr Johnston said he investigated the cause of the leak and for that purpose was given access to unit 24 to inspect part of the ceiling cavity and underside of the unit 36 floor slab through an inspection hatch in the ceiling. Black and white photocopies of photographs Mr Johnston took during the inspection are at pages 67 to 69 of exhibit R1.
2. Mr Johnston claimed that the photo at page 67 shows three redundant service penetrations in the floor slab of unit 36 and that calcification visible around one of the holes is evidence of leakage. He claimed that the penetrations were the source of the water ingress problem damaging the ceiling of unit 24. He made a similar claim in a document he prepared on 17 May 2023, which I will describe shortly. However, while it is conceivable that the penetrations may have provided a pathway for the escape of leaking water from unit 36, they could not be the source of the leak.
3. Mr Johnston said the photo at page 68 shows a PVC pipe in the ceiling cavity directly above where the damage to the unit 24 ceiling occurred. He speculated that staining visible on the lagging was caused by water coming from somewhere, although he insisted it was not from the hot water isolation valve in unit 36. He was unable to provide a satisfactory explanation for his belief. He speculated the water had travelled some distance along the PVC pipe before dripping onto the ceiling of unit 24. Although Mr Johnston sought to portray his 'investigation' as an exercise in objectivity, in my view, his evidence was coloured by a strong desire to show the respondent's case in its most favourable light. I did not find his evidence to be persuasive.
4. Importantly, although Mr Johnston said he observed evidence of past leaks, he did not observe any evidence of an active leak. If the water had come from somewhere else as he claimed, the repairs carried out between 5 October 2022 and 14 November 2022 should have made no difference. In fact, the replacement of the isolation valve on 14 November 2022 permanently fixed the leak.
5. On 18 May 2023, the respondent emailed a document prepared by Mr Johnston to the strata manager, describing it as the "summary of the consultant's report" mentioned in an earlier email. The respondent's email included a lengthy list of legislation, case law and documents apparently "accessed" by Mr Johnston for the purposes of his investigation.
6. The document commenced with the following statement:

This is a summary of an extensive report I prepared for Nicole Moore, the owner of unit 36 in Unit Plan 3704.

1. If such an "extensive report" exists, it was not part of the respondent's evidence.
2. The summary continued as follows, under the heading 'The Issues in Question?':
   • Is Ms Moore liable to pay for the remedial plumbing work undertaken by Water Tight Canberra Pty Ltd as a representative of The Owners - Units Plan 3704 ("the Owners Corporation or OC")?
   • Is Ms Moore liable to compensate any third party for consequential damage incurred elsewhere at Axis Apartments?

The Owners Corporation has loaded Ms Moore's strata statement with a sum charged for plumbing repairs to a shared water supply system ("the water supply system") in the building and furthermore the OC has informed the Unit 24 owner through its managing agent, that Ms Moore will be financially liable to that owner for repairs to ceiling damage.

1. In the next part of the summary, under the heading 'Facts and the ACAT Authorities - An Interim Observation', Mr Johnston wrote:

It can be reasonably concluded from ACAT authorities that maintenance of hot water systems servicing all owners must be regarded as common property and an essential communal utility service up to and including the tempering valves and flow metering of hot water for individual units. The isolation valves are positioned on the intake side of the tempering valves. The isolation valves are not shown on the plan for Unit 36 and this fact further reinforces the conclusion that the owner of Unit 36 does not have a positive obligation to maintain the valves. The reasoning taken in Castro defines the Owners Corporation duty to repair common property.

1. I understand the reference to 'Castro' to mean the decision in Castro v The Owners - Units Plan No 246 [2016] ACAT 111. I discuss that decision later.
2. The summary continued:

Hot water extracted from the common property utility, once metered and temperature controlled for safe use would be regarded to then pass into the plumbing that would be owned and responsibly maintained by the Unit Owner.

In the case of the dispute that I have been engaged to investigate and to provide advice, there is no allegation there was a water leak on the delivery side of the tempering valve.

I cannot see a practical argument arising from any of the documentation cited or from my own photography and observations that may support a claim that remedying a faulty hot water isolation valve imposes a positive maintenance obligation on the owner of Unit 36. In fact, and on the ACAT interpretations the positive maintenance obligation must be performed by the Owners Corporation, as the hot water isolation valve is common property.

1. Under the heading, 'Amendment to the Scope of the Investigation', Mr Johnston wrote:

Nothing exists on the plan for my client's plumbing intruding into another property, and therefore based on the determinations in ACAT authorities, the Owners Corporation would be the responsible entity to compensate for that issue. In my view this positive maintenance obligation should be imposed on the Owners Corporation and it arises from a design and construction defect, but the individual owners should not bear any responsibility, as neither the Unit 36 owner nor the Unit 24 owner, has both access control and ownership over the plumbing.

The strata manager had written express communications to the owner of Unit 24, alleging that the Unit 36 owner was responsible for water damage to the ceiling. In my view the managing agent's communications generally and the allegation of liability owed by my client was inappropriate. The compensation claim coming from the Unit 24 owner motivated my client to discover that she had been billed $1800 for plumbing and was expected to foot the bill for a $700 ceiling repair. This was the first time she had received any communication that she may be liable.

It was the introduction of the unexpected degree of complexity arising from the slab design, plumbing penetrations and redundant infrastructure, and the sub-optimal delivery of communications that caused my instructor and principal to amend my terms of reference.

I have been instructed to conduct a risk assessment of her property portfolio in UP 3704.

1. The mentioned "property portfolio" appears to be a reference to a wall mounted air-conditioning compressor and the unit subsidiaries that are part of unit 36, comprising a car park and storage unit on basement level 1.
2. The summary then set out what were said to be "risk assessment observations" that are not presently relevant.
3. Under the heading, 'Conclusions', Mr Johnston wrote:

In respect of material risks, the entire basis of this report is prefaced on that subject. Initially I was only engaged to investigate what appeared to be a water ingress issue and what my client considered to be an unwarranted or excessive claim for repair and compensation. I considered and objectively examined the considerable legal authority, facts, and the governing legislation applicable in the ACT.

1. After commenting on other matters that are not presently relevant, Mr Johnston continued:

In my opinion, there is nothing expressed on the plans or in the records applicable for Unit 36 to suggest that the common property reticulated hot water scheme ends until the temperature of the water has been reduced from 75°C to 50°C and metered for billing to the individual unit owner. I understand this to mean simply that 75°C hot water is on common property and 50°C hot water post metering is channelled via the mains owned and maintained by the individual property owner.

The hot water isolation valve, the subject of this dispute exists on the supply side of the tempering valve complex. As such it must be common property, as it is not shown to be as part of Unit 36 on any plans or referred to in any document that states it is not common property. As such the Unit 36 owner has no positive maintenance obligation.

Furthermore, the slab under the laundry sink is structural. On inspection, concealed to the Unit 36 owner and covered by tiles are redundant penetrations and, in my opinion, it is through those penetrations that the water ingress problem damaging the ceiling in Unit 24 occurred. Maintenance of the floor slab is entirely the positive maintenance responsibility of the Owners Corporation, if for no other reason than it is structural and should be free of any defect allowing water ingress to occur.

Ms Nicole Moore, in my opinion does not have any obligation to pay the Water Tight Canberra plumbing bill and she therefore has no liability to compensate the Unit 24 Owner. A payment of compensation to the Lot 24 owner may be appropriate by the Owners Corporation, as there is certainty of water ingress damage.

The managing agent in my view has taken a simplistic interpretation of ACT regulations and likely misunderstood the damaging impact that misconceived assertions of that kind have on individual owners. In respect of this dispute, there was without doubt poor communication and this is a factor that has worsened the stress imposed on the Unit 24 and Unit 36 owners. In my opinion it is critical when potential dispute or crisis situations arise that all communications must be impeccable, and this includes the minute keeping of meetings. I conclude that on what I have seen and listened to from the floor at the recent AGM that there is a lot of doubt that the record-keeping at UP3704 is adequate.

My client has incurred costs funding this report. The Owners Corporation has obtained a benefit from my client's insistence on risk assessment reporting.

1. Presumably, the costs incurred by the respondent in funding Mr Johnston's report explains the sum of $1,500 the respondent seeks to recover from the applicant by her counterclaim.
2. In conclusion, Mr Johnston observed:

The investigation and commentary contained within this report is not intended as legal advice. The report is a record of the investigative steps taken, the observations, the ACAT authorities cited, and a summary of information provided by various owners that I have used in my analysis, and subsequent report to my client.

Should legal advice be required I recommend that a qualified legal practitioner be engaged.

The sum of money involved in this dispute is relatively small. I recommend for the benefit of all parties involved, a sensible commercially comfortable settlement. The scheme should drop the claim for payment of $1803.40 debited to my client's account.

1. It should be mentioned at this point that when Mr Johnston gave oral evidence at the hearing, he did so explicitly as a lay witness of fact and not as an expert. His evidence included that he had qualified as a food scientist, was involved for a period of time in waste management systems, worked as a forensic analyst and then as a paralegal and, as he described, had a "background in science". He had been chairman of an owners corporation and at one time took over the strata management of an apartment building in Sydney. None of that background qualifies him to give expert opinion evidence. Accordingly, while I have given careful consideration to Mr Johnston's evidence about what he observed during his 'investigation' of the origins of the leak, I have not placed any reliance on his opinions in relation to other matters in the report to which I have just referred.
2. The debt was referred to CCA in February 2024. CCA sent a letter of demand to the respondent by registered mail on or about 20 February 2024, for which they charged the applicant $77.00.
3. A letter from Mr Johnston to Stephen Ecob of CCA dated 14 May 2024, listed the communications that followed receipt of CCA's letter of demand.
   • My email to CCA dated 23 February 2024
   • CCA email to me dated 4 March 2024
   • Telephone conversation (Messrs Johnston/Ecob) 3 April 2024
   • Text from me to you dated 3 April 2024
   • My email to CCA dated 4 April 2024
   • Telephone conversation (Messrs Johnston/Ecob) 4 April 2024
   • Telephone conversation (Messrs Johnston/Ecob) 5 April 2024
   • Telephone conversation (Messrs Johnston/Ecob) 8 April 2024
   • Telephone conversation (Messrs Johnston/Ecob) 15 April 2024
   • Minutes of Executive Committee meeting published 30 April 2024
4. The last-mentioned meeting of the executive committee took place on 23 April 2024. The minutes record the following under the heading 'Unit 36 Debt':

Update provided by the collection agency (CCA) purports unit 36 has conceded liability for the plumbing repairs undertaken within the unit, however the value of the invoice remains in dispute. Awaiting offer of settlement from unit 36. The meeting agreed that the Owners Corporation would accept nothing less than the full invoiced amount, plus all interest and levy recovery fees incurred.

1. On 26 April 2024, the respondent made a Calderbank offer to the applicant. Despite the 'without prejudice' status of the communication, the respondent tendered it without objection from the applicant as an annexure to the respondent's 27 February 2025 affidavit. The 'Respondent's Background Summary' is reproduced in full below:
   1. At all material times the Applicant had as its agent Signature Strata Pty Ltd ("the Agent"). The Applicant is bound by the conduct of its agent.
   2. The Agent instructed Water Tight Canberra Pty Ltd ("the Plumber") to conduct plumbing repair work to be carried out, or caused the work to be carried out, the work being described in the attached Schedule of Works ("the Work").
   3. As the principal of both the Agent and the Plumber, the Applicant is responsible for the Work and any defects, unreasonable costs, delay in conducting repairs, poor or improper workmanship, and the non-existent communication to the Respondent at the times the Work was performed, and the damages arising from these issues.
   4. The Work was performed by the Plumber and not done within the reasonable expectation of cost or done in a proper and workmanlike manner.
   5. The Work was done absent of the Respondent's instruction, supervision, direct involvement, or recourse.
   6. Notification from the Applicant or the Agent or the Plumber to the Respondent, that she might face a claim for repair costs, was absent until well after the Work was completed. The Respondent was only communicated to by the Agent after a period of 97 days had passed since the Work commenced, and then only indirectly nearly 2 months after completion of the Work.
   7. No inference can be drawn from the conduct of the parties described in paragraph 6 that there was any assumed liability assigned to the Respondent, the only inference available being the Work was to repair common property.
   8. The Applicant and the Agent knew no emergency existed, nor did the Applicant have a binding contract with Respondent, enabling it to conduct any repairs on the Respondent's property.
   9. The only plausible inference available, is that the Applicant and the agent had complete control over the instruction given to the Plumber and each understood the Work was performed on common property.
   10. The bill rendered for the Work is grossly excessive at $1803.40. Quotations obtained from alternative plumbers put a reasonable cost at between $190 and $270 to seal the slow leak, pending a complete replacement of the faulty equipment referred to in paragraph 18. Drip trays would have sufficed as a form temporary back-up assurance, and never offered to the respondent as an option
   11. The excessive debt claim + unauthorised debt recovery fees is known to the Applicant and the Agent to be not enforceable. The replacement of the entire plumbing supply infrastructure (on the potable and hot water side under the U36 tub) that had failed or was failing at the time of the work, was replaced on 3 May 2023, at a cost of a little over $1000/unit by the Plumber and paid for by the Applicant, in respect of its AGM approved commitment to unit 36.
   12. The replacement referred to in paragraph 11, is to the effect that the Applicant's entire debt claim against the Respondent is otiose.
   13. The Respondent was not provided any opportunity to engage her own plumber, nor was she informed before or immediately after the completion of the Work that the Agent had, without the Respondents authority, instructed the Plumber to perform the Work on the water reticulation system, none of which was necessary when the full upgrade referred to in paragraph 11, was imminent.
   14. The Respondent was not provided with any competitive options, nor was she provided with any explanation of her rights before, during and after the plumbing repair job.
   15. The Work grossly exceeded what was necessary, and in fact the unsatisfactory performance of the Plumber caused fresh leaks and for leaks to occur in places that had not previously been subject to leakage.
   16. The Applicant had no right to instruct the Plumber to attempt to gain entry to the Respondent's premises without proper notice.
   17. The Applicant and the Agent each neglected to inform the Respondent that the structural concrete slab separating Units 24 and 36 had penetrations that allowed for water to infiltrate into the ceiling cavity of unit 24.
   18. The applicant's delay in replacing the tempering valve and associated plumbing infrastructure contributed to the damage of the plumbing infrastructure that was incorrectly asserted as the Respondent's responsibility to repair. At the time of the Work a special levy was being collected from owners (inc. the Respondent) to fund the upgrade and replacement, that was completed at Unit 36 on 3 May 2023.
   19. The Applicant has not performed any independent investigation, commissioned any independent reporting nor has it submitted any plausible proof in support of its allegation that the Respondent is liable to pay for the repair.
   20. The Applicant and the Agent have not provided proof of debt to the Respondent in support of the allegations of indebtedness, despite the Respondent's repeated requests for this proof.
   21. The Respondent offers to pay $300.00 to the applicant, without admission of liability to settle the plumbing debt, to "save as to costs" estimated to be spent by the Respondent in the Applicant's proposed litigation.
   22. If accepted by the Applicant, the Respondent will pay $300.00 to the Applicant within 14 days after the applicant publishes a minute of an Executive Committee meeting, noting that the offer from Nicole Moore the Unit 36 owner has been accepted by the Owners Corporation and that the dispute with Nicole Moore has been settled on the terms set out in this offer.

In proposing these terms, I point out the following -

a) The costs of the proposed proceedings, and consequential costs that will be claimed by the Respondent, can easily be avoided if the Applicant accepts this offer of settlement.

b) The Applicant has encouraged third parties to commence legal proceedings against the Respondent and the Applicant, has expressed its disappointment publicly on 8 April 2024 through its chairman that he expected the respondent to commence proceedings.

c) The Applicant and the Agent have engaged in conduct that has caused waste, frustration, needless cost, and delay over a period of about 12 months before the Applicant embarked on a disorderly enforcement process, and acting beyond its powers to recover a debt, not supported by any legislative provision, or House Rule, or proper resolution of the Owners Corporation.

d) If proceedings are commenced it will be after an inordinately protracted period of intimidation and harassment of the Respondent by reason of the failure of the Applicant and the Agent to cooperate and engage with the Respondent in the determination of what could have been a fair and reasonable settlement, of a relatively straightforward set of facts, arising from the Work.

e) In defence of her rights to seek proof of adequacy of the plumbing repair, proof of debt and costs of engagement of consultants and a lawyer to prepare for these proceedings, the respondent has incurred legal costs and disbursements in the order of $2500. The Respondent's offer to the Owners Corporation of the sum of $300 is extremely generous in the circumstances and a significant concession for costs that she could claim, consequential on proposed proceedings, and furthermore represents a considerable compromise of the amount she might reasonably expect to recover from the Application on a party/party assessment,

f) or on an application for a lump sum costs order, or

g) on an indemnity basis.

1. Although the letter was issued under the respondent's name and signature, I infer from its contents and style that Mr Johnston was its author.
2. On 14 May 2024, Mr Johnston sent a further lengthy letter to Mr Ecob. The letter listed further communications that followed receipt of the Calderbank offer.
   • My email to CCA dated 3 May 2024
   • Email from Kerrie O'Connell to me dated 8 May 2024
   • My email to Kerrie O'Connell dated 8 May 2024
   • Email from Kerrie O'Connell to me dated 8 May 2024
   • My email to Kerrie O'Connell dated 8 May 2024
3. Mr Johnston summarised his "client's" current position as follows:
   1. The entirety of the alleged debt is denied, as it always has been since at least February 2023, when the SMA first made allegations to argue for payment.
   2. The ECM minute published on 30 April 2024, must be amended to reflect the facts of the situation expressed by you and in accordance with the particulars set out the "Calderbank Offer". There is no admission of liability and if the Owners Corporation files at ACAT its claim will be vigorously defended.
   3. My client will consider a concession from the Owners Corporation to forgo any costs claims and she will compromise accordingly, and she is prepared to sign a mutual undertaking to make no claim for costs.
   4. My client accepts that the dispute will be determined by ACAT if the Owners Corporation make a claim for payment of its alleged debt and herein puts the Owners Corporation on notice that any claim made by it will be vigorously defended. The Owners Corporation should now be in no doubt as to the range of possible defences it will face.
   5. Witness credibility and reliability will play a crucial part in determining the issue of liability in a contested proceeding. My client is very confident that she will be seen as an honest, credible, and reliable witness.
   6. My client invites the Owners Corporation to make an offer of settlement, excluding all fees, penalties and interest and considering the particulars stated in the "Calderbank Offer" and the contents of this letter. The two documents provide a good insight into the likely defences the Owners Corporation will face if it commences proceedings.
   7. My client is amenable to a commercially comfortable settlement, without admission of liability.

I have written this letter in a further effort to narrow the issues in the hope that the Owners Corporation can get an understanding of the facts. I believe to date that the Owners Corporation has not acted on independent advice and that it has only referenced incomplete or more likely irrelevant documentation at the ECM level. No minute exists to state what was considered.

Please note that nothing has been disclosed in any ECM minute that provides me with any confidence that the Executive Committee has been briefed appropriately or independently in respect of this dispute.

I am hopeful that you may provide some enlightenment to the Executive Committee.

1. The applicant sought legal advice from Susan Proctor, a solicitor with considerable experience in unit titles matters. On 28 May 2024, the strata manager emailed Proctor Legal requesting a fee proposal to advise in relation to the following matters:
   1. confirm Unit 36's liability for the plumbing repairs carried out by Water Tight detailed in the invoice number 24352 dated 28 November 2022 (attached)
   2. confirm ability of the OC to recover from unit 36 costs for plumbing repairs, along with all interest and arrears recovery costs incurred
   3. confirm whether the OC has any ability to recover the cost of your advice from unit 36
2. In the same email, the strata manager advised that the matter was now with CCA and was ready to be referred to the ACAT but that action had been suspended pending specialist advice confirming liability for the cost of initial repairs and subsequent interest and arrears fees.
3. On 29 May 2024, Ms Proctor wrote in an email to the strata manager, Nina Cannell:

What's missing in terms of being able to provide advice is on what basis Water Tight accessed the unit/was any notice provided or consent sought? A fee estimate to provide advice on this would be at least 2 - 3 hours of my time at $700.00 plus GST per hour. What's missing is any info in support of a wilful or negligent act or omission by the owner of Unit 36, or a breach of the rules to pass on Section 31 costs, to agitate the matter further by ACAT would be at a significant additional cost with no certainty of outcome.

On the face of it, even though I am of the view that the internal plumbing is the responsibility of the Owner, in the absence of seeking consent and/or proving a negligent act or omission or breach of a rule, success in enforcing a Section 31 is questionable.

1. Ms Cannell replied by email, providing instructions in response to the matters raised by Ms Proctor. An undated copy of the email is at page 90 of the respondent's affidavit. It is common ground that the email was sent on 31 May 2024.
2. On 12 June 2024, Proctor Legal issued a costs agreement and fee estimate of between $1,400 and $2,100 plus GST and disbursements for providing the advice. On the same day, the strata manager advised Ms Proctor that the executive committee had approved her fee proposal and instructed her to proceed.
3. On 26 June 2024, Proctor Legal provided a letter of advice to the owners corporation. The gist of the advice was that the plumbing under the respondent's sink is not common property and that the owner, rather than the owners corporation, is responsible to maintain it. The owner arguably was in breach of default rules 1.3 and 1.9 and, on the facts, the owners corporation should be able to support a section 31 claim against the owner.
4. CCA emailed a copy of the advice to the respondent on 3 July 2024. The email said:

Since I last communicated with you about the plumbing debt owed to the owners corporation (OC) the OC obtained a legal opinion on your liability to pay for the works done. The legal opinion is attached, and it supports the view that you are 100% liable for the plumbing repairs and therefore the cost. If you continue to refuse to pay the OC will have to incur a further expense when it issues a debt application in ACAT to obtain an order that you pay the plumbers bill.

If ACAT agrees with the legal opinion, then you will be liable for the costs of proving the debt in the ACAT proceedings.

I issue proceedings in ACAT to recover levies and when owners defend cases and eventually lose the costs can be between $2000 - $13,000 depending on the amount of time and work involved.

I understand you received advice from Lindsay Johnston, and you are refusing to make any payment.

The OC will take legal action to recover the legal and plumbing accounts, and I have been advised to commence action after 14 days if the debt is not paid, being 5pm on 17/7/2024.

You should pay the $1803.40 plumbing invoice shown on 5/12/2022 on one attachment and the $2618 legal account shown on 26/6/2024 shown on another.

I understand the strata manager will provide you with a more detailed legal account which you requested.

No further notice will be given before proceedings are commenced. If you pay the amount, you should email the electronic receipt to our office to avoid legal action being taken while the banking process occurs.

If you need to discuss anything please give me a call. (Original emphasis)

1. On the same date, CCA invoiced the applicant $88 for this communication and Proctor Legal issued an invoice for $2,618, comprising $2,100 (ex GST) for professional fees for preparing the advice and $280 (ex GST) for photocopying and other disbursements.
2. On 29 July 2024, Mr Johnston sent a further lengthy letter to the applicant and Proctor Legal. Among other things, the letter stated in reference to Ms Proctor's letter of advice:

I note that the Proctor advice to the Executive Committee has upheld my prior observation and opinion that the relevant law determined by ACAT in Castro v The Owners Unit Plan no 246 [2016] ACAT 111, is the most relevant legal authority that is applicable to provide guidance to the parties in this dispute.

The members of the Executive Committee have a clear duty to the Owners Corporation to act on independent advice and to obtain an unbiased understanding of the facts and law and this duty has been neglected. The Executive Committee may delegate duties to the Strata Managing Agent, but that does not extinguish the members' duty to engage independently to avoid a conflict of interest. The opinion the Executive Committee has previously relied upon was simplistic and possibly biased, and it has now been dismissed by the Proctor legal advice. What remains to be done is the Executive Committee's investigation of the facts, including the unconscionable conduct of the SMA during this dispute and the many Codes of Conduct breached by Executive Committee members and the SMA.

To make matters even worse, the SMA promised my client that conditional upon releasing the report to the Owners Corporation that the Executive Committee would obtain the essential independent advice. It is unacceptable that it took nine months for the Owners Corporation to engage a law firm to provide advice. Resolution of this problem will only occur when the Owners Corporation takes the initiative to undertake a complete and independently conducted investigation of all technical and factual issues and then seek legal advice based on the report received.

1. After mentioning what was said to be "the disgraceful treatment dealt to my client", Mr Johnston asserted:

The Proctor advice although deserving of credit for properly informing the Executive Committee on the expectations of the legal interpretation, is short on facts and has insufficient referencing to a factual matrix. Perhaps this is the case as no set of facts exist, except for what I alluded to in the report. The terms of reference provided to Proctor Legal have not been disclosed nor has the list of documents and other things referenced, as was the case with the report. There was also only disclosure to two references, only the House Rules and of the Water Tight Canberra Tax invoice #24352. This does not surprise me at all, as the most striking fact known, is that the Owners Corporation has made no attempt to investigate the facts and importantly to not do so, is in fact a breach of its own House Rules.

The Executive Committee has much to investigate, and it must do so, to fulfil the members' duty.

1. Then, after questioning the accuracy and authenticity of the Proctor Legal bill, Mr Johnston stated:

On a further point I note that the House Rules do not allow for the SMA to apply legal costs to my client's account until such time as a general meeting of the Owners Corporation has approved the filing of the debt recovery application and that the proceedings are active, presumably after service of the process on the alleged debtor.

The Executive Committee should seriously consider the contents of the Calderbank Offer and the consequences of taking any step until my client has been provided with all the file notes, letter of instruction, Costs Agreement, and if applicable the terms of reference sent to Proctor Legal from the SMA or directly from the Owners Corporation or by some other means. Please note that I have included CCA in this communication as a matter of courtesy.

The Executive Committee and Ms Proctor must conduct a serious and good faith investigation into this concern and then transparently disclose to my client the findings of the joint investigation. Please provide within 14 days a response, with full and honest disclosure. My client reserves all rights to take appropriate action directly and indirectly through the appropriate law enforcement agencies and regulators.

1. On 16 August 2024, the Executive Committee wrote to the respondent:

... The EC is collectively satisfied with the service provided by Signature Strata and sees no reason to change strata managers or conduct an "independent investigation".

Furthermore, the EC will no longer engage in this unproductive exchange of emails. The debt you owe is the only relevant matter. On behalf of the Owners Corporation, the EC will be engaging legal services to apply to ACAT for a directions hearing to recover the outstanding funds and any legal fees incurred.

Once legal action is commenced, the EC will only accept communication from you or Mr Johnston through our legal team.

1. On 20 August 2024, CCA issued an invoice to the applicant for $55 for a work item described as "discussion with strata manager re-recovery of repairs and advice to appoint Proctor Legal to recover plumbing and legal costs of recovery. Ensure all CCA costs are claimed by Proctor Legal". I infer from this that CCA had recommended that Proctor Legal be instructed to take over the conduct of the debt application from CCA.
2. This did not happen. Instead, a decision was taken to brief counsel directly.
3. On 11 September 2024, Mr Robens of counsel provided Signature Strata with an estimate of $9,400 for the cost of ongoing advice and attendance to the conclusion of a contested final hearing. The basis of the estimate appears as follows:

1. Reviewing the material with a particular focus on the reports of the source of the leaks. 2. Providing an informal advice on prospects, particularly considering whether it is a common property issue, and whether the legal costs can be recovered.

1. Compiling the claim and a book of evidence we will rely on, including a statement from Tom Martin of Watertight Canberra.
2. The costs agreement provided for Mr Robens to be paid an hourly rate of $400 plus GST "for all conferences, other preparation, waiting or travelling time on any day except a day on which I am briefed to appear at a hearing" and daily rate of $3,200 "for each day of hearing in any court, mediation or arbitration (or part thereof) and each full day of preparation (including any waiting or travelling time).
3. The strata manager lodged the unit titles application at the ACAT on 9 October 2024 and paid the tribunal filing fee of $366.

1. Section 31 of the UTMA applies where an owners corporation has, in carrying out its functions, incurred an expense, or carried out work, that is necessary because of a wilful or negligent act or omission of a unit owner, or a breach of the owners corporation's rules by a unit owner. In those circumstances, the amount spent or the cost of the work is recoverable by the owners corporation from the unit owner as a debt.
2. An 'expense' is defined as including a reasonable legal expense reasonably incurred, including a legal expense relating to a proceeding in the ACAT. 'Work' carried out by an owners corporation is defined as maintenance or anything else the corporation is authorised to do under the Act.
3. An owners corporation can recover an amount spent or the cost of work from a unit owner only if:

(a) the owners corporation incurred an expense or carried out work;

(b) it did so in carrying out its functions; and

(c) the incurring of the expense or the carrying out of work was necessary because of:

(i) a wilful or negligent act or omission; or

(ii) a breach of the owners corporations rules;

1. Insofar as the amount spent includes debt recovery expenses and legal expense relating to a proceeding in the ACAT, whether the expense is recoverable as a debt depends on whether it was reasonable for the owners corporation to incur an expense of the type claimed and whether each component of the expense is reasonable in amount: In the Matter of Ruling Tribunal Section 31 of the Unit Titles (Management) Act 2011 [2017] ACAT 56 at [101] - [104].
2. The applicant bears the legal and evidentiary onus in relation to each of these issues.
3. The respondent bears the onus to establish that the cost of the work is unreasonable and any other defences to the claim.

1. It is convenient to commence with three grounds raised by the respondent, each of which is said to be dispositive of the applicant's claim:

(a) first, that the isolation valve and the pipework on the supply side of the metering valve - collectively comprising the water services control valve assembly - is common property and therefore, the applicant's responsibility to repair and maintain;

(b) second, that even if the water services control valve assembly is not common property, the decision to undertake a hydraulic upgrade of the hot water system in each tower made at the annual general meeting on 20 March 2023 means that the applicant assumed responsibility for the maintenance and repair of the valve assembly pending completion of the hydraulic upgrade;

(c) third, that in the absence of approval to take legal action against the respondent by an ordinary resolution of the owners corporation, the application is incompetent and should be dismissed.

Is the water services control valve assembly common property?

1. The respondent contended that the water services control valve assembly is common property and therefore the responsibility of the owners corporation to maintain. In support of this, the respondent referred to hydraulic services plans for Tower 1 that received building approval on 4 May 2011. It is appropriate to record that the respondent was employed by Sydney Water for 15 years as a survey draughtsperson and accordingly is qualified to read and explain such plans.
2. The respondent explained in written evidence at page 9 of exhibit R1, that the floor layout of units on levels 1 to 3 is the same but changes at level 4 and then remains the same up to level 10. She prepared an enlarged image of unit 24 with the position of units 36 and 37 on the next level above overlaid to show the location of the boundary between the units plotted in red. Two service risers within unit 24 are highlighted in yellow. The larger of the two risers located between the bathroom and laundry of unit 24 also services unit 36 immediately above. At unit 36, the riser is offset approximately 1100 mm to the right and from there extends up to level 10. An enlarged image of the hydraulic services plan for level 4 at page 14 of exhibit R1 shows that hot and cold water branch lines to the water services control valve located under the laundry sink in unit 36 laundry connect to an ancillary loop line at the service riser.
3. Photographs of the ceiling cavity separating unit 36 and unit 24 show electrical wiring, PVC piping - presumably for sewerage and drainage services - and hot and cold water lines supported off the underside of the floor slab of unit 36. Presumably, this is to accommodate the offset in the riser servicing levels 1 to 3 and the riser servicing levels 4 to 10.
4. This is useful background information but does not advance the respondent's argument.
5. The respondent observed in comments appearing at page 18 of exhibit R1, that the hydraulic services plans show loops servicing multiple units with symbols for hot and cold water isolation valves located in the corridors, although in fact the isolation valves are located within individual units. The respondent contended that this was deliberate and was intended to "reflect ownership" - specifically to "indicate these valves are common property and not individually owned by unit owners". If they were intended to be individually owned the isolation valves would not have been shown in the corridor.
6. I do not accept the respondent's argument. Building work that requires building approval must be carried out in accordance with approved plans: see Building Act 2004, s 42(1)(d). Plans for the erection of a building for which building approval is required, including hydraulic services plans, must contain sufficient information to satisfy the certifier that the building, if erected in accordance with the plans, will comply with the Act, including the relevant building code: see Building Act 2004, s 29(1)b). Considering the statutory context in which hydraulic services plans for a multi-storey residential apartment building must be prepared, receive building approval and be used in the erection of the building before it can be subdivided into common property and unit property upon registration of a units plan, the plans are incapable of having the effect for which the respondent contends.
7. 'Common property' is defined in s 13 of the Unit Titles Act 2001 as all parts of a parcel identified as common property in the units plan. A 'class A unit' is defined in section 10 as a unit that is identified as a class A unit in the units plan. Section 14 provides that if a floor, wall or ceiling separates a class A unit from common property or another unit, the common boundary lies along the centre of the floor, wall or ceiling, unless otherwise specified in the relevant units plan.
8. The respondent did not tender the units plan.
9. Although I am prepared to assume, in the absence of the units plan, that the Axis Apartments comprise class A units because of the high-rise nature of the apartment complex, without reference to the units plan it is not possible to determine where the boundaries lie between unit 36, unit 24 and any common property. The default position provided by s 14 applies only unless "otherwise specified" in the units plan.
10. There may be circumstances where utility conduits such as stormwater drainage and sewerage lines, water reticulation pipes and electricity supply cables are incorporated in the fabric or structure of a building in such a way as to make them a fundamental part of the fabric of the building - e.g. by being cast into concrete columns, slabs and other structural elements that are common property. There may be circumstances where utility conduits are affixed to common property in circumstances where it may be inferred that it was intended at the time of affixation that they should become part of the common property: see The Australian College of Midwives Ltd v The Owners - Units Plan No 1475 [2022] ACAT 73. However, the respondent did not attempt to make that case.
11. If it is assumed that the service risers mentioned earlier are common property, that does not enable one to determine whether the ceiling cavity above unit 24 - through which the stormwater drainage and sewerage lines, water reticulation lines and electricity supply cables pass from the unit 24 service riser to the unit 36 service riser - is common property.
12. Even if the ceiling cavity and the water reticulation lines are assumed to be common property, it does not follow that the water supply control valve assembly located inside the boundary of unit 36, is common property. The respondent failed to grasp this.
13. The real issue is whether the owners corporation is responsible to maintain the water services control valve assembly located in unit 36 under s 24(1)(e) of the UTMA.
14. Pursuant to s 35(1) of the Unit Titles Act 2001, each unit owner has against the owners corporation and each other unit owner any unit title easement rights that are necessary for the reasonable use and enjoyment of their unit. Relevantly, pursuant to s 34 of the Act, such rights include rights to utility services and to their provision by any reasonable form of utility conduit. A 'utility conduit' means a conduit of any kind for the provision of a utility service including, for example, pipes, wires, cables and ducts for a utility service.
15. Where a 'utility service' is provided for the potential benefit of all units, s 24(1)(e) of the UTMA provides that an owners corporation must maintain "facilities associated with the provision of the utility services including utility conduits". The obligation to maintain does not depend on whether the facilities are common property. The structure of the building may determine that such facilities must be located partly in, or on, common property and partly in or on unit property.
16. The supply of hot and cold water is a 'utility service'. Pipes for the supply of water are a 'utility conduit'. In this case, each tower has a single hot water unit located on the roof. Hot and cold water is supplied for the benefit of all units by a system of main lines and ancillary lines coming off the main lines arranged in loops.
17. Branch lines coming off the loop lines supply hot and cold water to individual units. Each branch line has a water services control valve assembly concealed in a cupboard or under a bench located inside the unit. As mentioned earlier, the hot water service valve assembly comprises a hot water isolation valve, elbow joint, tempering valve and metering valve.
18. The hot water unit, main lines and ancillary lines are facilities associated with the supply of hot and cold water for the potential benefit of all units and are the responsibility of the owners corporation to maintain under s 24(1)(e).
19. I incline to the view that branch lines servicing individual units are an integral part of the reticulated hot and cold water supply provided for the potential benefit of all units and therefore the responsibility of the owners corporation to maintain.
20. This might be seen as inconsistent with the decision of a differently constituted tribunal in Castro v the Owners - Units Plan No 246 [2016] ACAT 111 (Castro). The question in Castro was whether the owners corporation or the applicant unit owner was responsible for the repair of damaged electrical cables servicing the applicant's unit. The unit owner argued that the cables were located in the roof space, which was common property and therefore the electrical cables were common property also. On that basis, responsibility for repairing damage to the cables caused by rodents lay with the owners corporation. The owners corporation contended that the electrical cables supplied electricity for the exclusive benefit of the unit owner and therefore the unit owner was responsible for their maintenance. The tribunal accepted that the roof space was common property and that the owners corporation must maintain it. The tribunal did not deal with the applicant's argument that the electrical cables also were common property. Instead, the tribunal considered whether the owners corporation was responsible for their maintenance under s 24(1)(e) of the UTMA. The tribunal doubted whether cabling for an electricity system could easily be divided into parts, such that one part could be said to be for the benefit of one owner and not another. However, noting that the applicant failed to make any submissions to the contrary, the tribunal found itself compelled to accept that the electricity cables were solely for the benefit of the unit owner and therefore not the owners corporation's responsibility to maintain.
21. In correspondence referred to earlier, Mr Johnston asserted that the reasoning in Castro defines the owners corporations' duty to repair common property. It is not clear to me why he should rely so heavily on Castro. The decision does not help the respondent's case.
22. In any event, the decision in Castro turns on its own set of facts. It does not establish any principle of general application and the correctness of the decision is not in issue here.
23. A utility service may be provided for the potential benefit of all units even if, at a particular point in time, no units, or some but not all units are connected to the utility service. For a utility service to be provided for the potential benefit of all units, it must be possible for every unit to connect to the utility service, whether now or in the future, although the location of the connection point and the means of connection will depend on the nature of the utility service, the structure and configuration of the building and potentially other factors.
24. In this case, the water reticulation system in each tower, comprising main lines, loop lines and individual branch lines is an integrated system where each part is indispensable to making the hot and cold water supply potentially available for connection to each unit.
25. Connection to the supply is achieved by means of the water services control valve assembly located in a cupboard or under a bench or sink inside each unit. The isolation valves allow the hot and cold water supply to the unit to be turned on or off as required. Adapting the words of s 24(1)(e), the isolation valve and the whole water services control valve assembly is not a facility associated with the provision of water supply for the potential benefit of all units. Rather, it is a facility associated with the provision of water supply to the unit served by the water services control valve assembly and is for its benefit only.
26. For these reasons, I find that the respondent was responsible to maintain the water services control valve assembly in her unit and not the owners corporation.
27. Accordingly, this ground of defence fails.

Did the applicant assume responsibility for the maintenance and repair of the pipework pending completion of the hydraulic upgrade?

1. The respondent contended that as a consequence of the decision to proceed with the hydraulic upgrade made at the annual general meeting on 20 March 2023, the owners corporation assumed responsibility for maintaining the valve assemblies pending the execution of the remedial works. The submission was not developed at the hearing.
2. I have referred to the relevant parts of the minutes of the annual general meeting recording the decisions made in relation to the hydraulic upgrade earlier in these reasons. They provide no support for the respondent's submission.
3. This ground of defence fails.

Was the taking of legal action against the respondent unauthorised?

1. The respondent submitted that the debt application should be dismissed because it was commenced without proper authorisation.
2. Decisions about taking legal action are governed by s 2.5 of schedule 2 of the UTMA. Section 2.6 concerns the taking of urgent legal action and is not relevant.
3. Section 2.5 applies if the executive committee proposes to take legal action, as happened here.
4. 'Taking legal action' is defined in s 2.5(3) as beginning a proceeding, beginning to defend a proceeding, or continuing, or continuing to defend, a proceeding.
5. Relevantly, s 2.5(2)(b) provides that the executive committee must not take legal action on behalf of the owners corporation unless the costs of taking the legal action are reasonably estimated by the corporation's legal representative to be not more than the amount prescribed by regulation.
6. 'Costs' of taking legal action, for the purposes of the section, is defined in s 2.5(4) to mean the legal costs and disbursements incurred by the owners corporation for its legal representation for the legal action.
7. The amount prescribed by regulation for the purposes of s 2.5(2)(b) is the lesser of $750 for each unit and $10,000 - see s 9 of the Unit Titles (Management) Regulation 2011. Given the number of units, in this case the prescribed amount is $10,000.
8. For present purposes it is necessary to focus on the executive committee's decision to begin the proceeding against the respondent. The costs of taking the legal action were estimated by the applicant's counsel at $9,400. The respondent did not submit that the estimate was not a reasonable estimate. Considering the terms of counsel's fee disclosure letter and my knowledge of the background to the dispute, I am satisfied that the costs of the legal action were reasonably estimated.
9. When the tribunal filing fee of $366 is added to counsel's estimate, the total is less than the prescribed amount. It follows that the executive committee did not require approval by the owners corporation to take the legal action.
10. Counsel for the applicant flagged a potential issue whether approval of the owners corporation was necessary for the executive committee to continue the proceeding where the cost of him appearing on the second day would cause the applicant's costs to exceed the prescribed amount. Counsel informed me that, as a precautionary measure, the owners corporation intended to hold a general meeting in early April to ratify the taking of legal action against the respondent.
11. In my view this is unnecessary. The executive committee was not called upon to decide whether to continue the proceeding. The decision to commence the proceeding did not require the owners corporation's approval for the reasons already explained. If the hearing had concluded on 18 February, as anticipated, no question of continuing the proceeding would arise. The Tribunal's decision to grant leave to the respondent to reopen her case and list the matter for an extra day of hearing on 12 March 2025 was not foreseeable and did not call for the executive committee to decide to continue the proceeding. It was compelled to do so by order of the Tribunal. I am unable to accept that in those circumstances the applicant could 'continue the proceeding' by having its counsel appear and make submissions on 12 March 2025 only with the approval of the owners corporation by ordinary resolution, which in any event could not be obtained within the timeframe required by the Tribunal's orders. The respondent did not submit otherwise.
12. This ground of defence fails also.

Did the applicant incur an expense or carry out work in carrying out its functions?

1. The applicant incurred an expense of $1,803.40 for the invoiced cost for Water Tight to attend the premises on 5 October, 8 November and 14 November 2022 to investigate and repair the cause of the water leak.
2. Whether the applicant incurred the expense in carrying out its functions is to be determined objectively.
3. Section 16 of the UTMA states that the functions of an owners corporation are enforcement of its rules, the control, management and administration of the common property and any other function given to it under the UTMA or another territory law.
4. The default rules in schedule 1 of the Unit Titles (Management) Regulation 2011 applied at relevant times until the applicant adopted alternate rules in 2024. Rule 1.3(1) of the default rules provided that a unit owner must ensure that the unit is in a good state of repair. Rule 1.9(1) provided that a unit owner must not use the unit, or permit it to be used, in a way that causes a nuisance or substantial annoyance to an owner, occupier or user of another unit. The escape of water from one unit causing damage to another may involve a breach of rule 1.3(1) or 1.9(1) depending on whether the cause of the leak is a failure to ensure that the unit is in a good state of repair or results from the use of the unit - e.g., allowing a bath to overflow.
5. The escape of water from one unit causing damage to another may be an "emergency" within the meaning of s 28(2) of the UTMA, which authorises the owners corporation to enter a unit without notice to the owner or occupier if access is required in an emergency. 'Emergency' in that context should be given it ordinary meaning - namely, a sudden or unforeseen occurrence calling for immediate action. The section provides an example of an emergency where water is flowing from one unit into another unit, causing damage. An example is not exhaustive and may extend but does not limit the meaning of a provision to which it relates: see Legislation Act 2001, s 132(1).
6. The evidence establishes that the new owner of unit 24 notified the strata manager on 18 September 2022 that there was damage to the ceiling of her unit and that water was leaking into a bucket she had placed as a preventative measure. A photograph of the ceiling taken by Mr Johnston in January 2023, a copy of which is at page 69 of exhibit R1, shows that the flow of water in the period before the leak was fixed permanently was sufficient to cause an extensive wet patch and a hole in the ceiling plaster.
7. I am satisfied that those circumstances - involving the ingress of water from one unit into another, causing damage to property and constituting a nuisance - meet the requirements of an "emergency" for the purposes of section 28(2), in the sense of an unforeseen occurrence calling for immediate action. As things turned out, it took some time for the strata manager to arrange for Water Tight to attend the premises to inspect and carry out repairs. This does not detract from the conclusion that the circumstances were unforeseen and called for immediate action.
8. The respondent submitted that it is significant that the work order issued to Water Tight on 27 September 2022 stated that the 'property affected' was the common property. This was said to be an admission that the leak came from common property. I have dealt with this issue already. However, the significance of nominating the common property as the 'property affected' lies elsewhere. Although, as the work order recorded, the leak previously was thought to "come from the unit above which is U35", this was not certain and Water Tight was asked to "investigate where the leak onto U24 ceiling is originating from". Where it was possible that the leak was originating from the common property or from facilities for the supply of water or drainage services that the owners corporation was responsible to maintain, Water Tight was required to investigate that possibility also.
9. I am satisfied that the applicant incurred the expense in carrying out its functions of enforcing the rules, taking appropriate action to resolve an emergency within the meaning of s 28(2), and carrying out its maintenance obligations under s 24(1)(a) and (e) of the Act.

Was the incurring of the expense or the carrying out of work necessary because of a wilful or negligent act of the respondent?

1. The answer is 'No'. Although the applicant claimed that the respondent negligently omitted to fix the leaking plumbing in her unit, I have accepted her evidence that she was not aware of the leak before 5 October 2022.

Was the incurring of the expense or the carrying out of work necessary because of a breach of the rules by the respondent?

1. Rule 1.3(1) of the default rules provides that a unit owner must ensure that the unit is in a good state of repair.
2. The requirement that a unit owner "must ensure", means that it is sufficient to establish a failure to "ensure" and therefore, breach of the rule, if it is shown that a unit is not in a good state of repair. It is not necessary to show that a unit owner knew or ought to have known that the unit was not in a good state of repair.
3. I have found that the hot water service control valve assembly was unit property and that it was not in a good state of repair, causing it to leak. I find, therefore, that the respondent was in breach of rule 1.3(1).
4. Where the water leak was causing damage to unit 24 and constituted a nuisance, I am satisfied that breach of the rule made it necessary for the applicant to incur the expense of investigating and repairing the cause of the leak.
5. The respondent submitted that it would have been sufficient for Water Tight to have installed a drip tray under the leaking valve assembly and instructed the respondent to keep an eye on it and empty it whenever necessary, pending the completion of the hydraulic upgrade. Alternatively, it should have been left to the respondent to arrange and pay for any necessary repairs.
6. Both submissions must be rejected. As I have found, the leaking valve assembly called for immediate action to prevent continuing damage to the unit 24 ceiling, abate the nuisance and ensure compliance with rule 1.3(1). The work order was issued on 27 September 2022, when, on the respondent's evidence which I have accepted, the strata manager was unaware that there had been a change in ownership of unit 36. The applicant did not know and had no reason to know that the respondent had taken up residence in the unit only recently and that the leak had gone unnoticed by her.
7. In those circumstances, the applicant would have been derelict in carrying out its functions if it had not arranged and paid for the permanent repair of the leak.

1. The respondent relied on a written quotation by Level Plumbing, dated 19 April 2024, as the basis for claiming that the cost charged by Water Tight was unreasonable. The quotation gave a cost of $269.30 for the removal and reinstatement of the leaking elbow joint and the installation of a catchment tray under the leaking hot water meter to prevent water leaking into the unit below, which the customer would be shown how to empty. The purpose was stated to be to "make safe only" and "not a permanent repair".
2. There are several problems with this evidence.
3. First, the person who prepare the quotation was not called as a witness. There was no evidence about how the quotation was prepared - for example, whether it was based on a site inspection, photographs or verbal instructions given by the respondent or Mr Johnston.
4. Second, labour was costed at $136 plus GST but no details were given of the hourly rate or how long the work was estimated to take.
5. Third, the quotation was not shown to Mr Clark, who prepared the Water Tight invoice, and he was not asked to comment on its adequacy.
6. Finally, the work covered by the quotation does not correspond to the work for which Water Tight charged $1,803.40. It provides for a temporary rather than permanent repair. No allowance is made for the cost of investigating where the leak was coming from. The evidence shows that once the leak was traced to the hot water supply control valve assembly in unit 36, it was not just the elbow joint that was found to be leaking and in need of repair. The whole valve assembly except the isolation valve had to be disassembled, cleaned and reassembled with Loctite string on 5 October 2022. Subsequently, it was found necessary to replace the isolation valve, requiring the water supply to the building to be shut down and the system bled once the repairs were done.
7. The respondent bears the onus to establish that the cost charged by Water Tight is unreasonable. As the respondent has failed to discharge the onus, this ground of defence fails.

Is the respondent indebted to the applicant for $1,803.40?

1. It follows from my earlier findings that the respondent is liable to the applicant for the debt in the amount of $1,803.40.
2. The applicant claims interest on that amount at the rate of 10% per annum pursuant to s 94(1) of the UTMA.
3. The sum of $1,803.40 was charged to the respondent's account in late December 2022 or early January 2023. As mentioned earlier, it was the realisation that the applicant was pursuing payment of the Water Tight invoice and the communications from the owner of unit 24 in mid-January 2023 seeking recompense for the cost of repairs to her ceiling, that prompted the respondent to retain Mr Johnston's services in January 2023. For the purposes of calculating interest, it is appropriate to take 31 January 2023 as the latest date by which payment was due.
4. The respondent is liable to pay $2,195.21 to the applicant for the expense incurred in relation to the work done by Water Tight, including interest of $391.91 from 1 February 2023 to 4 April 2025.

Are the debt recovery expenses, including legal expenses relating to this application, reasonably incurred and reasonable in amount?

1. The applicant claims in addition, legal and debt recovery expenses totalling $21,524 plus interest at 10% per annum pursuant to s 94(1) of the UTMA.
2. The respondent submitted that the applicant was not entitled to recover any of these expenses because the legal action was commenced without proper authorisation. I have found against the respondent on that issue. The respondent did not challenge any component of the expenses on any other basis.

1. The type of expenses that may be claimable under s 31 in relation to a debt recovery proceeding may include legal professional costs and disbursements incurred in bringing the, filing and hearing fees charged by the ACAT and administrative costs and disbursements charged by a strata manager or debt collection agency in connection with the proceeding. The applicant bears the onus to show that it was reasonable for the applicant to incur expenses of the type claimed and that each component of the expenses is reasonable in amount: In the Matter of Ruling Tribunal Section 31 of the Unit Titles (Management) Act 2011 [2017] ACAT 56 at [101] - [104].
2. To fall within s 31, the incurring of the expenses must be 'necessary' because of the respondent's refusal to pay the debt. Even if debt recovery action is necessary, it must be carried out in a way that is reasonable, having regard to the circumstances of the case, the parties, the nature of the debt and any other relevant circumstances: The Owners - Units Plan No 3182 v Black [2018] ACAT 6 at [35] (Black(No 1)).
3. Formal debt recovery proceedings generally should not be resorted to without first taking preliminary action, such as issuing reminder notices and letters of demand: Black (No 1) at [37]. The commencement of a proceeding without taking reasonable steps to resolve the dispute may result in a finding that the costs of the proceeding were not reasonably incurred: The Owners - Units Plan No 666 v Quaid [2020] ACAT 87.
4. If legal action becomes necessary, there is nothing prima facie unreasonable about an owners corporation retaining a debt collection agency or legal representation to pursue payment of the debt. Ultimately, whoever is retained, the issue is whether the costs incurred as a result are reasonable: Black(No 1) at [44].
5. In determining whether costs are reasonable, it is necessary to consider whether the expenses are fair and reasonable in terms of the rates charged and the work done: Black(No 1) at [51].
6. Although not directly applicable to the recovery of expenses under section 31, the criteria for costs assessment of legal costs by the Supreme Court set out in section 300(2) of the Legal Profession Act 2006 and considerations relevant to the amount a registrar may allow for a solicitor's care and conduct of a proceeding in section 4.1 of schedule 4 of the Court Procedures Rules 2006 may be useful as a guide to assessing whether legal expenses incurred in a particular matter may be unreasonable: Black(No 1) at [55] -[57]. Relevant considerations include the complexity of the proceeding, the difficulty and novelty of any question raised in the proceeding, the importance of the proceeding (including to a party), the amount involved, and the skill, labour, specialised knowledge and responsibility involved in the proceeding on the part of the solicitor.
7. The tribunal must bring an independent mind to bear on the relevant issues and even in the absence of any objection, must be satisfied that the owners corporation has at least a prima facie case for the recovery of the expenses claimed: Black(No 1) at [60].

1. The applicant claims $220 paid to CCA comprising an amount of $77 charged for a letter of demand to the respondent sent on 20 February 2024, $88 charged for correspondence to Mr Johnston on 3 July 2024 forwarding legal advice from Proctor Legal and $55 charged for communications with the strata manager on 20 August 2024 relating to the appointment of Proctor Legal to take recovery action against the respondent.
2. By February 2024, the debt had been outstanding for more than a year and the respondent had made it abundantly clear she had no intention of making payment. In those circumstances, I am satisfied that it was appropriate for the applicant to incur the expense of referring the debt to CCA for collection. The amounts charged by CCA are within the range that the ACAT allows routinely in section 31 debt applications. I am satisfied that the charges are reasonable in amount.
3. According to the CCA invoices, the due dates for payment were 27 February 2024, 3 July 2024 and 20 August 2024. As no interest calculation was provided, I propose to take 20 August 2024 as the starting date for the calculation of interest on the full amount.
4. The respondent is liable to pay $233.68 to the applicant for CCA's costs, including interest pursuant to section 94(1) of the UTMA of $13.68 from 20 August 2024 to 4 April 2025.

Costs and disbursements charged by Proctor Legal

1. The applicant claims $2,618 paid to Proctor Legal for costs and disbursements incurred in providing advice in relation to the respondent's liability for the debt. The request for advice followed extensive written communications from Mr Johnston to which I have referred earlier, including the lengthy 'summary' report sent to the strata manager on 18 May 2023 recommending, among other things, that "should legal advice be required I recommend that a qualified legal practitioner be engaged", a Calderbank offer made on 26 April 2024 asserting that the respondent had incurred legal costs and disbursements in the order of $2,500 and offering to settle the debt by the respondent paying a sum of $300 to the applicant, and a letter to CCA sent on 14 May 2024 asserting that the respondent would vigorously defend any claim brought in the ACAT and inviting the applicant to make an offer of settlement "excluding all fees, penalties and interest".
2. I am satisfied that it was reasonable for the applicant to incur the expense of seeking legal advice. Given that in preparing the advice, Proctor Legal had to consider a whole range of issues raised by Mr Johnston in earlier correspondence, I am satisfied that the costs and disbursements are reasonable in amount. According to the invoice, payment was due on 3 July 2024.
3. The respondent is liable to pay $2,815.25 to the applicant for Proctor Legal's costs and disbursements, including interest of $197.25 pursuant to section 94(1) of the UTMA from 3 July 2024 to 4 April 2025.

1. The applicant decided to commence legal action against the respondent in the ACAT and briefed counsel directly rather than instruct a firm of solicitors. I am satisfied that appropriate steps were taken to resolve the matter without recourse to legal action and, considering Mr Johnston's involvement in the matter, that there was no reasonable prospect of the respondent agreeing to pay the debt or reaching a commercial settlement that might be considered appropriate in the circumstances.
2. In those circumstances, I am satisfied that it was reasonable for the applicant to incur the expense of commencing legal action in the ACAT, including the expense of preparing and lodging the application and paying the filing fee.
3. Considering the background to the dispute, the assertions made in Mr Johnston's extensive communications on the respondent's behalf, the broader implications of a finding, contrary to the position taken by the applicant in dealing with other unit owners over a period of years, that the applicant rather than individual unit owners was responsible to maintain the water services control valve assemblies throughout the apartment complex, I am satisfied that it was reasonable for the applicant to incur the expense of obtaining legal representation for the purpose of bringing the action.
4. I am aware from my own long experience as a barrister, that experienced counsel often are much more cost effective than solicitors charged out at the same or higher hourly rates. In this case, Proctor Legal's hourly rate was $700 (ex GST). Counsel's hourly rate was $400 (ex GST). It may have been possible for the applicant to retain less expensive (and necessarily, less experienced) counsel. However, given the nature of the proceeding and the importance of the outcome to the applicant, I am satisfied that it was reasonable for the applicant to incur the expense of briefing counsel of its choice directly at an agreed hourly rate of $400 (plus GST), rather than retaining a firm of solicitors to act.
5. Although the respondent made no submissions on the issue, the Tribunal is not excused from making its own assessment of whether the expenses charged by counsel are fair and reasonable in terms of the work done, the time taken and the costs charged for each item.
6. Counsel's invoice dated 17 February 2025 was for $9,724 and included an itemised and individually costed description of all work done since delivery of the brief on 26 September 2024 and included an allowance for the expected cost of the hearing on 18 February 2025 based on an attendance for 3.5 hours. I have made my own assessment based on my knowledge of the issues, the manner in which each party conducted their case and the documents and other material provided to the Tribunal. I am satisfied that counsel's fees of $9,724 are fair and reasonable considering the work done, the time taken and the costs charged for each item of work.
7. As it happened, the hearing on 18 February finished at 5:47 pm and, as mentioned earlier, as a result of leave to reopen given to the respondent, it was necessary to list the matter for further hearing on 12 March 2025. Counsel charged for an additional 7.5 hours work, at a cost of $3,300, comprising an additional 4 hours for the hearing on 18 February, 2 hours for the hearing on 12 March and 1.5 hours for additional preparation. I am satisfied that the additional fees charged by counsel are fair and reasonable in the circumstances.
8. The due date for payment of counsel's invoice for $9,724 was 3 March 2025. As it appears counsel's terms provided for payment within 14 days of the date of invoice, it is not appropriate to calculate interest on the further amount of $3,300, which may not have been invoiced at the date of the further hearing.
9. The respondent is liable to pay $13,109.25 to the applicant for counsel's fees, including $85.25 interest on the amount due under the first invoice pursuant to section 94(1) of the UTMA from 3 March to 4 April 2025.

1. The applicant claims $792.00 charged by Water Tight for 4 hours of Nathan Clark's time in attending the hearing to give evidence on 18 February 2025, based on his standard labour charge out rate of $198 per hour plus GST. The invoice was due for payment on 17 February 2025.
2. Mr Clark was an important witness and it was necessary for him to attend the hearing to give evidence in person. I am satisfied that it was reasonable to incur the expense and that it is reasonable in amount.
3. The respondent is liable to pay $801.98 to the applicant for witness expenses, including $9.98 interest pursuant to section 94(1) of the UTMA from 17 February to 4 April 2025.

1. The applicant claimed $4,504 for fees charged by the strata manager, Signature Strata Pty Ltd, in connection with the proceeding. The invoices in support of the claim are reproduced in both exhibit A and exhibit B. The applicant also relied on a units plan statement for unit 36, a copy of which is at page 4 of exhibit B and the strata management agreement that came into force on 23 September 2024.
2. It is necessary to consider each component of the claimed expenses to determine whether they meet the double reasonableness test.
3. The first component is an amount of $121 for a third reminder letter sent on 12 December 2023 and a further amount of $121 for a final reminder letter sent on 18 January 2024. The ACAT routinely disallows such claims on the basis that, while it is accepted that it is reasonable for an owners corporation to incur the expense of sending more than one reminder letter, in the absence of specific evidence establishing the reasonableness of the charge for doing so the ACAT generally allows only $55.00 for second and subsequent reminder letters: see The Owners - Units Plan No 3788 v Black [2018] ACAT 24 (Black (No 2)) at [2], [6]; The Owners - Units Plan No 371 v Nabua [2018] ACAT 29 at [2], [6] (Nabua); The Owners - Units Plan No 3964 v Wang [2018] ACAT 32 (Wang); The Owners - Units Plan No 1565 v Ruff [2018] ACAT 31 at [2], [7] (Ruff).
4. Accordingly, this component is allowed at $110.
5. The second component is an amount of $550 for referring the matter to CCA for debt recovery on 16 February 2024. The ACAT routinely disallows such claims as being unreasonable in amount. While it is accepted that it is reasonable for an owners corporation to incur the expense of referring a matter to a credit collection agency for commencement of legal action, in the absence of specific evidence establishing the reasonableness of the charge for doing so the ACAT generally allows only $250.00: Black (No 1) at [86]; Nabua at [2], [6]; Wang at [2], [5]; Ruff at [2], [7].
6. Accordingly, this component is allowed at $250.
7. Schedule B of the strata management agreement allows for additional services that are not covered by Signature Strata's standard fee, to be provided at additional cost. Schedule C sets out the applicable service charges. These include a service charge of $330 per hour charged in 15 minute intervals for "ACT Civil and Administrative Tribunal and/or Court documentation/appearance".
8. An invoice for $247.50, issued on 9 October 2024, was for the time taken to drive from Signature Strata's offices in Barton to the ACAT, lodge the application (including waiting time) and drive back to Barton, a total of 47 minutes charged at $330 per hour. While I accept that it was reasonable to incur the expense of lodgement, including the cost of travelling to and from the ACAT, I am not satisfied that $330 per hour is a reasonable amount to charge for what is essentially a routine administrative task requiring no particular skill and one that is commonly accomplished, without any particular difficulty, by litigants in person. Schedule C provides for attendances at the Land Titles Office to be charged at $165.00 per hour in 15 minute intervals. In my view this is a more appropriate basis for determining a reasonable charge for lodging the application.
9. Accordingly, this component is allowed at $123.75.
10. The next invoice for $1,155 was issued on 10 February 2025 in anticipation of the hearing on 18 February 2025, calculated at 3.5 hours (from 9:30 a.m. to 1:00 p.m.) at $330.00 per hour. I am satisfied that it was reasonable for the applicant to incur the expense of having a representative of the strata manager attend the hearing for the purpose of instructing counsel. I have some doubt about whether the hourly charge is reasonable where the purpose of the attendance is to give instructions, rather than to represent the owners corporation at a hearing as commonly occurs in unit titles applications. However, I am mindful of the fact that counsel appeared without an instructing solicitor so that the strata manager's role perhaps was more akin to that of an instructing solicitor than a client. In the absence of a specific objection by the respondent and without the benefit of submissions by the parties, I am prepared to accept the hourly rate as reasonable in the circumstances.
11. The applicant claimed a further $2,310 for an additional 5 hours for attendance at the hearing on 18 February 2025 after 1:00 pm and 2 hours for attendance at the hearing on 12 March 2025. For the reasons just given, I am satisfied that the expense was reasonably incurred and reasonable in amount.
12. In the absence of an interest calculation provided by the applicant, I have taken 24 February 2025, being the due date for payment of Signature Strata's last invoice, as the starting date for the calculation of interest. I have not allowed interest on the further amount charged for attendance at the hearing on 18 February and 12 March 2025.
13. The respondent is liable to pay $3,966.26 to the applicant, including $17.51 interest pursuant to section 94(1) of the UTMA, for the strata manager's fees.

1. In summary, the applicant is entitled to recover the following expenses from the respondent as a debt owed under section 31 of the UTMA together with interest calculated in accordance with section 94(1) of the UTMA:

(a) $2,195.21, including interest of $391.91, for the invoiced cost of the work done by Water Tight;

(b) $233.68, including interest of $13.68, for costs paid to CCA;

(c) $2,815.25, including interest of $197.25, for costs and disbursements paid to Proctor Legal;

(d) $13,109.25, including interest of $85.25, for counsel's fees;

(e) $801.98, including interest of $9.98, for witness expenses;

(f) $3,966.26, including interest of $17.51, for the strata manager's fees.

1. As the applicant has been successful it is appropriate to require the respondent to pay $366 to the applicant for the tribunal filing fee: see section 48(2)(a)(i) of the ACT Civil and Administrative Tribunal Act 2008.
2. For the earlier stated reasons, I find the respondent liable to pay $23,702.63 to the applicant.
3. The result is clearly unfortunate for the respondent. While I can understand the respondent thinking that Mr Johnston's early involvement in the matter might be of benefit to her, in the end it has proven to be counterproductive. Not only were his opinions on liability misconceived, but his dealings with the executive committee of the applicant, the strata manager and CCA and his conduct of the proceeding on behalf of the respondent are largely responsible for the disproportionately large cost of recovering a relatively modest debt that should have been paid by the respondent promptly and without demur.